Fulton on behalf of the Mambali Amaling-Gan v Northern Territory of Australia (the Minyerri and Banka Banka Matters)
[2019] FCA 2156
•19 December 2019
FEDERAL COURT OF AUSTRALIA
Fulton on behalf of the Mambali Amaling‑Gan v Northern Territory of Australia (the Minyerri and Banka Banka Matters) [2019] FCA 2156
File numbers: NTD 20 of 2013, NTD 21 of 2013
NTD 18 of 2016, NTD 21 of 2016
NTD 43 of 2017, NTD 6016 of 2000
NTD 6030 of 2000, NTD 6031 of 2002,
NTD 32 of 2011, NTD 60 of 2017
NTD 61 of 2017, NTD 1 of 2018
NTD 6005 of 2001, NTD 6038 of 2001
NTD 6040 of 2001Judge: WHITE J Date of judgment: 19 December 2019 Catchwords: NATIVE TITLE – applications for determinations of native title over pastoral leases – four outstanding issues regarding the content of the proposed consent determinations – how the exclusion of a right to take animals which are the private or personal property of another should be formulated (clause 11(c) issue) – whether the determination should include a non-exhaustive list of activities permitted by the native title rights and interests and if so, whether, and in what terms, the activity with respect to the lighting of fires should be expressed (clause 14 issue) – how the other interests referred to in s225(c) of the Native Title Act 1993 (Cth) (the NT Act) should be expressed (the “other interests” issue) – whether a reservation of a liberty to apply should be included and, if so, its scope and its wording (clause 5(a) issue) – rulings on each issue given. Legislation: Crown Lands Ordinance 1931‑1954 (Cth) s 24
Native Title Act 1993 (Cth) ss 23F, 23G, 23GC, 44H, 94A, 223, 225, 248A, 248B, 253
Bushfires Management Act 2016 (NT)
Law of Property Act 2000 (NT)
Pastoral Land Act 1992 (NT) ss 3, 4, 6, 38, 39
Pastoral Land Regulations 1992 (NT) Reg 6
Cases cited: Agius v State of South Australia (No 6) [2018] FCA 358
Akiba (on behalf of the Torres Strait Islanders of Regional Seas Claim Group) v State of Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1
Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33; (2013) 250 CLR 209
Alyawarr v Northern Territory of Australia [2004] FCA 472; (2004) 207 ALR 539
Attorney‑General of the Northern Territory v Ward [2003] FCAFC 283; (2003) 134 FCR 16
BP (deceased) on behalf of the Birriliburu People v State of Western Australia [2016] FCA 671
Coulthard v State of South Australia [2018] FCA 1993
De Rose v State of South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290
Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199
King v Northern Territory of Australia [2007] FCA 1498
Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854
Manado v State of Western Australia [2018] FCAFC 238
Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422
Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752
Narrier v State of Western Australia [2016] FCA 1519
Neowarra v State of Western Australia [2003] FCA 1402
O’Keefe v Williams (1910) 11 CLR 171
Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819
Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908
Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26
Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 2) [2010] FCAFC 99; (2010) 272 ALR 97
Sampi v State of Western Australia [2005] FCA 777
State of Western Australia v Brown [2014] HCA 8; (2014) 253 CLR 507
State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316
State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186; (2015) 239 FCR 175
WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755
Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293
Date of hearing: 10 April 2019 Registry: Northern Territory Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 153 Counsel for the Applicants: Mr T Keely SC with Mr D Spicer-Harden Solicitor for the Applicant: Northern Land Council Counsel for the Northern Territory of Australia: Mr L Peattie Solicitor for the Respondent: Solicitor for the Northern Territory Counsel for Lexcray Pty Ltd: Mr J Horton QC Solicitor for Lexcray Pty Ltd: Cooper Grace Ward Counsel for Maximus No. 82 Pty Ltd: Mr B Torgan Solicitor for Maximus No. 82 Pty Ltd: Ward Keller Counsel for the Central Land Council and the Ngalyia Aboriginal Corporation: Mr S Glacken QC with Mr D Mavec Solicitor for the Central Land Council and the Ngalyia Aboriginal Corporation: Central Land Council Counsel for the Northern Territory Cattlemen’s Association and Jam Pastoral Pty Ltd: Mr B Torgan Solicitor for the Northern Territory Cattlemen’s Association and Jam Pastoral Pty Ltd: Ward Keller Counsel for the remaining parties: The remaining parties did not appear ORDERS
NTD 20 of 2013 BETWEEN: VINCENT FULTON, ROY CRESSWELL, PETER ELLIS, BARNEY ELLAGA AND NELSON LIMMEN ON BEHALF OF THE MAMBALI AMALING‑GAN, MURUNGUN IGALUMBA, MURUNGUN MILGAWIRRI, BUDAL YUWARAN AND GUYAL BARDI BARDI DUMNYUN‑NGATANYANA ESTATE GROUPS
(Nutwood Downs)Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
LEXCRAY PTY LTD
Second Respondent
NTD 21 of 2013 BETWEEN: ASHWOOD FARRELL, DENNIS WATSON, ESTHER WILFRED, PETER ELLIS AND ROY CRESSWELL ON BEHALF OF THE MURUNGUN YUNULALDA, BUDAL LIRIJAL, MAMBALI AMALING-GAN, MURUNGUN IGALUMBA AND MAMBALI LAJARIRR ESTATE GROUPS
(Hodgson River Pastoral Lease)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
Respondent
NTD 18 of 2016 BETWEEN: JACOB RILEY, REX ISAAC, GORDON NAWUNDULPI, JULIE LIMMEN MILLAR, HENRY NUNGGUMAJBARR AND HENRY JULABA NUMAMURDIRDI ON BEHALF OF THE BURDAL RILEY, MURRUNGUN WUNUBARI AND MAMBALI WALANGARA ESTATE GROUPS (Lorella # 2 Pastoral Lease)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
ENERGIA MINERALS LIMITED
Second RespondentARMOUR ENERGY LIMITED (and another named in the Schedule)
Third Respondent
NTD 21 of 2016 BETWEEN: ROBERT O’KEEFE SENIOR, DOUGLAS PLUTO, TIMSON LANSEN, JEROME PLUTO, DESMOND LANSEN AND ASMAN RORY ON BEHALF OF THE GARAMBARINI WURDALIYA, NANGGUYA MAMBALI, NGURRMU/JAWUMA RRUMBURRIYA AND WUNUBARI MURRUNGUN ESTATE GROUPS (Billengarrah #2 Pastoral Lease)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
ARMOUR ENERGY LIMITED
Second Respondent
NTD 43 of 2017 BETWEEN: PETER LANSEN, GRACE DANIELS, YVONNE FORREST, DAMIEN TONSON, JULIE LIMMEN, DENIS WATSON AND DAVID JOHN ON BEHALF OF THE GUYAL MANABURRU ESTATE GROUP, BURDAL MINGKANYI ESTATE GROUP, BURDAL RILEY ESTATE GROUP, MURRUNGUN WUNUBARI ESTATE GROUP, MURRUNGUN BALUGANDA/LANGGABANY ESTATE GROUP, MAMBALI WALANGARA ESTATE GROUP, MAMBALI NGUBAYIN ESTATE GROUP AND THE MAMBALI NANGGUYA ESTATE GROUP (Nathan River Pastoral Lease)
ApplicantAND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
IMPERIAL OIL & GAS PTY LIMITED
Second Respondent
NTD 6016 of 2000 BETWEEN: DAVID HARVEY AND GRAHAM FRIDAY ON BEHALF OF THE MARA, ALAWA, YANYUWA AND GURDANJI PEOPLE (Lorella Downs)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
Respondent
LANDMARK DEVELOPMENTS PTY LTD
Second RespondentMAXIMUS NO. 82. PTY LTD
Third Respondent
NTD 6030 of 2000 BETWEEN: ASMAN RORY, TOM HUME AND CHRISTOPHER PLUTO ON BEHALF OF THE ALAWA PEOPLE (Billengarrah)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
