Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia - [2004] FCA 472

FEDERAL COURT OF AUSTRALIA
The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472
NATIVE TITLE – application for determination – whether the claimants had a connection with the claim area at the time of sovereignty, and if so, whether this connection has continued since sovereignty – whether the applicants (from 7 different landholding groups) constitute a single community – rights claimed accepted as not exclusive – whether the rights and interests claimed have been extinguished (either totally or partially) by the granting of various non-exclusive pastoral leases and grazing licences where the leases contained reservations protecting some rights of the Aborigines – whether the rights and interests claimed have been extinguished (either totally or partially) by the granting of a crown lease perpetual, with the intention that this land become a national park and camping ground – whether the rights and interests claimed have been extinguished (either totally or partially) by the undertaking of ‘public works’, such as building roads, barbeques and interpretive panels and shelters.
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 3(1), 71(1)
Federal Court of Australia Act 1976 (Cth) ss, 17(4), 50
Native Title Act 1993 (Cth) ss 4(6), 10, 15, 19, 23A, 23B, 23D, 23E-234, 24ID, 24KA, 44H, 47B, 61, 86, 223, 225, 228-230, 232, 232A, 237, 238, 251D, 253
Native Title Amendment Act 1998 (Cth)
Northern Territory Acceptance Act 1910 (Cth)
Northern Territory Acceptance Act 1920 (Cth) s 10
Northern Territory (Administration) Act 1910 (Cth)
Northern Territory (Self-Government) Act 1978 (Cth) ss 57, 69
Racial Discrimination Act 1975 (Cth) s 9, 10
Crown Lands Act 1992 (NT) ss 24, 37
Crown Lands Ordinance 1912-1923 (Cth)
Crown Lands Ordinance 1924-1927 (Cth)
Crown Lands Ordinance 1931-1959 (Cth)
Crown Lands Ordinance 1964 (Cth) s 23(b)
Crown Lands (Validation of Proclamations) Ordinance 1976 (Cth)
Crown Lands Ordinance No 3 1978 (Cth)
Pastoral Lands Act 1992 (NT) ss 38(2), 130, 131
Minerals (Acquisition) Act (NT)
Northern Territory Aboriginal Sacred Sites Act (NT)
Parks and Wildlife Commission Act (NT) ss 9, 19, 20, 27, 29, 39
Petroleum Act 1984 (NT)
Territory Parks and Wildlife Conservation Act (NT) ss 12, 14, 18, 122
Validation of Titles and Actions Act 1994 (NT)
Validation (Native Title) Act (NT) ss 8, 9J, 9M, 11
Northern Territory Land Act 1872 (SA)
The Northern Territory Crown Lands Act 1890 (SA)
The Northern Territory Crown Lands Consolidation Act 1882 (SA)
The Northern Territory Surrender Act 1907 (SA) s 7
R v Kearney; Ex parte Japananglea (1984) 158 CLR 395 cited
Western Australia v Ward (1997) 76 FCR 492 cited
Western Australia v Ward (2002) 191 ALR 1; [2002] HCA 28 (Ward) applied
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 applied
Wilson v Anderson (2002) 76 ALJR 1306; [2002] HCA 29 applied
The Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory (2000) 104 FCR 380; [2000] FCA 923 applied
Northern Land Council v Olney (1992) 34 FCR 470 applied
Mabo v Queensland (No 2) (1992) 175 CLR 1 applied
Fejo v Northern Territory (1998) 195 CLR 96 applied
Commonwealth of Australia v Yarmirr (2001) 75 ALJR 1582; [2001] HCA 56 applied
Wik Peoples v Queensland (1996) 187 CLR 1 applied
Yarmirr v Northern Territory of Australia (1998) 156 ALR 370 applied
Ward v Western Australia (1998) 159 ALR 483 applied
Re Waanyi People’s Application (1995) 129 ALR 100 cited
Western Australia v Ward (2000) 99 FCR 316 applied
Mason v Tritton (1994) 34 NSWLR 572 applied
Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 cited
Yanner v Eaton (1999) 166 ALR 258 applied
De Rose v State of South Australia [2002] FCA 1342 applied
Western Australia v Commonwealth of Australia (1995) 183 CLR 373 applied
Hayes v Northern Territory (1999) 97 FCR 32 cited
Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 applied
THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAY NATIVE TITLE CLAIM GROUP v NORTHERN TERRITORY OF AUSTRALIA & CONSERVATION LAND CORPORATION
DG 6002 of 1998
MANSFIELD J
23 APRIL 2004
ALICE SPRINGS

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

DG 6002 OF 1998

BETWEEN:

THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAY NATIVE TITLE CLAIM GROUP
APPLICANT

AND:

NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

CONSERVATION LAND CORPORATION
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

23 APRIL 2004

WHERE MADE:

ALICE SPRINGS

THE COURT ORDERS DECLARES AND DETERMINES:
1.Native title exists in relation to the determination areas which comprise the land and waters covered by the Northern Territory Portions 4386 and 4387 and the Town of Hatches Creek.
The determination area does not include the areas set out in the Schedule.
2.The persons who hold the communal or group rights comprising the native title as common law holders are the Aboriginal persons who are:
(a)members of one or more of the seven landholding groups (Arrawatyen, Antarrengeny, Akweranty/Anwerret, Lyentyawal Ileparranem, Tyaw, Warwepenty and Kelantyerrang) by virtue of descent through his or her father’s father, father’s mother, mothers’ father and mother’s mother; or
(b)recognised by the persons referred to in sub-paragraph (a) hereof, as members of one or more of the seven landholding groups by virtue of non-descent based connections, including adoption or birthplace affiliation;
(c)spouses of persons referred to in sub-paragraphs (a) or (b) and are recognised, by the persons referred to in sub-paragraph (a) hereof, as having native title rights and interests in the determination area.

3.Subject to paragraphs 4 and 5, the nature and extent of the native title rights and interests recognised by the common law in relation to the determination area are the rights set out below, including the right to conduct activities incidental to them.
(a)the right to hunt and fish together and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax and to have access to and use of water on or in the land;
(b)the right to live on the land, to camp, erect shelters and other structures, and to travel over and visit any part of the land and waters;
(c)the right to engage in cultural activities on the land, to conduct ceremonies and hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters and to participate in cultural practices relating to birth and death, including burial rights;
(d)the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements;
(e)the right to make decisions about access to the land and waters by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(f)the right to make decisions about the use and enjoyment of the land and waters and the subsistence and other traditional resources thereof, by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(g)the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters;
(h)the right to control the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters;
(i)the right to determine and regulate the membership of and recruitment to a landholding group;

4.In relation to that part of the determination area identified as Northern Territory Portions 4386 and 4387 the native title rights and interests are not exclusive of the rights and interests of others.

5.In relation to that part of the determination area identified as the Town of Hatches Creek the native title rights and interests are exclusive of the rights and interests of others, subject to subclause 7(b) hereof.

6.The native title rights and interests of members of the respective landholding groups referred to in paragraph 2 above, are held subject to and are exercisable in accordance with the traditional laws and customs of the common law holders.

7.The nature and extent of other interests in relation to the determination area (the other rights and interests) are as follows:
(a)In relation to Northern Territory Portions 4386 and 4387:
(i)the interest of the Conservation Land Corporation as the holder of Crown Lease Perpetual No 1117;
(ii)the interest of the Parks and Wildlife Commission of the Northern Territory in the care, control and management of the land comprised in Crown Lease Perpetual No 1117 pursuant to its functions and powers under the Parks and Wildlife Commission Act (NT);
(iii)the interest of the Parks and Wildlife Commission in any buildings, structures or other works constructed or established on the land;
(iv)interests of the Crown pursuant to statute or otherwise in exercise of its executive power or held as the result of the assertion of sovereignty;
(v)rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power;
(vi)rights of access to the land by agents, employees or instrumentalities of the Crown (in right of the Territory or the Commonwealth) as required in the performance of their statutory or common law duties;
(vii)the interests of members of the public with rights of access to the land arising under statute.

(b)In relation to the Town of Hatches Creek, the interest of any person with a right of access to the land conferred by or arising under a law of the Northern Territory or the Commonwealth.

8.The relationship between the native title rights and interests described in paragraph 3 and the other rights and interests referred to in paragraph 7 is that:
(a)the other rights and interests co-exist with the native title rights and interests;
(b)(i) to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist, but have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and
(i)otherwise, the existence of the native title rights and interests do not prevent the doing of the activity required or permitted to be done by or under the other rights and interests; and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevails over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

(c)the doing of any activity giving effect to the other rights and interests prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them;
(d)in relation to the rights and interests conferred by or arising under Crown Lease Perpetual No 1117 (the lease):
(i)the Crown Lands Act (NT) and the lease are the source of the rights and interests of the Conservation Land Corporation, the function of which is set out in s 39 of the Parks and Wildlife Commission Act (NT);
(ii)section 39(6) of the Parks and Wildlife Commission Act (NT) is the source of the rights and interests of the Parks and Wildlife Commission, the functions of which are set out in s 19 of the Act and which are limited to promoting the conservation and protection of the natural environment and the protection, conservation and sustainable use of wildlife;
(iii)the land and waters comprised in the lease have not been declared a park or reserve under s 121(1) of the Territory Parks and Wildlife Conservation Act (NT);
(iv)Aboriginal people who have traditionally used the land and waters have the right to continue to do so in accordance with Aboriginal tradition for hunting, food gathering (otherwise than for the purpose of sale) and for ceremonial and religious purposes under s 122 of the Territory Parks and Wildlife Conservation Act (NT);
(v)Aboriginal people have a right of access to sacred sites in accordance with Aboriginal tradition under s 46 of the Northern Territory Aboriginal Sacred Sites Act (NT).