Respondent
MAXIMUS NO 82. PTY LTD
Respondent
NTD 6031 of 2002 BETWEEN: EDNA PLUTO ON BEHALF OF THE NANGKUYU, MANABURRU, BALUGANDA & ORS PEOPLES
(Lorella‑Nathan River)Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
LANDMARK DEVELOPMENTS PTY LTD
Second RespondentMAXIMUS NO 82. PTY LTD (and another named in the Schedule)
Third Respondent
NTD 32 of 2011 BETWEEN: DICK FOSTER ON BEHALF OF THE KANTURRPA, NGAPA, PIRRTANGU, WALANYJA, WALANYPIRRI, WARRANANGKU AND WIRNTIKU
GROUPS (Helen Springs Pastoral Lease)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
Respondent
TELSTRA CORPORATION LIMITED
Respondent
NTD 60 of 2017 BETWEEN: TONY FOSTER, LENNIE WILLIAMS, IAN WAISTCOAT, ANNIE MORRISON, GORDON NOONAN AND HARRY MORRISON ON BEHALF OF THE JALAJIRRPA, KUNAPA AND PIRRTANGU GROUPS (Banka Banka East Pastoral Lease)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
OM (MANGANESE) LTD
Second Respondent
NTD 61 of 2017 BETWEEN: HARRY MORRISON,GORDON NOONAN, BRETT HUGHES, RONALD HUGHES, STANLEY STOKES, LEON STOKES, RONALD BROWN, FABIAN BROWN, IAN WAITCOAT, ANNIE MORRISON, BETTY MARTIN AND DIANNE MARTIN ON BEHALF OF THE KUNAPA, KANGAWARLA, KANTURRPA, MARNTIKARA, NGARRKA AND PIRRTANGU GROUPS (Banka Banka West Pastoral Lease)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
OM (MANGANESE) LTD
Second Respondent
NTD 1 of 2018 BETWEEN: PETER HENDERSON, HARRY BATES, HEATHER WILSON, WARREN CAMPBELL, MARY NOONAN, LINDA BENSON, NEIL ALUM, JEFFREY DIXON AND MARK RAYMOND ON BEHALF OF THE BAMAYU (WURWANAWANJI-YARRAYARRA), BAMAYU (TITIRLKU), MARLINJA, NGAPA JANGIRULU, WALANYPIRRI AND WILYUKU GROUPS (Powell Creek Pastoral Lease)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
CONSOLIDATED PASTORAL COMPANY PTY LIMITED
Second RespondentAPT PIPELINES (NT) PTY LTD (ACN 075 733 336)
Third Respondent
NTD 6005 of 2001 BETWEEN: ARCHIE ALLEN, LEO DIXON, GORDON NOONAN, MARC JOHNNY, DIANNE STOKES, HARRY MORRISON, HENRY NORRIS, DAY DAY FRANK AND ELIZABETH JOHNSON ON BEHALF OF THE KUNAPA, KURTINJA & MANGIRRIJI PEOPLES (Banka Banka)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
Respondent
NTD 6038 of 2001 BETWEEN: LADY DIXON, WILLIAM KINGSTON, ERIC KINGSTON, PETER HENDERSON ON BEHALF OF THE MALIMALI/YAPARLAYAPARLA ESTATE GROUP, THE WESTERN NGAPA ESTATE GROUP, THE WALANYPIRRI ESTATE GROUP AND THE MARLINJA ESTATE GROUP, JANET NABARULA, MARY NOONAN, POMPEY RAYMOND AND JEFFREY DIXON ON BEHALF OF THE MALI MALI, YAPA YAPA, WALANYPIRI, JARRIMANU & WILYUKU PEOPLE (Powell Creek)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
Respondent
CONSOLIDATED PASTORAL COMPANY PTY LTD ABN 22 010 080 654
RespondentNT GAS PTY LTD
RespondentTELSTRA CORPORATION LIMITED
Respondent
NTD 6040 of 2001 BETWEEN: ANGUS RILEY AND MAY FOSTER ON BEHALF OF THE WIRNTIKU, MILWAYIJARRA & NGAPA PEOPLE
(Helen Springs)Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
Respondent
CONSOLIDATED PASTORAL COMPANY PTY LTD ABN 22 010 080 654
RespondentNT GAS PTY LTD
RespondentTELSTRA CORPORATION LIMITED
Respondent
JUDGE:
WHITE J
DATE OF ORDER:
19 DECEMBER 2019
THE COURT ORDERS THAT:
1.The parties in each subgroup confer with a view to providing revised minutes of the Determinations to reflect the rulings in these reasons for judgment.
2.The matters in each subgroup are referred to a Case Management Conference before a Registrar at a date and time to be fixed by the Registrar with a view to finalising the Determinations and the arrangements for the Determinations.