(e)In relation to the Northern Territory Portions 4386 and 4387, the native title rights and interests that are not inconsistent with and may be exercised notwithstanding the other rights and interests referred to in paragraph 7(a) are:
(i)the right to use the land and waters for hunting, fishing and the gathering of traditional resources for food and other domestic purposes, according to traditional laws and customs;
(ii)the right to use the land and waters for ceremonial and religious purposes, including conducting ceremonies, participating in other cultural practices and the transmission of cultural knowledge;
(iii)the right to live on the land for the purpose of conducting such activities;
(iv)the right to make decisions about access to and the use and enjoyment of the land and waters and the traditional resources thereof, for the purpose of conducting such activities;
(v)the right to access places and areas of importance and to maintain and protect them from damage, disturbance or interference;
(vi)the right to assert and to be acknowledged as the Aboriginal owners of the land and waters in accordance with traditional laws and customs.

Note: In respect of the rights referred to in paragraph 3(e) and paragraph 3(f) hereof, the Court has determined that those rights are inconsistent with the rights granted by, or by reason of Crown Lease Perpetual No 1117 to the Conservation Land Corporation over Northern Territory Portions 4386 and 4387. Those rights continue to exist but have no effect in relation to the grant of the Crown Lease Perpetual 1117 because the non-extinguishment principle applies to them: section 238, Native Title Act 1993 (Cth).
AND THE COURT FURTHER ORDERS THAT
9. The native title is not to be held in trust.
10. An Aboriginal Corporation whose name will be provided within 3 months is to:
(a)be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth); and
(b)perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth).

SCHEDULE
Exclusions from the Determination Area
1.Areas subject to previous exclusive possession acts, having been excluded from the native title determination application, are excluded from the determination area in accordance with section 61A of the Native Title Act 1993 (Cth).
Public works
The areas on which the following public work as defined in s 253 of Native Title Act 1993 (Cth) are situated, including the land and waters defined in s 251D of the Act, are excluded from the determination area:
(i)the two wheel drive access road to the Old Police Station Waterhole (Athethew) (North Loop);
(ii)the four wheel drive access road to the Irminga (Irrmeng) Waterhole and Whistle Duck Creek day use camping area;
(iii)the land and waters adjacent to the two roads referred to in (i) and (ii) hereof the use of which the construction, establishment or operation of the two roads.

2.To avoid doubt, the roads excluded from NT Portions 4386 and 4387 as delineated on plan number S93/20A dated 30 August 1993 are excluded from the determination area.

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

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

DG 6002 OF 1998

BETWEEN:

THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAY NATIVE TITLE CLAIM GROUP
APPLICANT

AND:

NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

CONSERVATION LAND CORPORATION
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE:

23 APRIL 2004

PLACE:

ALICE SPRINGS

REASONS FOR JUDGMENT
introduction

This is an application for determination of native title under the Native Title Act 1993 (Cth) (the NT Act) in relation to an area of land and waters south south-east of Tennant Creek in the Northern Territory. The application is brought on behalf of a claim group called the Alyawarr, Kaytetye, Warumungu, Wakay Native Title group.
The native title claim group is described by reference to its four language groups or tribal groups. It is also recognised that it can be described by its seven landholding or estate groups, with particular applicants being persons chosen to represent those landholding or estate groups, as follows:

Arrawatyen
Kwementyey (Gordon) Jangala Nappa
Lesley Foster Ampetyan

Antarrengeny
Nita Holmes Akemarr
Albert Bailey Akemarr

Akweranty/Anwerret
(referred to by either of
these names)

Kwementyey (Peggy) Wickham Apetyarr

Barry Wickham Apetyarr

Lyentyawel Ileparranem
(referred to by either of
these names)
Nita Holmes Akemarr
Albert Bailey Akemarr
Alan Philimac Kngwarrey

Tyaw
Alan Philmac Kngwarrey
Jemima Foster Apetyarr

Warwepenty
Murphy Jappanangka
Jorna Murphy Nappangardi

Kelantyerrang
Jimmy Jones Ampetyan

The applicants have submitted that each landholding group is associated with a particular part of the claim area and ‘connected with’ a particular type of Dreaming.
The Arrawatyen group is associated with the north, central and north-east portion of the claim area. In that area there exists Travelling Boys Dreaming and Rain Dreaming, which is particularly connected to the sites Athethew (Old Police Station Waterhole) and Irrmeng. Other sites of significance to the Arrawatyen include Alarlatwerrew, Arekenyarr-Anenk, Atetyerretyerr, Irlkwamp-Irlkwamp, Kerrkety and Kwepaney.
The Antarrengeny group is associated with the south central and north-east portion of the claim area. In that area there exists Travelling Boys Dreaming and Rock Wallaby Dreaming which is particularly associated with the sites Irrelerrelerr and Alarlanem. Other sites of significance to the Antarrengeny group include Alarlatwerrew, Antarrengeny and Athethew.
The Akweranty/Anwerret group is associated with the area surrounding, and including, that part of the claim area which is the Hatches Creek township. In that area there exists Emu Dreaming which is connected with the site Anurret.
The Lyentyawel/Ileparranem group is associated with the south-west and central portion of the claim area. In that area there exists Sugarbag Dreaming, which is connected with the site Ileparranem.
The Tyaw group is associated with the south-east portion of the claim area. In that area there exists Cloud Dreaming and Echidna Dreaming which is connected with the sites Yethel and Inap respectively. Other sites of significance to the Tyaw group include Anwerret and Arepeylarr.
The Warwepenty group is associated with the north-central and north-west portion of the claim area. In that area there exists Iangelarr (Bush Banana) Dreaming which is connected with the site Irrmeng. Other sites of significance to the Warwepenty group include Ileparranem.
The Kelantyerrang group is associated with the north central portion of the claim area. In that area there exists Lizard Dreaming which is connected with the site Irreyl.