3.There be liberty to the parties to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHITE J
The parties to applications for determinations of native title under the Native Title Act 1993 (Cth) (the NT Act) over several pastoral leases in the Northern Territory have agreed on most of the terms for the determinations. However, they have been unable to agree on four principal matters. The Court is asked to determine those matters on the basis that, once determined, each application will proceed to a consent determination.
The applications and the parties
There are two groups of applications. The first is known as the Minyerri Subgroup and comprises eight actions: NTD20/2013 (Nutwood Downs Pastoral Lease), NTD21/2013 (Hodgson River Pastoral Lease), NTD18/2016 (Lorella #2 Pastoral Lease), NTD21/2016 (Billengarrah #2 Pastoral Lease), NTD43/2017 (Nathan River Pastoral Lease), NTD6016/2000 (Lorella Downs), NTD6031/2002 (Lorella/Nathan River), and NTD6030/2000 (Billengarrah). The last three of these applications are known as “polygon claims”, because the areas in respect of which they seek a determination of native title correspond to the irregular shaped areas of mineral leases. The remaining actions correspond with the areas of the named pastoral leases and overlap the areas of the polygon claims. It is expected that the three polygon claims will be discontinued before the determinations of native title are made in respect of the remaining five claims.
The second group is known as the Banka Banka Subgroup, and comprises seven actions: NTD32/2011 (Helen Springs Pastoral Lease), NTD60/2017 (Banka Banka East Pastoral Lease), NTD61/2017 (Banka Banka West Pastoral Lease), NTD1/2018 (Powell Creek Pastoral Lease), NTD6005/2001 (Banka Banka), NTD6038/2001 (Powell Creek) and NTD6040/2001 (Helen Springs). The last three applications are polygon claims and they too will be discontinued before the determinations are made in the other actions.
The applicants in each action are represented by solicitors employed by the Northern Land Council (the NLC). The Northern Territory of Australia (the Northern Territory) is the first respondent to each action.
The second respondent to NTD20/2013 (Nutwood Downs Pastoral Lease) is Lexcray Pty Ltd (Lexcray), the holder of the pastoral lease over Nutwood Downs.
The Northern Territory Cattlemen’s Association (the NTCA) and Jam Pastoral Pty Ltd were granted leave to intervene in all of the Minyerri Subgroup matters. They had common representation with Maximus No 82 Pty Ltd (Maximus), which is a respondent to NTD6016/2000 (Lorella Downs), NTD6031/2002 (Lorella/Nathan River), NTD6030/2000 (Billengarrah) and NTD18/2016 (Lorella #2). Maximus also intervened in the other Minyerri Subgroup matters. I will refer to NTCA, Jam Pastoral and Maximus collectively as “the Pastoral Interests”.
In these reasons, I will, when referring to the Northern Territory, the Pastoral Interests and Lexcray collectively, describe them as “the respondents”.
The Central Land Council and the Ngalyia Aboriginal Corporation RNTBC were granted leave to intervene in the hearing. I will refer to these two entities collectively as “the CLC Interveners”. Ngalyia is the Registered Native Title Body Corporate for the native title area encompassed by the Mount Doreen Pastoral Lease in the Central Desert Region of the Northern Territory. It is also the applicant in an as yet undetermined application for revision of a native title determination.
Armour Energy Ltd, which is a respondent to NTD18/2016 (Lorella #2 Pastoral Lease) and NTD21/2016 (Billengarrah #2 Pastoral Lease), Energia Minerals Ltd, which is a respondent to NTD18/2016 (Lorella #2 Pastoral Lease), Imperial Oil & Gas Pty Ltd, which is a respondent to NTD43/2017 (Nathan River), Landmark Developments Pty Ltd, which is a respondent to NTD6016/2000 (Lorella Downs) and NTD6031/2002 (Lorella/Nathan River), The Amateur Fisherman’s Association of the Northern Territory, which is a respondent to NTD6031/2002 (Lorella/Nathan River), Telstra Corporation Limited, which is a respondent to NTD32/2011 (Helen Springs Pastoral Lease), NTD6038/2001 (Powell Creek) and NTD6040/2001 (Helen Springs), APT Pipelines Pty Ltd, which is a respondent to NTD1/2013 (Powell Creek Pastoral Lease), Consolidated Pastoral Company Pty Ltd, which is a respondent to NTD1/2018 (Powell Creek Pastoral Lease), NTD6038/2001 (Powell Creek) and NTD6040/2001 (Helen Springs), OM (Manganese) Ltd, which is a respondent to NTD60/2017 (Banka Banka East Pastoral Lease), and NTD61/2017 (Banka Banka West Pastoral Lease) and NT Gas Pty Ltd, which is a respondent to NTD6038/2001 (Powell Creek) and NTD6040/2001 (Helen Springs), did not seek to be heard on the matters about which the parties are not agreed.
There have been extensive discussions between the NLC on behalf of each of the applicants, the Northern Territory, the NTCA and some of the individual pastoral leaseholders regarding the proposed determinations. As indicated, those discussions have resulted in agreement on most of the terms of the proposed determinations.
The form of the determination proposed by the applicants for each determination comprises 16 clauses. The form of the determination proposed by the respondents comprises 17 clauses. The difference arises because the respondents propose the inclusion of a clause (cl 14 in their proposals) setting out a non‑exhaustive list of activities authorised by the native title rights and interests determined in each application. The applicants oppose the inclusion of this clause.
The differences between the parties are:
(a)whether a reservation of a liberty to apply should be included in cl 5(a) and, if so, its scope and its wording;
(b)the wording of cl 11(c)(ii)C with respect to the exclusion of a right to take animals which are the private or personal property of another;
(c)whether cl 14 of the determination should include a non-exhaustive list of activities permitted by the native title rights and interests and if so, whether, and in what terms, the activity with respect to the lighting of fires should be expressed; and
(d)the manner in which the other interests to which s 225(c) of the NT Act refers are to be expressed.
It is convenient to address separately the matters about which the parties are in disagreement, albeit not in the order of the paragraph numbers in the determination which gave rise to them.
Clause 11(c) – The animals issue
Clauses 9‑13 are concerned with the identification of the native title rights and interests (NTRI) in the proposed determinations. Clauses 9 and 10, about which the parties are agreed, provide as follows:
9.The native title rights and interests of the estate group members referred to in clause 5 in relation to those parts of the Determination Area identified in Schedule C, being an area/s where there has been partial extinguishment of native title, are the rights:
(a) to access, remain on and use the areas;
(b) to access and to take for any purpose the resources of areas; and
(c) to protect places, areas and things of traditional significance.
10.The native rights and interests of the estate group members referred to in clause 7 above in relation to those parts of the Determination Area identified in Schedule C, being an area/s where there has been partial extinguishment of native title, are the rights:
(a) to access, remain on and use the areas; and
(b) to access the resources of the areas.
After some revision before and during the hearing, the applicants, the Northern Territory and Lexcray propose that cl 11 provide:
11. The native title rights and interests do not confer on the native title holders:
(a)possession, occupation, use and enjoyment of those parts of the Determination Area identified in Schedule C to the exclusion of all others;
(b)any right to control access to and use of those parts of the land and waters of the areas or their resources;
(c) any right to access or take:
…
(ii)resources that are the private or personal property of another, including but not limited to:
…
C.animals, including stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animal, that are the private or personal property of another; and
D.plants, crops and grasses that are the private or personal property of another.
The Pastoral Interests propose that cl 11(c)(ii)C. be in slightly different form, namely:
C.animals that are the private or personal property of another, including stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animal, and
Apart from submitting that cl 11(c)(ii)C as originally proposed appeared “inappropriate”, the CLC Interveners did not make any submission concerning this subclause.
The differences in the respective proposals concern only the wording of cl 11(c)(ii)C. Those differences are minor. The applicants wish there to be a recognition in the determinations that there may be some animals present on the area of a pastoral lease in which they have an interest. Wild native animals are an example – see State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward HCA) at [194]; Neowarra v State of Western Australia [2003] FCA 1402 at [505] (Sundberg J). The applicants seek to have the proposed determinations make this plain by indicating that the exclusion of their interest in animal resources is limited to those which are the private or personal property of another. At the same time, they recognise that their NTRI are not to include rights with respect to “stock” as defined in the Pastoral Land Act 1992 (NT) and the progeny of such stock.
The term “stock” is defined in s 3 of the Pastoral Land Act:
stock means a species of animal permitted by or under this Act or the terms of a pastoral lease to be pastured on pastoral land as part of the pastoral enterprise under the lease.