Notwithstanding those particular estate group based affiliations with particular parts of the claim area, the applicants contend that the entire group as identified is a recognisable Aboriginal community capable of being granted native title under the NT Act, of which the landholding or estate groups are but sub-groups with particular more local affiliations. They claim that the native title group as identified has spiritual, physical and historical associations with the claim area, by descent from ancestors or by non-descent based connections, so that they have a communal native title in the claim area.
The application was first lodged on 20 November 1995 with the National Native Title Tribunal (the Tribunal). At that time, the NT Act required the lodging of an application with the Tribunal and its consideration by the Registrar of the Tribunal. Pursuant to s 63 of the NT Act, as then in force, the Registrar of the Tribunal accepted the application on 31 May 1996.
The application was opposed. The Registrar did not proceed to make any determination pursuant to ss 70, 71 or 73 of the NT Act. Consequently, the Registrar was required to lodge the application with the Court for decision. The application was duly lodged with the Court pursuant to s 74 of the NT Act on 20 May 1998.
On 30 September 1998, the NT Act was amended by the Native Title Amendment Act 1998 (Cth) (the 1998 Act). The amendment repealed Pt 3 of the NT Act, which included the provisions dealing with the lodgment of applications with the Tribunal and the Tribunal’s consideration of them. The Tribunal still has significant functions to perform under Pt 6 of the NT Act.
In accordance with s 61 of the NT Act, the Court is now charged with hearing and determining the applications. The application was amended pursuant to orders made on 9 July 1999, 20 September 1999 and 19 March 2001. Following the amendments made in 1999, the amended application was accepted for registration pursuant to s 190A of the NT Act on 17 January 2000.
At the time the application was lodged with the Court, in accordance with s 84 of the NT Act as previously in force, it listed the parties to the application in addition to the applicants. It is convenient at this point to note those parties and the extent to which they have participated subsequently in the hearing and determination of the claim.
The Northern Territory has at all material times been a party to the proceedings and has taken part in the hearings and has made final submissions in relation to the interests of the Northern Territory and of the Conservation Land Corporation (the Corporation).
The Corporation is a body corporate established by s 27 of the Parks and Wildlife Commission Act (NT) (the Commission Act). Its function is to acquire, hold and dispose of real property (including any estate or interest in real property) in accordance with the Commission Act. It is not an authority or instrumentality of the Crown, and is not subject to the direction of the Minister or of the Crown: s 29 of the Commission Act, and see R v Kearney; Ex parte Japananglea (1984) 158 CLR 395 at 404. It is however a ‘statutory authority’ of the Crown as defined in s 253 of the NT Act. By virtue of Crown Lease Perpetual 01117 (CLP 1117) commencing on 30 August 1993, that is at the time CLP 1117 was granted, the Corporation became lessee over the whole of the claim area, apart from the township of Hatches Creek. It did not participate during the course of the hearing, although it made an opening statement in writing in which it made claims about the extent to which there were native title rights and interests existing over the claim area at 30 August 1993, and the extent to which any such existing native title rights and interests were extinguished by CLP 1117. The Corporation also claimed that if CLP 1117 required validation by the NT Act, its grant is a valid Category D past act under s 232 of the NT Act, which by operation of the Validation (Native Title) Act (NT) brought about extinguishment of native title rights and interests ‘to the extent of any inconsistency’. It is not necessary to refer further to those contentions at this point. The Corporation ultimately adopted the final submissions of the Northern Territory on extinguishment and made no submissions on the existence of native title over the claim area.
Peter and Brenda Saint (the Saints) are the pastoral leaseholders of the property known as Kurundi Station. It is a pastoral lease abutting the claim area to its north. The claim area, excluding the township of Hatches Creek, was, prior to 1993, subject to a pastoral lease held by the Saints. The pastoral lease was number 841. It covered the area previously comprised in Northern Territory Portions 716 and 1088, an area slightly in excess of 4,977 square kilometres.
On 26 February 1993 an agreement was entered into between the Northern Territory, the Conservation Commission of the Northern Territory (a statutory entity also established under the Commission Act) (the Commission), and the Saints whereby the Saints agreed to surrender to the Northern Territory an area of approximately 135,000 hectares in the southern section of their pastoral lease. Before the application was first lodged, the Saints had executed a partial surrender of their then pastoral lease. Notice of Determination of the grant of the lease of Crown Land by reason of that partial surrender was issued on 3 September 1993. That part of their pastoral lease which was then surrendered is the claim area, other than the township of Hatches Creek. It is now leased to the Corporation under CLP 1117. Portion 1088 was then absorbed into the new Portions 4386 and 4387, and the remainder of Portion 716 was retained by the Saints. The Saints on 1 June 1993 were granted a pastoral lease numbered 1109 over the balance remaining, now the reduced Portion 716, which abuts the claim area on its northern side. The Saints did not take part in the hearing, and on 6 September 2000 filed a Notice of Discontinuance indicating that they had no ongoing interest in the outcome of the application. They have made no submission with respect to any matters concerning it.
John Love (Mr Love) was also identified as a party on behalf of the Warumungu Prospectors and Leaseholders Association. Shortly after the application was lodged with the Court on 23 July 1998, Mr Love wrote indicating that he did not wish to take any part in the proceedings but made the brief submission :
‘(a)That exploration and mining be allowed within the entire area.
(b)That unfettered fossicking (as defined by the current NT Mining Act) be allowed within the entire area.’
The status of the Warumungu Prospectors and Leaseholders Association has at no time been explained. Neither Mr Love nor any other person on behalf of that Association has sought to take any part in the hearing. There were two additional parties identified in the application, namely Mr C P Eaton, and Mr and Mrs C Hall, each of whom at the time of the application had exploration licences in respect of part of the land comprising the claim area. Those persons did not take part in the hearing at all. Their exploration licences have since expired.
Accordingly, apart from the applicants, the parties that participated in the hearing were the Northern Territory, and to the more limited extent referred to above, the Corporation.
(1) The Hearing
The hearing commenced on 18 September 2001 at Alepeyewenh (more commonly known as Black Tank), a site located on the land held by the Anurrete Aboriginal Land Trust (the Anurrete ALT) south east of Hatches Creek. It was a condition of the hearing taking place at that site that the Anurrete ALT give permission to members of the public to attend. An announcement was made on CAAMA Radio and in the Advocate newspaper that the Court would be sitting at that location and that the hearing was open to the public. Members of the public did attend the hearing, except where evidence was taken in private where I made directions in accordance with ss 17(4) and 50 of the Federal Court of Australia Act 1976 (Cth) (see the discussion in relation to such orders in Western Australia v Ward (1997) 76 FCR 492 per Hill and Sundberg JJ at 499 – 502).
Evidence was taken at a number of sites in the claim area. The main sites visited were Athethew (Old Police Station Waterhole) which is located towards the north-east corner of the claim area, Irreyel situated near the northern boundary of the claim area, Yethel in the south-east corner of the claim area, and Irlkwamp-Irlkwamp in the north-west corner of the claim area. Gender restricted evidence was heard at Alarlatwerew in the north-east corner of the claim area and at Kwepaney, Arawekert, Antwerr-Antwerr, Yelk and Athethew. The Court also viewed a number of ceremonies performed by the applicants. After that evidence, the hearing was adjourned to enable the experts’ reports to be reviewed and revised in the light of it. The revised experts’ reports were then finalised and received into evidence. Two of the applicant’s expert witnesses and one of the Northern Territory’s witnesses were examined from 19 - 20 March 2001 at a hearing in Alice Springs.
A timetable was set for the exchange of written submissions. Written submissions were duly exchanged. Supplementary written submissions were exchanged following the decisions of the High Court in Western Australia v Ward (2002) 191 ALR 1; [2002] HCA 28 (Ward), and Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Yorta Yorta). At the same time as Ward was delivered, the High Court also gave judgment in Wilson v Anderson (2002) 76 ALJR 1306; [2002] HCA 29 (Wilson).
Apart from the on-site evidence, the bulk of the evidence comprises expert reports, public records and witness statements tendered without formal proof. The applicants’ expert reports included an extensive anthropological report prepared by Dr Craig Elliott (Dr Elliott), an historical report prepared by Dr Petronella Vaarzon-Morel (Dr Vaarzon-Morel), a genealogical report, a linguistic report prepared by Dr Harold Koch (Dr Koch), and an archaeological report prepared by Dr M A Smith (Dr Smith). Only Dr Elliott and Dr Koch were cross-examined. The anthropological report was by far the most extensive document. The Northern Territory tendered a linguistic report prepared by Professor Francesca Merlan (Prof Merlan) and an archaeological report prepared by Dr Scott Mitchell (Dr Mitchell). Neither was cross-examined. The only witness called by the Northern Territory who was cross-examined was John Bertram (Mr Bertram), who gave evidence about the circumstances in which public works were undertaken by the Department of Transport and Works of the Northern Territory in the claim area ‘as part of the establishment of the proposed park’, and the nature of those public works.
The Court made orders restricting the use of a site map, the genealogies, section seven of the primary anthropological report of Dr Elliott, and Appendix 1 to the supplementary statement to the archaeological report prepared by Dr Smith. That material was to be retained in the possession and control of the solicitors for the Northern Territory and counsel or professional consultants engaged in relation to the proceedings. Restrictions were also placed on the number of photocopies to be made of that material. There was no real dispute as to the appropriateness of those orders.
I also made orders restricting the publication of the transcript of gender restricted evidence. The ‘men only’ evidence was to be transcribed by a man and access to the transcript was to be by men only. The transcript was duly marked and kept separate from the general transcript. Orders were made in relation to the transcript of the ‘women only’ evidence to similar general effect, but it was accepted that that transcript could be available also to three nominated men representing the Northern Territory and could be transcribed by a nominated male transcriber. An agreed statement was later prepared and tendered as an exhibit which outlined the general nature of the evidence adduced during the restricted sessions.
The conduct of the hearing was greatly facilitated by the parties and their legal representatives. It was apparent that the Northern Territory was prepared to consent to the tendering of voluminous documentary and expert evidence, so that only the real issues were the subject of focus in evidence in chief and cross-examination. The approach of the parties made the hearing expeditious and efficient and assisted in clearly identifying the real issues for determination.
(2) The Claim Area
In the course of proceedings the claim area was described from time to time as the Davenport Murchison Ranges Land Claim area. Both the Davenport Ranges and the Murchison Ranges are separate ranges adjacent to the claim area.
The claim area comprises two separate areas of land lying to the east of the Stuart Highway and south-east of Tennant Creek. The principal claim area consists of the land in Northern Territory Portions 4386 and 4387, now the subject of CLP 1117. Portion 4386 comprises 1,120 square kilometres. The evidence indicates that that area is proposed to become a national park. Portion 4387 is a much smaller area comprising five hectares 7,800 square metres. It is on the edge of Portion 4386 towards its north-western extremity. It is proposed to be an area set aside for tourism and a camping ground. I shall call that part of the claim area comprising Portions 4386 and 4387 ‘the proposed national park’ or ‘the principal claim area’.
The proposed national park is to be called the Davenport Ranges National Park. The Territory Parks and Wildlife Conservation Act (NT) (the Conservation Act) provides for the declaration of a national park or reserve in certain circumstances. It is a precondition of any such notice that the Commission prepare a report in relation to the proposed park or reserve in accordance with s 14 of the Conservation Act, and after the declaration of a park or reserve the Commission is obliged under s 18 of the Conservation Act to prepare a plan of management of that park or reserve.
There is in evidence a document entitled ‘Proposed Davenport Range National Park Management Plan February 1998’ (the Draft Management Plan). It was prepared under the supervision of the Assistant Director of Strategic Planning and Development of the Commission. It is not a report which was prepared for the purpose of satisfying either s 14 or s 18 of the Conservation Act. There has been no declaration of the proposed national park area (excluding the township of Hatches Creek) as a national park or reserve. Its status at present is simply that of land leased to the Corporation under CLP 1117.
The claim area is in the south-eastern extremity of the Davenport Ranges area. The Davenport Ranges and, slightly to the north, the Murchison Ranges extend roughly in a south-easterly/north-westerly direction for approximately two hundred kilometres from a point about eighty kilometres south of Tennant Creek. At the north-western end of those ranges, they are separated by a flood plain. As those ranges run in a south-easterly direction, they merge together. The Davenport Ranges and the Murchison Ranges complex runs roughly from the Gosse River in the north-west to the Sandover River in the south-east. They are the major elevated feature of the region, with numerous outcrops, still gorges and rocky valleys. The highest point in the ranges is Mt Cairns (near the north-west area of the claim area) at about six hundred metres above sea level.
According to the applicants, the general area of the Davenport Ranges and the Murchison Ranges is known by the name Ithwelepenty. A number of rivers and streams emanate from the Davenport Ranges in the vicinity of the claim area, including the Elkedra River, Whistle Duck Creek, the Gastrolobium Creek, the Yantenyile Creek, Poison Creek, Canteen Creek, the Pool River, Amelia Creek, Blackfellow Creek, Tinjarli Creek, Lennee Creek and Fusselda Creek. The Davenport Ranges contain mostly reliable sources of water, including large streams with both intermittent and perennial water holes. When water reaches the end of those creeks, it floods out into the surrounding desert areas. The flood plains apparently provide high value areas for hunting and foraging.
The area is also significant from a conservationist viewpoint. The Draft Management Plan explains that the claim area lies within the Tanami Bioregion, which is the largest bioregion in the Northern Territory, spanning almost the entire central area from east to west. It indicates that the proposed national park will be the only major protected area within this bioregion. It will also be the only major park within the Tennant Creek District.
The claim area is bounded by four stations and an Aboriginal land trust. As noted earlier, it is bounded on its northern side by Kurundi Station, occupied by the Saints. On its western side, it is bounded in part by Singleton Station, and in part in the southern section of its western side by the Murray Downs Station which also abuts its south-western extremities. Both those properties run to the Stuart Highway. On the eastern section of its southern border, it is bounded by Elkedra Station. The eastern section of the claim area, as the attached plan illustrates, comprises two fingers of land surrounding an area of land owned by the Anurrete ALT.
Within the area of land owned by the Anurrete ALT is the second parcel of the claim area. That is a small area comprising 27.12 hectares known as Hatches Creek Township. It is vacant Crown land set apart for the proposed town site of Hatches Creek. It was never established as a township. I shall call that parcel of the claim area ‘Hatches Creek’.
The Anurrete ALT occupies that land, other than Hatches Creek, following a determination by the Aboriginal Land Commissioner, Justice Olney, in the Wakaya/ Alyawarre Land Claim (Report No 34, 8 May 1990). That land claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act) originally included the land which is designated Hatches Creek Township and called in this judgment Hatches Creek. In the course of that hearing, however, it was acknowledged that Hatches Creek could not be claimed under the Land Rights Act. That is because a determination under the Land Rights Act could only be made in respect of unalienated Crown land, and the definition of unalienated Crown land in s 3(1) of the Land Rights Act specifically excluded land in a ‘town’. That section also defined ‘town’ to include any area that is to be treated as a town.
The claim area is depicted in the plan attached to these reasons for judgment.
(3) Nearby Land Claims
There have been a series of claims under the Land Rights Act in respect of unalienated Crown lands in areas near the claim area which have resulted in determinations for land grants under the Land Rights Act.
Section 86 of the NT Act provides :
‘86 Subject to subsection 82(1), the Federal Court may:
(a)receive into evidence the transcript of evidence in any other proceedings before :
(i)the Court; or
(ii)another court; or
(iii)the NNTT; or
(iv)a recognised State/Territory body; or
(v)any other person or body;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and
(c)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).’
Both the applicants and the Northern Territory accepted that, in accordance with s 86, I should receive into evidence on this application the reports and the transcripts of evidence in the proceedings in the following four land claims under the Land Rights Act :
Alyawarr and Kaititja Land Claim Report
(Report No 30 November 1978) of the Aboriginal Land Commissioner, Justice Toohey
Warumungu Land Claim
(Report No 31, 8 July 1998) of the Aboriginal Land Commissioner, Justice Maurice
McLaren Creek Land Claim
(Report No 32, 28 February 1990) of the Aboriginal Land Commissioner, Justice Olney, and
Wakaya/Alyawarre Land Claim
(Report No 34, 8 May 1990) of the Aboriginal Land Commissioner, Justice Olney