Regulation 6 of the Pastoral Land Regulations 1992 (NT) made under the Pastoral Land Act provides:
In every pastoral lease, unless otherwise provided in the lease, stock includes beef cattle, buffaloes, horses, donkeys, mules or camels which are not in a feral state.
The term “feral state” used in Reg 6 is not defined. However, s 3 of the Pastoral Land Act defines “feral animal” as “an animal of a kind introduced into Australia since 1787 that is living in a wild state”.
The Pastoral Interests advanced two submissions in support of their alternative formulation. First, they submitted that the ordering of the terms in its proposed clause indicated clearly that “stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animal” are a subset of animals which are the private or personal property of another and thereby made clearer the intention that there be no NTRI with respect to animals which are private property. Secondly, the Pastoral Interests referred to the desirability of there being consistency in drafting style. For this purpose, they submitted that their formulation has the advantage of adopting a similar drafting technique as is used in cl 11(c)(ii)D.
I do not regard either of these considerations as persuasive. In my view, either formulation indicates that the term “animals” in cl 11(c)(ii)C includes stock as defined and the progeny of such stock provided that the stock and its progeny be the “private or personal property” of another. I do not agree that the different composition of the clause alters the meaning. Nor am I able to discern a relevant difference in drafting style.
In my view, the wording proposed by the applicants, the Northern Territory and Lexcray indicates that the NTRI will not include the right to access or take animals which are the private or personal property of another and those animals include stock within the meaning of the Pastoral Land Act and the progeny of any such animal.
It is possible that there is some unnecessary surplusage in the expression “the private or personal property of another” given that these words are also in the chapeau to cl 11(c)(ii). However, no party or intervener critiqued the proposed clause on that account.
I am satisfied that the formulation of cl 11(c)(ii)C proposed by the applicants, the Northern Territory and Lexcray is appropriate and will adopt it.
Clause 14 – The list of activities issue
This issue concerns the form of expression of the NTRI in the determinations.
In the form of the determinations proposed by the applicants, the NTRI are identified in cll 9‑13 inclusive. Clauses 9 and 10 and relevant parts of cl 11 have been set out earlier in these reasons. Clause 12 provides:
12.The native title rights and interests are subject to and exercisable in accordance with:
(a) the traditional laws and customs of the native title holders; and
(b)the laws of the Northern Territory of Australia and the Commonwealth of Australia.
Clause 13 provides that there are no NTRI in minerals, petroleum and in certain prescribed substances.
The respondents propose an additional clause (cl 14) containing a non‑exhaustive list of activities permitted by the NTRI identified in cll 9‑13:
14.Without limiting the native title rights and interests described in clauses 9 to 13 in any way, and without purporting to exhaustively describe the activities which those rights authorise or permit, the rights and interests referred to in clauses (sic) 9 enable the estate group members referred to in clause 5 to:
(a) travel over, move about and access the land and waters;
(b) hunt and fish on the land and waters;
(c)live and camp on the areas, and to erect shelters and other structures on the land and waters;
(d) light fires on the land and waters;
(e)conduct and participate in the following activities on the land and waters:
(i) cultural activities;
(ii)cultural practices relating to birth and death, including burial rites;
(iii) ceremonies;
(iv) meetings;
(v)teaching the physical and spiritual attributes of sites and places on those areas that are of traditional significance;
(f)maintain and protect sites and places on those areas that are of traditional significance;
(g)be accompanied onto the land and waters by persons who, though not native title holders, are:
(i)people required by traditional law and custom for the performance of ceremonies or cultural activities on the land and waters;
(ii)people who have rights in relation to the land and waters according to the traditional laws and customs acknowledged by the estate group members; and
(iii)people required by the estate group members to assist in, observe, or record traditional activities on the land and waters.
Lexcray supports the Northern Territory’s proposal save for one exception. It proposes that cl 14(d) should in addition have the underlined words:
(d)light fires on the land and waters for domestic purposes and not for the clearance of vegetation.