The applicants and the Northern Territory also each invited the Court, as it considered appropriate, to make use of the findings in each of those Reports. Their respective submissions also referred to parts of the transcript of evidence in those proceedings. Proceedings before the Aboriginal Land Commissioner do not fall within the descriptions in s 86(a)(i) - (iv). In view of the consensus between the applicants and the Northern Territory, I shall assume that the Aboriginal Land Commissioner is ‘any other person or body’ within the meaning of s 86(a)(v) of the NT Act. That is consistent with the approach taken by Olney J in The Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory (2000) 104 FCR 380; [2000] FCA 923 (St Vigeon).
The Alyawarr and Kaititja Land Claim Report related to an area of land to the immediate south of Murray Downs Station. It involved, inter alia, the Antarrengeny groups. The Warumungu Land Claim Report related to various extensive areas of land north and north-west of the claim area and north of the northern boundaries of Kurundi Station and Epenarra Station. Epenarra Station is on an area of land north of Kurundi Station towards its western side. That land granted by reason of the Warumungu Land Claim Report is mainly to the east of the Stuart Highway, to the north of the Tennant Creek and around Tennant Creek itself. It involved, inter alia, the Warwepenty, Arrawatyen and Kelantyerrang groups. The McLaren Creek Land Claim related to areas of land north-west of the claim area, extending both sides of the Stuart Highway. That land is immediately to the west of the western boundary of Kurundi Station and immediately to the north of the northern boundary of Singleton Station. It involved, inter alia, the Warwepenty and Kelantyerrang groups and the Wakurlpu group. The Wakaya/Alyawarra Land Claim involved an extensive area of land to the east and north-east of the claim area, including that area of land now held by the Anurrete ALT (as part of that grant), and extending immediately to the east of the eastern boundaries of Kurundi Station and Epenarra Station. Its southern boundary abuts part of the northern boundary of Elkedra Station. It involved, inter alia, the Arrawatyen, Akweranty/Anwerret and Tyaw groups and the Arlangkw groups. As noted earlier, initially that part of the present claim area known as Hatches Creek was included in that land claim.
In a general sense, the claim area now is surrounded by land held under pastoral leases under which the several station properties mentioned are conducted, except for that section held by the Anurrete ALT. Those stations are in turn partly encircled by land grants made under the Land Rights Act. There are, however, significant sections of land the subject of those land claims which were not granted. In the Wakaya/Alyawarre Land Claim Report, Olney J did not recommend that a land grant in respect of a large parcel of land to the east of Kurundi Station and Epenarra Station should be made because it had not been demonstrated in respect of that relatively barren land, that there then existed a local descent group with the characteristics required by the Land Rights Act to fulfil the criteria of the statutory definition of ‘traditional Aboriginal owners’ under that Act. The particular local descent groups are not among those relevant to this application. Similarly, in the Warumungu Land Claim Report, Maurice J did not recommend that a grant be made in respect of a portion of the claimed area immediately to the north of Epenarra Station.
It is necessary to have regard to the findings in those reports, and to the evidence in the proceedings to which they relate, with a little caution. That is because there is no precise correspondence between the matters required to be proved in a claim for native title under the NT Act and a claim for land rights under the Land Rights Act. The definition of ‘traditional Aboriginal owners’ in s 3(1) of the Land Rights Act includes the requirement that they be a local descent group of Aboriginals who have common spiritual affiliations, being affiliations that place that group under a primary (my emphasis) spiritual responsibility for the particular land. It is a term which does not include all those Aboriginals who may have a traditional right to use or occupy that land: cf s 71(1) of the Land Rights Act, and the discussion by Northrop, Hill and O’Loughlin JJ in Northern Land Council v Olney (1992) 34 FCR 470 at 478 - 485.
Nevertheless, it is significant that in those four claims under the Land Rights Act six of the seven land holding groups involved in the present application have previously been found to be the ‘traditional Aboriginal owners’ of land in the vicinity of the claim area, including that area of land now held by the Anurrete ALT which was the subject of a recommendation by Olney J in the Wakaya/Alyawarre Land Claim Report. The Hatches Creek part of the claim area is a small area of land surrounded by the land granted to the Anurrete ALT. There is every reason to think that, but for its ineligibility to be the subject of a recommendation under the Land Rights Act because it was land set aside for a township, that land would have been included in the recommendation made in that Report. In that Report, in respect of that general section of the land claimed which surrounds Hatches Creek, Olney J described the case in support of the claim as ‘overwhelming’ (par 6.20.1). The Northern Territory correctly points out that each of those determinations under the Land Rights Act involved native title rights and interests being held at the level of each of the landholding groups, rather than a more expansive community comprising several landholding groups.
The only claimant landholding group in this matter which was not the subject of a favourable recommendation in those Reports is the Lyentyawel-Ileparranem landholding group. It does not appear to have been a claimant landholding group in any of those four claims under the Land Rights Act.
native title
The main objects of the NT Act include providing for the recognition and protection of native title: s 3(a). Section 10 of the NT Act provides that native title is recognised, and protected, in accordance with the NT Act, and s 11(1) provides that native title is not able to be extinguished contrary to the Act.
Section 223(1) defines the term ‘native title’ as follows :
‘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.’
Section 225 provides that:
‘A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters, and if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.’
I do not consider it necessary to address at length the legal principles applicable to the determination of the applicants’ claim to native title over the claim area. With one significant exception, there is no real issue between the applicants and the Northern Territory about the applicable principles. The extent of their dispute is about the nature and effect of the evidence in respect of which the findings should be made. The determination of land rights in the four land rights claims referred to above, and the geographical proximity of the claim area to the land in respect of which those grants of land rights have been made, indicate that the claim area is likely to be, or to have been, the subject of native title to a significant degree. As noted, both the applicants and the Northern Territory agree that, by reason of s 86 of the NT Act, I may have such regard to the findings of the Aboriginal Land Rights Commissioners in those four matters, and to the transcripts of evidence in those four matters, as I consider appropriate.
In the light of the evidence, and of those determinations, the Northern Territory, whilst not conceding that some native title rights and interests continue to exist over the claim area, put its primary contentions on this aspect of the case as follows :
(a)The evidence establishes that any remaining native title rights and interests are held at the level of each of the seven landholding groups.
(b)The persons who hold the common or group rights comprising native title (the common law holders) are those Aboriginal people who are descended from the original members of the Antarrengeny, Arrawatyen, Akweranty/Anwerret, Kelantyerrang, Lyentyawel-Ileparranem, Tyaw and Warwepenty landholding groups who are recognised by the respective apmerek-artwey and kwertengerl of those landholding groups under the traditional laws acknowledged and the traditional customs observed by them as having communal or group rights and interests in relation to the estate of the landholding group.
(c)The native title rights and interests do not amount to rights and interests of an exclusive kind.
(d)The nature and extent of other interests in relation to the claim area are those 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 claim area according to law.
The significant exception to the general accord between the parties as to the relevant principles to determine the existence of native title appears particularly from the Northern Territory’s contention (b) above. The applicants contend that the relevant native title community is that described in [1] and [2] of these reasons. It is that group which is said to possess customary interests in the claim area under traditional laws and under traditional customs observed by them. The Northern Territory contends that the native title rights and interests are held at the level of each of the seven separate landholding groups, rather than at the level of a more expansive community comprising the seven landholding groups or the four language or tribal groups in combination. That is, it contends that the relevant identifiable community is at the estate group level. It is convenient to address that issue when considering the evidence generally and when making findings.
The recognition by the common law of native title was declared in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo). At the settlement of Australia, the Crown acquired radical title to the land, rather than acquiring absolute beneficial ownership of the land. That radical title was declared to be subject to the native title of the indigenous population who then occupied the land. In Mabo, Brennan J said at 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.’
Recognition of native title by the common law does not mean that it is either an institution of the common law, or a form of common law tenure: Fejo v Northern Territory (1998) 195 CLR 96 (Fejo) per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 128. It has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title.
The fact that pars (a) and (b) of s 223(1) of the NT Act are based upon what Brennan J in Mabo said at 70 should not cause the Court to lose sight of the fact that this application is made under the NT Act, and it is for rights which are to be determined under the NT Act. It is the provisions of the NT Act which the Court should address in determining the application: Ward, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at 16, [16]. Their Honours then said at 16 – 17, [17] – [18]:
‘However, as indicated, the immediately relevant elements in the definition in s 223(1) of “native title” and “native title rights and interests” have remained constant. Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist “in relation to land or waters”. Thirdly, the rights and interests must have three characteristics:
(a)they are rights and interests which are “possessed under the traditional laws acknowledged, and the traditional customs observed”, by the relevant peoples;
(b)by those traditional laws and customs, the peoples “have a connection with” the land or waters in question; and
(c)the rights and interests must be “recognised by the common law of Australia”.
The question in a given case whether (a) is satisfied presents a question of fact. It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by para (b) of s 223(1) is a connection with the land or waters “by those laws and customs”. Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs.’
The NT Act was said in the majority judgment in Ward at 11 – 12, [2] to be ‘at the core’ of the claim. This point was reiterated at 19, [25]. Kirby J generally agreed with the majority judgment: see at 157, [564] – [565]. See also the remarks of Kirby J in Commonwealth of Australia v Yarmirr (2001) 75 ALJR 1582; [2001] HCA 56 at 1628-1629, [241] – [243], and of Gaudron, Gummow and Hayne JJ in Wilson at 1315, [46] and of Kirby J in Wilson at 1332, [145].
There has been no case law which comprehensively explains what is involved in the notion that the claimed native title rights and interests must be ‘recognised by the common law of Australia’: s 223(1)(c). See the majority judgment in Ward at 17, [20]. In this matter the parties have proceeded on the basis that it is necessary for the Court to be satisfied firstly that the claimed native title rights and interests existed in the claim area at the date of sovereignty, and secondly that the claimed native title rights and interests have not been extinguished either wholly or partly, in the manner provided for by the NT Act. Section 4(6) of the NT Act (introduced by the 1998 Act) provides:
‘This Act also confirms that many acts done before the High Court’s judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23D), the extinguishment is complete; if the acts are previous non-exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.’
The High Court decision referred to is Wik Peoples v Queensland (1996) 187 CLR 1 (Wik). As noted, the NT Act provides by s 11(1) that native title is not able to be extinguished contrary to the terms of the NT Act, and the NT Act contains extensive provisions dealing with the circumstances in which native title, which might otherwise exist, may be extinguished.
The parties acknowledged that, upon sovereignty, if there were then no existing native title in respect of the claim area, then the radical title of the then Crown would involve the full beneficial interest in the claim area. In Mabo Brennan J stated at 48:
‘If the land were desert and uninhabited, surely a terra nullius, the Crown would take an absolute beneficial title …’
Similarly, Deane and Gaudron JJ said at 86 that:
‘If there were lands within the Colony in relation to which no pre-existing native [title] existed, the radical title of the Crown carried with it a full and unfettered proprietary estate … Thereafter, any claim by the Aboriginal inhabitants to such lands by reason of possession or occupation after the establishment of the Colony must be justified by ordinary common law principles or presumptions.’
In Yarmirr v Northern Territory of Australia (1998) 156 ALR 370 (Croker Island), Olney J found that it had been shown that the land claim was connected with an indigenous group at the time of sovereignty. It was not necessary that the applicants show that it was their group that was connected with the land at the time of sovereignty. It was enough that succession to another or other Aboriginal groups after sovereignty could still satisfy the requirements of s 223(1) of the NT Act. In Ward v Western Australia (1998) 159 ALR 483 (Ward at first instance), Lee J made similar findings (not contested on appeal). His Honour said at 501:
‘It is not necessary that the indigenous community in occupation of the land at sovereignty be a community of a particular degree of organisation, only that it be a community or society sufficiently organised to be able to create and sustain rights: see Mabo (No 2) per Toohey J at CLR 187. It is not a requirement of native title that it be shown that the indigenous community had rules for defining and transmitting the rights of community members in respect of land. Native title follows from the occupation and use of land by an organised society which has a particular relationship with the land. It does not depend on proof of the existence of specific rules which govern the relationships of community members with that land: see Mabo (No 2) per Brennan J at CLR 62-63; per Toohey J at CLR 188-191. The existence of laws or customs which determined how the land was controlled or utilised may be assumed from proof that a functioning society occupied the land: see Mabo (No 2) per Toohey J at CLR 187.’
Of course, his Honour’s observations must be considered in the light of the majority judgment in Ward emphasising that the determination of native title is to be made in accordance with the provisions of the NT Act, and its nature and extent is to be determined also in accordance with those provisions. It will be necessary later in these reasons to consider whether the High Court in Ward imposed a somewhat more stringent test.
The task of ascertaining the time of sovereignty in this case is straightforward. The claim area is cut in two by the meridian 135 degrees east of Greenwich. The same circumstance confronted Olney J in Croker Island. See at 389. That is of technical moment only to consideration of the present claims. It means that the dates of sovereignty differ in respect of different parts of the claim area, namely that to the east of meridian 135E and that to its west. In Croker Island at 389, Olney J said:
‘The Letters Patent issued to Captain Arthur Phillip and read by him at Sydney Cove on 7 February 1788 defined the western limit of the territory annexed as the 135^th degree of east longitude. The commission to Governor Darling proclaimed on his assumption of the administration of New South Wales on 20 December 1825 substituted the meridian of 129 degrees east longitude for the meridian of 135 degrees east longitude as the western boundary of New South Wales.’

Consequently, the applicants submit, and I accept, that the relevant date at which sovereignty in respect of the claim area was established is 1788 for the area to the east of meridian 135 degrees east, and 1825 for the area to the west of meridian 135 degrees east. The respondents did not gainsay that proposition. As in Croker Island, in practical terms I do not think that the different dates upon which sovereignty was established over the claim area are of significance in determining the native title claim. There was no European entry into the claim area or its environs until after 1825. There is nothing to indicate that the nature of indigenous use of the claim area, or areas around the claim area, altered in any way of significance to the present application between 1788 and 1825. However, it will be necessary to address the evidence generally on that topic when making findings.
As the majority judgment in Ward states in the passages referred to above, the Court must make separate inquiries as to the rights and interests possessed under traditional laws and customs, and then as to the connection with land or water in the claim area by those laws and customs. The NT Act is not directed to the recognition and maintenance of culture and knowledge of native title holders, except to the extent that it is possessed under the traditional laws acknowledged and the traditional customs observed by the claimant peoples, and then only if those laws and customs have a connection with the land or waters constituting the claim area.
(1) The Applicants’ Claims
In the first place it is convenient to note more fully the applicants’ claim as to who constitutes the native title claim group, that is, the persons who are claimed to hold the communal or group rights comprising the native title. The applicants’ final submission describes them in the following terms:
‘The persons who hold the communal or group rights comprising the native title as common law holders are the Aboriginal persons who are:
(a)members of one or more of the seven landholding groups (Arrawtyen, Antarrengeny, Akweranty/Anwerret, Lyentyawel Ileparanem, Tyaw, Warwepenty and Kelantyerrang) by virtue of descent through his or her father’s father, father’s mother, mother’s father and mother’s mother; or
(b)recognised, by the persons referred to in sub-paragraph (a) hereof, as members of one or more of the seven landholding groups by virtue of non-descent based connections, including adoption or birthplace affiliation;
(c)members of other landholding groups that are neighbouring or closely related to one or more of the seven landholding groups and are recognised, by the persons referred to in sub-paragraph (a) hereof, as having native title rights and interests in the determination area; or
(d)spouses of persons referred to in sub-paragraphs (a), (b) or (c) and are recognised, by the persons referred to in sub-paragraph (a) hereof, as having native title rights and interests in the determination area.’
The proposed determination then describes the rights and interests in the claim area of those persons under their traditional laws acknowledged and customs observed. They are expressed in the proposed determination as follows:
‘The rights and interests of the common law holders in the land and waters of their respective landholding groups, possessed under their traditional laws and customs, are:
(a)ownership of the land and waters;
(b)the right to speak for and make decisions about the land and waters;
(c)the right to give or refuse permission to access or use the land and waters by non-landholding group members;
(d)the right to hunt, fish, gather and use the natural resources of the land and waters and to give or refuse permission to do so by non-landholding group members;
(e)the right to maintain and protect places and areas of importance on or in the land and waters and to care for and manage the ‘country’ and its spiritual attributes;
(f)the right to acquire, safeguard and transmit cultural and religious knowledge, practices and objects associated with the land and waters;
(g)the right to bestow on non-landholding group members rights or entitlements in relation to the land or waters; and
(h)the right to resolve disputes concerning the use of land and waters or the content of the customary laws which define rights in relation to them.’
As explained in [68] below, this description does not represent the rights and interests in respect of which the applicants seek a determination of native title. It is a step along the way.
The rights to possess, occupy, use and enjoy the land and waters comprising the claim area in respect of which a determination of native title is sought, are (subject to extinguishment issues) expressed as:
‘Subject to paragraphs 5, 6 and 7, the nature and extent of the native title rights and interests recognised by the common law in relation to the determination area are rights to possess, occupy, use and enjoy the land and waters. The incidents of that entitlement are the rights set out below, including the right to conduct activities incidental to them:
(a)the right to hunt and fish, to gather and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax and to have access to and use of water on or in the land;
(b)the right to live on the land, to camp, erect shelters and other structures and to travel over and visit any part of the land and waters;
(c)the right to engage in cultural activities on the land, to conduct ceremonies and hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters and to participate in cultural practices relating to birth and death, including burial rites;
(d)the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements;
(e)the right to make decisions about access to the land and waters by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(f)the right to make decisions about the use and enjoyment of the land and waters and the subsistence and other traditional resources thereof, by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(g)the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters;
(h)the right to control the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters;
(i)the right to determine and regulate the membership of and recruitment to a landholding group;
(j)the right as against the whole world, including any other Aboriginal group or person, to assert and to be acknowledged as the Aboriginal owners of the land and waters in accordance with traditional laws and customs.’
The applicants acknowledge that no native title rights and interests in relation to minerals and petroleum as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT) respectively have been established. A similar acknowledgment was made in Ward: see at 113, [382] and 130, [461] in the majority judgment, where their Honours noted, when discussing extinguishment, that there was no evidence of any traditional Aboriginal law or custom with respect to minerals or other substances covered by that legislation. The applicants contend that ochre is not a mineral as defined in the Minerals (Acquisition) Act (NT), and maintain a right to access ochre from the claim area, as included in (a) above.
The Northern Territory contends that any determination of native title rights and interests in respect of the claim area should not be expressed in the terms of the proposed determination as set out in [66] above. The applicants do not say that the part of the proposed determination set out in [66] represents the native title rights and interests which are recognised by the common law: see s 223(1)(c) of the NT Act. The claimed rights are those set out in [67] above. For the purposes of identifying and addressing the issues about whether the claimed native title rights and interests exist (but for their extinguishment) and whether they have been extinguished, it is necessary therefore to focus on the expression of those claimed rights as set out in [67]. Whether any proposed determination of native title rights and interests should be made, including the sort of expression set out in [66], is deferred until it has been determined whether a determination about the claimed native title rights and interests should be made. It relates more to the form of the proposed determination.
Before turning to a more detailed consideration of the evidence, and making my findings, I should note that the claim area is relatively small in size and contains only a small proportion of the country of the seven landholding groups. I do not think the applicants’ claims in this matter can be viewed in isolation. The recognition of native title under the NT Act is constrained by limitations, including by way of extinguishment. Native title need not be asserted in respect of areas where there has been a previous determination of an entitlement to a grant of land under the Land Rights Act. Consequently, a claim area for a determination of native title under the NT Act may not reflect the full geographical range of what a particular native title claim group might claim or regard as its traditional area. It would be quite common that, in the case of applications for determination of native title, the application may relate to a portion of land which is within the limits of traditional country according to Aboriginal law and custom. Such, I think, is the circumstance in the present matter. Consequently, on the hearing I admitted evidence relevant to determination of the application even though in part it related to evidence of areas close to, but not included within, the claim area. French J adopted a similar procedure in Re Waanyi People’s Application (1995) 129 ALR 100, in particular at 133-134.
(2) The Positions of the Parties
It is the applicants’ case that, as a matter of customary law, their claimed native title rights are exclusive. However, they acknowledge that the NT Act as explained in Ward effectively means that the grant of a valid pastoral lease destroys the exclusive character of native title rights and interests existing prior to the grant to the extent of the rights granted under that lease.
The applicants contend that at the time of sovereignty the claim area was occupied by indigenous people who constituted an organised society. This proposition is said to be supported both by anthropological reports and by historical evidence. They claim that, at least at and from sovereignty (either 1788 or 1825), their ancestors and themselves have maintained contact with the claim area by living there and working in the Hatches Creek area, living and working on cattle stations, living on country granted to them under the Land Rights Act, and through the ongoing performance of ceremonies of which the travels and activities of Dreamtime ancestors are celebrated and which involve songs that relate to the travel paths of those ancestors.
They also contend that there are dense links between the seven landholding groups arising out of mythological connections, multilingualism, inter-marriage, shared residential and working history, joint ceremonial involvement and the facts of shared social history. Hence they contend that the seven landholding groups are in fact a composite communal landholding native title group. The major links between the landholding groups are that they are subject to the one Aboriginal traditional law and that they operate within a common social universe. This approach is said to accord with that adopted by Lee J in Ward at first instance. They contend that through the continual observations of their traditional laws and traditional customs they have continued to have a substantial connection with the land which is the claim area. The nature of that connection is reflected in the proposed determination referred to in [67] above.
The Northern Territory contested that the applicants comprise a single community of native title holders, and says that such native title rights and interests as may exist are held at the level of the individual landholding groups. It contends that evidence shows that, within the claim area, there are ‘handover points’ at which different language groups assume different responsibility for parts of the claim area so that persons entitled to exercise rights and interests over the claim area vary from one landholding group to another.
As it is necessary for the acknowledgment and observance of traditional laws and traditional customs to have continued substantially uninterrupted since sovereignty, the requirement is that the communal native title holders must exist ‘as a body united by its acknowledgment and observance of the laws and customs’: Yorta Yorta at [89]. The Northern Territory accepts that there has been physical connection of Aboriginal people with the claim area over a long time. It accepts that in this instance the Court may well be able to draw inferences of continued connections since sovereignty, irrespective of gaps in the historical timeline. Its submission points out that, while the expert evidence adduced on behalf of the applicants establishes that parts of the claim area have been occupied by unidentified Aboriginal people at least since the 1860s, it does not establish that the present claimant group are descended from the original inhabitants of the area at the time of sovereignty or at the time of first European contact. It nevertheless accepts that it is a reasonable inference for the Court to draw that the present claimant group (however properly identified) is or are descended from the original inhabitants of the area at the time of sovereignty and at the time of first European contact. Whilst the expert evidence relied upon by the applicants does not establish that the original landholding groups of the areas were an identifiable community and an organised society under traditional laws and traditional customs, it also accepts that it would be a reasonable inference for the Court to so conclude.
Hence, the first respondent disputes the existence of native title in the claimed native title claim group in the claim area. It was contended that the proposed Alyawarra, Kaytetye, Warumungu and Wakaya community was not a traditional entity possessing native title, but was instead a recently formed group not connected in accordance with traditional laws and traditional customs of previous indigenous inhabitants.
There are also issues as to the nature and extent of any native title rights and interests that may arise from a marriage to a member of the landholding group, or that may arise from birth on country.
There is also an issue as to the content of the applicants’ native title rights and interests, however the native title landholding group may be discerned. It is reflected in the contentions of the first respondent in its proposed alternative determination. Its proposed determination was that the native title rights and interests are as follows:
‘Subject to paragraphs 4, 5, 6 and 7:
(1)the nature and extent of the native title rights and interests in relation to the determination area are:
(a)The right to have access to and reside upon any of the land and waters;
(b)The right to use and enjoy the resources of the land and waters;
(c)The right to maintain and protect places of importance within the determination area;
(d)For the avoidance of doubt:
(i)the rights listed in subparagraphs (a) to (c) above include the right to make decisions about the matters referred to therein;
(ii)the right listed in subparagraph (b) includes the right to use and enjoy ochre found in the determination area.
(2)The native title rights and interests set out in paragraph 3(1) are exercisable in accordance with the traditional laws and customs of the common law holders.
(3)The native title rights and interests set out in paragraph 3(1) do not confer possession, occupation, use and enjoy [sic] of the determination on the common law holders to the exclusion of all others.’
The proposed determination does not define the extent of those competing uses.
The Northern Territory also asked the Court carefully to consider the quality of the evidence demonstrating connection to the claim area. It submitted that if a line is not drawn, the connection requirement will be reduced to the lowest common denominator.
(3) The Witnesses
Substantial evidence was given by nearly 30 Aboriginal persons. They variously gave evidence as to the respective genealogical structures of each of the seven landholding groups, as to the interactions between those groups, and as to the nature of the native title claim group and its community. Evidence was given largely at the principal hearing site on land of the Anurrete ALT at Black Tank, as well as at sites visited during the hearing, about Aboriginal laws and customs observed by them and by others in relation to the claim area and in relation to areas surrounding the claim area.
Overall I have no hesitation in accepting the evidence of those persons. I am satisfied that each gave evidence frankly and honestly. There was nothing in the demeanour of any of them to indicate prevarication or exaggeration. The demeanour of course varied. Some persons were forthright and communicative. Some were less so. Some were more effusive when giving evidence at particular locations at which evidence was given. Some were quietly spoken or more diffident. In general, more graphic and descriptive evidence was given at ‘on country’ sites. The variations in the witnesses reflect, in my view, different personalities and different degrees of knowledge and where each witness fitted into the communal group (I use that term loosely for the time being). All were straightforward and convincing. They all add up to a patchwork of coherent and credible evidence. The respondent did not submit that I should reject any of that evidence.
Inevitably, given the nature of the case, the evidence given rested in part upon the personal observations and experience of each witness and in many respects in part upon what the particular witness had been told by parents or by other persons of a prior generation. To an extent, those past anecdotal experiences were confirmed by activities which they had subsequently inherited and adopted.
Evidence was given by four experts on behalf of the applicants. Anthropological reports prepared by Dr Elliott were adduced in evidence and he gave some viva voce evidence. An historical report was presented by Dr Vaarzon-Morel. Her report was unchallenged and uncontradicted. She was not cross-examined. Much of the background to her report was confirmed in the documents presented by Dr Warden (Biographic Notes, Select List 1889-2000). I accept her evidence in its entirety and the accuracy of the information produced by Dr Warden.
Linguistic evidence was given by Dr Koch. He was asked to address the current and historical linguistic inter-relationships in the claim area and surrounding regions, the historical development and divergence of current languages from a proto-language or languages, the extent of linguistic inter-penetration between the four languages of the claim group and a summary of the changes (if any) in these characteristics as a result of historical and demographic adjustments since European contact. He interpreted his brief, as he said, as addressing the genealogical (i.e. family-like) relations between the languages, contact-induced change (borrowing, copying of words and features), and multi-lingualism and possible language shift of the people associated with the lands. Dr Koch’s first report was reviewed in a report tendered by the Northern Territory and provided by Prof Merlan, a qualified linguist and anthropologist. She was asked to provide an assessment of the utility of the findings of Dr Koch in relation to establishing the native title applicants as a group holding native title rights in the application area, and to comment upon the sources which he had used. Her introductory summary commences in the following terms:
‘Harold Koch is an expert in matters of historical and comparative linguistic analysis, with long-term relevant experience with languages concerned in this native title application. His conclusions with respect to those linguistic matters are unexceptionable.’