Clause 14 as ultimately proposed by the Pastoral Interests is as follows:
14.Without limiting the native title rights and interests described in clauses 9 to 13 in any way, and without purporting to exhaustively describe the activities which those rights authorise or permit, the rights and interests referred to in clauses (sic) 9 enable the estate group members referred to in clause 5 to:
(a) travel over, move about and access those areas;
(b) hunt and fish on the land and waters of those areas;
(c)live and camp on the areas, and to erect shelters and other structures on those areas;
(d) conduct and participate in the following activities on those areas:
(i) cultural activities;
(ii)cultural practices relating to birth and death, including burial rites;
(iii) ceremonies;
(iv) meetings;
(v)teaching the physical and spiritual attributes of sites and places on those areas that are of traditional significance;
(e)maintain and protect sites and places on those areas that are of traditional significance;
(f)be accompanied onto those areas by persons who, though not native title holders, are:
(i)people required by traditional law and custom for the performance of ceremonies or cultural activities on the areas;
(ii)people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; and
(iii)people required by the estate group members to assist in, observe, or record traditional activities on the areas.
The underlining indicates the differences between the Pastoral Interests’ proposal and that of the Northern Territory. As is apparent, apart from the use of the term “areas” instead of the term “land and waters”, the substantive difference between the two proposals lies in the inclusion and wording of cl 14(d) concerning the lighting of fires. The Pastoral Interests do not propose that there be a subclause concerning the lighting of fires at all, but said that if such a subclause is to be included, they have a “preference” for Lexcray’s terminology over that of the Northern Territory.
The applicants oppose altogether the inclusion of a list of activities of the kind proposed by the respondents in cl 14. They contend that the inclusion of such a list is unnecessary and creates potential for confusion.
The CLC Interveners did not make any submissions explicitly directed to the proposed cl 14. Some of the submissions which they made on other issues were capable, at a level of generality, of bearing on the issues to which the proposed clause gives rise.
No party or intervener suggested that the use of the term “land and waters” rather than “areas” was a matter of any consequence. However, s 225 of the NT Act uses the term “determination area” to describe an area of land or waters, which suggests that the term “area” may be preferable.
Putting that issue to one side, there are two principal issues with respect to cl 14: first, whether the determination should include a non‑exhaustive list of activities encompassed by the NTRI and, secondly, if so, whether, and in what terms, the activity with respect to the lighting of fires is to be expressed.
Should a non-exhaustive list of activities be included?
The submissions of the respondents
The respondents seek the inclusion in the determination of a non‑exhaustive list of activities permitted by the NTRI in consequence of their agreement to cll 9 to 13 in the terms proposed by the applicants. The wording of those clauses is a departure from the formulation of the NTRI expressed in King v Northern Territory of Australia [2007] FCA 1498 (Newcastle Waters), which has been followed since 2007 in all but a small number of native title determinations over pastoral leases in the Northern Territory.
The Newcastle Waters formulation of the NTRI is as follows:
9.In relation to the non-exclusive areas, the native title rights and interests in the estate group members that are possessed under their traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, non-exclusive rights to use and enjoy those areas being:
(a)the right to travel over, to move about and to have access to those areas;
(b) the right to hunt and to fish on the land and waters of those areas;
(c)the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d)the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease 1074 or Perpetual Pastoral Lease 947;
(e)the right to live, to camp and for that purpose to erect shelters and other structures on those areas;
(f)the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
(g)the right to conduct and to participate in the following activities on those areas:
(i) cultural activities;
(ii)cultural practices relating to birth and death, including burial rites;
(iii) ceremonies;
(iv) meetings;
(v)teaching the physical and spiritual attributes of sites and places on those areas that are of significance under their traditional laws and customs;
(h)the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs;
(i)the right to share or exchange subsistence and other traditional resources obtained on or from those areas;
(j)the right to be accompanied on to those areas by persons who, though not native title holders, are:
(i)people required by traditional law and custom for the performance of ceremonies or cultural activities on the areas;
(ii)people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members;
(iii)people required by the estate group members to assist in, observe, or record traditional activities on the areas;
(k)the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof.
These native title rights and interests do not confer on the estate group members possession, occupation, use and enjoyment of the non-exclusive areas, to the exclusion of all others.
The Northern Territory submitted, and the applicants did not dispute, that terms identical or substantially identical to the Newcastle Waters formulation of NTRI have been adopted in some 86 subsequent determinations of native title over the areas of pastoral leases in the Northern Territory. The Court was told that it is “significant developments” in the jurisprudence since the formation of the NTRI in Newcastle Waters which had provided the impetus for the change in approach.