The applicants’ however acknowledge that its construction is a future act which was to give effect to, or was because of, the Agreement of 26 February 1993 for Partial Surrender by the Saints of their pastoral lease. They accept that s 24ID(1)(a) then validates that work, and the non-extinguishment principle applies, but as it is not the conferral of a right of exclusive possession, it does not totally extinguish native title: s 24ID(1)(b).
It is common ground that s 47B may apply to Hatches Creek. Section 47B(1)(c) requires that one or more of the native title claim groups occupied Hatches Creek at the time of the application. There is no direct evidence on that topic. The applicants ask me to infer such occupation from a course of conduct over time.
As noted earlier, the presence of Aboriginal persons on the claim area, and their occupation of it, would be influenced by seasonal factors such as the availability of resources, by ceremonial obligations, and by the presence of Non-Aboriginal persons. Hatches Creek has no physical features or significance which would suggest it was continually occupied, in the sense of having permanent residents at the time of the application. It is close to the road that connects the Imangker Aboriginal Community on the Murray Downs Station and the Aboriginal community near the homestead in Epenarra Station, as well as Alepeyewenh (Black Tank). There is a small resident community at Alepeyewenh, which I accept engages in hunting and gathering in the surrounding areas.
In Hayes at 144 [162], Olney J described occupation for the purposes of s 47B as being use of traditional country in a way that:
‘… is neither random nor co-incidental but in accordance with the way of life, habits, customs and usages of the group …’
In my view, the evidence leads to the conclusion by inference that members of the claim group occupied Hatches Creek in that sense at the time of the application. They resided nearby, and in the traditional way hunted and traversed the land around Alepeyewenh. I infer that land included Hatches Creek. I do not need to determine whether the passage of Aboriginal persons along roads or tracks near Hatches Creek of itself would amount to occupation of Hatches Creek. The absence of evidence that in such travels Hatches Creek had any significance to them, together with the fact that it was not itself on the travel route, leads me to the tentative view that such evidence of itself would have attracted the application of s 47B(1)(c).
For those reasons, I conclude that s 47B does apply to Hatches Creek, and the rights of the claim group which I have found to exist are, in relation to Hatches Creek, exclusive.
conclusions
For the reasons given, I propose to determine that native title exists in relation to the determination area which comprises the land and waters covered by Northern Territory Portions 4386 and 4387 and Hatches Creek. The determination area does not include areas subject to previous exclusive possession acts, namely the following public works as defined in s 253 of the NT Act, including the adjacent land and waters as described in s 251D of the NT Act, :
(1)the two wheel drive access road to the Old Police Station Waterhole (Athethew) (North Loop);
(2)the four wheel drive access road to the Irminga (Irrmeng) Waterhole and Whistle Duck Creek day use camping area;
(3)the land and waters adjacent to the two roads referred to in (1) and (2) hereof used for the construction, establishment or operation of the two roads.
Nor does it include the roads excluded from NT Portions 4386 and 4387 as delineated on plan number S93/20A dated 30 August 1993. The claim area is defined by reference to Portions 4386 and 4387, and those portions do not include certain roads which might otherwise be seen as within the broad geographical boundaries of the claim area.
I am satisfied that the persons who hold the communal or group rights comprising the native title as common law holders are the Aboriginal persons who include:
(a)members of one or more of the seven landholding groups (Arrawatyen, Antarrengeny, Akweranty/Anwerret, Lyentyawal-Ileparranem, Tyaw, Warwepenty and Kelantyerrang) by virtue of descent through his or her father’s father, father’s mother, mothers’ father and mother’s mother; or
(b)recognised by the persons referred to in sub-paragraph (a) hereof, as members of one or more of the seven landholding groups by virtue of non-descent based connections, including adoption or birthplace affiliation.
In my judgment, those persons also include the spouses of persons referred to in (a) and (b) who are recognised by the persons referred to in (a), according to the traditional laws and traditional customs of the communal group which I have found to exist. The spouses included in the communal group have the rights and interests determined by the traditional laws and customs of the group. I am unable to discern from the evidence an additional category of persons who come within the communal group as members of neighbouring or closely related landholding groups who are recognised as having native title rights and interests in the claim area. The evidence discloses that there may be persons who are regarded as within the communal group who do not clearly fall within (a) or (b). In my view, those few persons are more likely to have been so recognised because they fall within (b) rather than as a separate element of the communal group as the applicants put forward in their proposed determination.
I do not propose to include in the determination a statement as suggested by the applicants as set out in [66] above, put forward as a statement of the rights and interests ‘before they are translated into native title rights and interests recognised by the common law’. The findings made in the reasons for judgment relate to the traditional laws and customs of the claim group. In my view, to include such a statement in the determination, has several potential detriments. Firstly, it is not a course which is clearly contemplated by s 225 of the NT Act. Secondly, as the majority judgment in Ward indicates, the focus of the application and the determination should be by reference to the NT Act, in particular s 223(1). Thirdly, such a statement has the prospect of failing accurately or comprehensively to reflect what it purports to achieve (the evidence and submissions properly focused on the matters raised by the NT Act rather than upon wider issues). Fourthly, such a statement has the potential to be used to inform the nature of the determination of the native title rights and interests which I have found to exist when their nature and extent should be simply that which is the subject of the determination.
In the determination of the native title rights and interests recognised by the common law, I do not think it is necessary or appropriate to include an expression such as ‘rights to possess, occupy, use and enjoy’ the land and waters in the claim area. In my view, the reasons for decision themselves explain the integrated nature of the relationship of the claim group with the claim area. The determination should be confined to expressing those rights and interests in the claim area which the claim group is entitled to enjoy by reference to the activities that may be conducted as of right on or in relation to the claim area: see the majority judgment in Ward at 30, [52].
It is not necessary to refer in these conclusions to the rights and interests as the applicants claimed and which I have found to exist, where there is no concern by the Northern Territory as to whether or how that right or interest should be expressed, or where the Northern Territory suggested alterations to the expression of a claimed right or interest which is accepted by the applicants, or has been altered by the applicants to accommodate concerns of the Northern Territory. See the discussion in [169] – [208] above.
Consequently, it is not necessary to address the expression in [67] of the rights and interests claimed in pars (a), (b), (c), (g) and (i) thereof. Nor is it necessary to further address the principal pars numbered 5, 6, 7 and 8 or parts of pars 9 and 10 and Sch 1 of the proposed determination discussed at [187] – [208] above.
In my view, it is appropriate to include the expression of the right set out in par (d). I do not regard the use of the word ‘protect’ as inappropriate. It contemplates conduct in relation to places and areas of importance which may fall well short of controlling access to those places in a way which is inconsistent with previously granted rights, and the exercise of the right to be recognised is subject to the prevailing activities under the exercise of other rights: s 44H of the NT Act. It is a right which I consider exists independently of the Northern Territory Aboriginal Sacred Sites Act (NT).
I also propose to include in the determination the rights sought in pars (e) and (f). I have found, however, that each of those rights is inconsistent with the rights of the Commission following the grant to the Corporation of CLP 1117. The result is that, in respect of those rights, the non-extinguishment principle expressed in s 238 of the NT Act applies. The two rights continue to exist, but they have no effect in relation to the grant of CLP 1117 and its consequences, including in relation to the Commission. I propose to include a note in the declaration to that effect.
I also consider that the right claimed in (h) is one which has a connection with the claim area, so as to come within the definition in s 223(1) of the NT Act. The critical question dictated by s 223(1)(b) is whether the claim group, by the traditional laws and customs which give rise to the particular native title rights and interests, has a connection with the claim area. The expression of the claimed right is more refined, or more specifically directed to meeting the requirement of s 223(1)(b), than those considered by the High Court in Ward at 31 – 32, [58] – [60] or by O’Loughlin J in De Rose at [51]. The evidence discloses that certain of the spiritual beliefs or practices of the claim group are ‘site specific’, and the activities conducted pursuant to them relate to particular locations in the claim area. As expressed, the proposed right firstly relates only to the spiritual beliefs which concern particular locations in the claim area. And secondly, it seeks to ‘control’ the disclosure of those beliefs and the material objects and other ‘paraphernalia’ associated with them. It is not directed to controlling the use of some intellectual property, but to controlling its acquisition. I am confident there is a right to control the acquisition of such information in accordance with traditional laws and customs of the claim group. By the ‘site specific’ nature of those particular spiritual beliefs, in my view the claim group has a connection with the claim area. As expressed, I do not consider the right is ‘something approaching an incorporeal right akin to a new species of intellectual property’ (cf the majority in Ward at 31, [59]).
The right claimed in (j) is, in my judgment, for the same reasons a native title right possessed under the traditional laws and customs of the claim group by reason of which the claim group has a connection with the claim area. Olney J in Hayes at 148 made a similar determination.
Two of the Northern Territory’s proposed changes to par 9(a)(iv) of the proposed determination are not contentious. The other differences are not substantial. The Northern Territory’s proposal reflects the expression used by O’Loughlin J in De Rose. In my view, the use of that expression is helpful and I shall adopt it, except for the fourth of those matters which I shall limit as the applicants suggest.
As to par 10 of the proposed determination (see [199] – [203] above), I think the Northern Territory’s proposed par 10(b) is appropriate and I shall adopt it. The views of the majority in Ward in the Full Court at 399, [312] were not intended to diminish the operation of s 44H. They are nevertheless, views which are both well-founded and which one would expect to reflect rational behaviour. I do not, however, consider that the determination should contain the direction proposed by the applicants in par 10(d). The interaction between s 44H and the concepts discussed by their Honours is better left to be addressed as circumstances arise. For the reasons already given at [203], I will include the proposed par 10(e) in the determination. I do not see the need to further qualify the operation of par 10(f).
Accordingly, the determination which I propose to make is as follows:
1.Native title exists in relation to the determination areas which comprise the land and waters covered by the Northern Territory Portions 4386 and 4387 and the Town of Hatches Creek.
The determination area does not include the areas set out in the Schedule.
2.The persons who hold the communal or group rights comprising the native title as common law holders are the Aboriginal persons who are:
(a)members of one or more of the seven landholding groups (Arrawatyen, Antarrengeny, Akweranty/Anwerret, Lyentyawal Ileparranem, Tyaw, Warwepenty and Kelantyerrang) by virtue of descent through his or her father’s father, father’s mother, mothers’ father and mother’s mother; or
(b)recognised by the persons referred to in sub-paragraph (a) hereof, as members of one or more of the seven landholding groups by virtue of non-descent based connections, including adoption or birthplace affiliation;
(c)spouses of persons referred to in sub-paragraphs (a) or (b) and are recognised, by the persons referred to in sub-paragraph (a) hereof, as having native title rights and interests in the determination area.
3.Subject to paragraphs 4 and 5, the nature and extent of the native title rights and interests recognised by the common law in relation to the determination area are the rights set out below, including the right to conduct activities incidental to them.
(a)the right to hunt and fish together and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax and to have access to and use of water on or in the land;
(b)the right to live on the land, to camp, erect shelters and other structures, and to travel over and visit any part of the land and waters;
(c)the right to engage in cultural activities on the land, to conduct ceremonies and hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters and to participate in cultural practices relating to birth and death, including burial rights;
(d)the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements;
(e)the right to make decisions about access to the land and waters by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(f)the right to make decisions about the use and enjoyment of the land and waters and the subsistence and other traditional resources thereof, by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(g)the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters;
(h)the right to control the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters;
(i)the right to determine and regulate the membership of and recruitment to a landholding group;
4.In relation to that part of the determination area identified as Northern Territory Portions 4386 and 4387 the native title rights and interests are not exclusive of the rights and interests of others.
5.In relation to that part of the determination area identified as the Town of Hatches Creek the native title rights and interests are exclusive of the rights and interests of others, subject to subclause 7(b) hereof.
6.The native title rights and interests of members of the respective landholding groups referred to in paragraph 2 above, are held subject to and are exercisable in accordance with the traditional laws and customs of the common law holders.
7.The nature and extent of other interests in relation to the determination area (the other rights and interests) are as follows:
(a)In relation to Northern Territory Portions 4386 and 4387:
(i)the interest of the Conservation Land Corporation as the holder of Crown Lease Perpetual No 1117;
(ii)the interest of the Parks and Wildlife Commission of the Northern Territory in the care, control and management of the land comprised in Crown Lease Perpetual No 1117 pursuant to its functions and powers under the Parks and Wildlife Commission Act (NT);
(iii)the interest of the Parks and Wildlife Commission in any buildings, structures or other works constructed or established on the land;
(iv)interests of the Crown pursuant to statute or otherwise in exercise of its executive power or held as the result of the assertion of sovereignty;
(v)rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power;
(vi)rights of access to the land by agents, employees or instrumentalities of the Crown (in right of the Territory or the Commonwealth) as required in the performance of their statutory or common law duties;
(vii)the interests of members of the public with rights of access to the land arising under statute.
(b)In relation to the Town of Hatches Creek, the interest of any person with a right of access to the land conferred by or arising under a law of the Northern Territory or the Commonwealth.
8.The relationship between the native title rights and interests described in paragraph 3 and the other rights and interests referred to in paragraph 7 is that:
(a)the other rights and interests co-exist with the native title rights and interests;
(b)(i)        to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist, but have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and
(ii)otherwise, the existence of the native title rights and interests do not prevent the doing of the activity required or permitted to be done by or under the other rights and interests; and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevails over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.’
(c)the doing of any activity giving effect to the other rights and interests prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them;
(d)in relation to the rights and interests conferred by or arising under Crown Lease Perpetual No 1117 (the lease):
(i)the Crown Lands Act (NT) and the lease are the source of the rights and interests of the Conservation Land Corporation, the function of which is set out in s 39 of the Parks and Wildlife Commission Act (NT);
(ii)section 39(6) of the Parks and Wildlife Commission Act (NT) is the source of the rights and interests of the Parks and Wildlife Commission, the functions of which are set out in s 19 of the Act and which are limited to promoting the conservation and protection of the natural environment and the protection, conservation and sustainable use of wildlife;
(iii)the land and waters comprised in the lease have not been declared a park or reserve under s 121(1) of the Territory Parks and Wildlife Conservation Act (NT);
(iv)Aboriginal people who have traditionally used the land and waters have the right to continue to do so in accordance with Aboriginal tradition for hunting, food gathering (otherwise than for the purpose of sale) and for ceremonial and religious purposes under s 122 of the Territory Parks and Wildlife Conservation Act (NT);
(v)Aboriginal people have a right of access to sacred sites in accordance with Aboriginal tradition under s 46 of the Northern Territory Aboriginal Sacred Sites Act (NT).
(e)In relation to the Northern Territory Portions 4386 and 4387, the native title rights and interests that are not inconsistent with and may be exercised notwithstanding the other rights and interests referred to in paragraph 7(a) are:
(i)the right to use the land and waters for hunting, fishing and the gathering of traditional resources for food and other domestic purposes, according to traditional laws and customs;
(ii)the right to use the land and waters for ceremonial and religious purposes, including conducting ceremonies, participating in other cultural practices and the transmission of cultural knowledge;
(iii)the right to live on the land for the purpose of conducting such activities;
(iv)the right to make decisions about access to and the use and enjoyment of the land and waters and the traditional resources thereof, for the purpose of conducting such activities;
(v)the right to access places and areas of importance and to maintain and protect them from damage, disturbance or interference;
(vi)the right to assert and to be acknowledged as the Aboriginal owners of the land and waters in accordance with traditional laws and customs.
Note: In respect of the rights referred to in paragraph 3(e) and paragraph 3(f) hereof, the Court has determined that those rights are inconsistent with the rights granted by, or by reason of, Crown Lease Perpetual No 1117 to the Conservation Land Corporation over Northern Territory Portions 4386 and 4387. Those rights continue to exist but have no effect in relation to the grant of the Crown Lease Perpetual 1117 because the non-extinguishment principle applies to them: section 238, Native Title Act 1993 (Cth).
AND THE COURT FURTHER ORDERS THAT
9.        The native title is not to be held in trust.
10.      An Aboriginal Corporation whose name will be provided within 3 months is to:
(a)be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth); and
(b)perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth).

SCHEDULE
Exclusions from the Determination Area
1.Areas subject to previous exclusive possession acts, having been excluded from the native title determination application, are excluded from the determination area in accordance with section 61A of the Native Title Act 1993 (Cth).
Public works
The areas on which the following public work as defined in s 253 of Native Title Act 1993 (Cth) are situated, including the land and waters defined in s 251D of the Act, are excluded from the determination area:
(i)the two wheel drive access road to the Old Police Station Waterhole (Athethew) (North Loop);
(ii)the four wheel drive access road to the Irminga (Irrmeng) Waterhole and Whistle Duck Creek day use camping area;
(iii)the land and waters adjacent to the two roads referred to in (i) and (ii) hereof the use of which the construction, establishment or operation of the two roads.
2.To avoid doubt, the roads excluded from NT Portions 4386 and 4387 as delineated on plan number S93/20A dated 30 August 1993 are excluded from the determination area.

I certify that the preceding three hundred and twenty eight (328) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:
Dated: 22 April 2004

Counsel for the Applicants: T Keely

Solicitor for the Applicants: Central Land Council

Counsel for the First Respondent: R Webb & R Bruxner

Solicitor for the First Respondent: Solicitor for the Northern Territory

Solicitor for the Second Respondent: Clayton Utz

Dates of Hearing: 18, 19, 20, 21, 22, 25, 26, 27, 28 September 2000
19, 20 March 2001

Date of Final Submissions 21 January 2003

Date of Judgment: 23 April 2004

ATTACHMENT

Arrawatyen	Kwementyey (Gordon) Jangala Nappa Lesley Foster Ampetyan
Antarrengeny	Nita Holmes Akemarr Albert Bailey Akemarr
Akweranty/Anwerret (referred to by either of these names)	Kwementyey (Peggy) Wickham Apetyarr Barry Wickham Apetyarr
Lyentyawel Ileparranem (referred to by either of these names)	Nita Holmes Akemarr Albert Bailey Akemarr Alan Philimac Kngwarrey
Tyaw	Alan Philmac Kngwarrey Jemima Foster Apetyarr
Warwepenty	Murphy Jappanangka Jorna Murphy Nappangardi
Kelantyerrang	Jimmy Jones Ampetyan

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG 6002 OF 1998

BETWEEN:	THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAY NATIVE TITLE CLAIM GROUP APPLICANT
AND:	NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT CONSERVATION LAND CORPORATION SECOND RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	23 APRIL 2004
WHERE MADE:	ALICE SPRINGS

JUDGE:	MANSFIELD J
DATE:	23 APRIL 2004
PLACE:	ALICE SPRINGS

Counsel for the Applicants:	T Keely
Solicitor for the Applicants:	Central Land Council
Counsel for the First Respondent:	R Webb & R Bruxner
Solicitor for the First Respondent:	Solicitor for the Northern Territory
Solicitor for the Second Respondent:	Clayton Utz
Dates of Hearing:	18, 19, 20, 21, 22, 25, 26, 27, 28 September 2000 19, 20 March 2001
Date of Final Submissions	21 January 2003
Date of Judgment:	23 April 2004