As is apparent, the expression of the NTRI in cll 9 and 10 in the proposed determinations is much more general than the Newcastle Waters formulation. In particular, the expression of the NTRI as rights to “access” and to “use” the areas the subject of the determination is to express those rights very generally.
The respondents advanced the following matters in support of the inclusion of the non‑exhaustive list of permitted activities:
(a)the inclusion of the list will be of benefit to the native title holders as it will put beyond doubt that their determined NTRI permit, at the least, the named activities. The benefit of such a list in providing certainty is reflected in the widespread use of the Newcastle Waters formulation in determinations of native title over pastoral leases;
(b)as the manner of expression of the list is “non‑limiting and non‑exhaustive”, the proposed cl 14 can have no adverse effect on the applicants’ NTRI;
(c)in the negotiation of the terms of the proposed determinations, the respondents had conceded a matter sought by the applicants, namely, the manner of expression of the NTRI, despite its departure from the Newcastle Waters formulation. The Northern Territory submitted that, in that circumstance, it would be “reasonable”, as part of the quid pro quo, for the determinations to include a matter sought by the respondents. In support of the submission, counsel referred to the public interest in parties negotiating the resolution of their differences and in doing so by making mutual compromises: Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26];
(d)the additional certainty which the list would provide is especially important given the departure from the Newcastle Waters formulation of the NTRI and the certainty which it afforded in the context of the co‑existence of rights;
(e)as the determination will bind not only the present parties but also successors in title and, to the extent that it is a judgment in rem, third parties, there is value in setting out in a formal publicly available document matters which afford greater certainty. The Northern Territory emphasised in this respect its function in ensuring that the terms of determinations reflect the interests of the broader Northern Territory community; and
(f)the inclusion of a non‑exhaustive list of activities is consistent with the trend in other places, in particular Western Australia, with respect to determinations recognising rights of a broadly expressed kind including such lists. The Northern Territory referred to the form of the determination made by the Full Court in Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 2) [2010] FCAFC 99; (2010) 272 ALR 97 and to 16 consent determinations made in respect of pastoral lease areas in Western Australia.
Lexcray also supported in the inclusion of the non‑limiting and non‑exhaustive list based on the Newcastle Waters formulation. It emphasised that the Newcastle Waters formulation had been made to deal with the relationship between NTRI of the native title holders, on the one hand, and the rights of pastoralists under pastoral leases, on the other; and submitted that the Newcastle Waters formulation made clear the scope of the NTRI, and the inclusion of the non‑exhaustive list would reduce the potential for future litigation concerning the extent of the NTRI, and provided a basis for “peaceable coexistence” of native title holders and pastoralists. However, despite its expressed preference for a Newcastle Waters like formulation, Lexcray did not seek to resile from its agreement to cll 9 and 10 in the determination concerning Nutwood Downs.
While the public interest in parties resolving their disputes by agreement is an important matter, I indicate now that I do not regard the Territory’s appeal to the perceptions of “fairness” or “reasonableness” based on the concessions in the parties’ negotiations as providing a principled basis for the resolution of the remaining differences between the parties. In any event, an attempt by the Court to evaluate the extent and significance of concessions is likely to be a fraught exercise, and one which would distract attention from matters which are properly to be considered.
The submissions of the applicants
The applicants referred to a number of determinations of native title expressing the NTRI in the manner set out in cl 9 of the proposed determinations. These include the determinations in Akiba (on behalf of the Torres Strait Islanders of Regional Seas Claim Group) v State of Queensland (No 2) [2010] FCA 643, (2010) 204 FCR 1 (Finn J); Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293 at cl 3 of the Determination (McKerracher J); BP (deceased) on behalf of the Birriliburu People v State of Western Australia [2016] FCA 671 at cl 3 of the Determination (North J); Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 (McKerracher J); Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908 at cl 11 (Mansfield J); Narrier v State of Western Australia [2016] FCA 1519 (Mortimer J); and Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 (North J). The applicants emphasised that a number of these determinations were made after contested hearings and that some (Murray, Narrier and Manado) related to areas which included pastoral leases.
As I understood the submission, these decisions constituted the “developments” in the jurisprudence to which the applicants referred.
Secondly, the applicants submitted that the fact that the list of activities is non‑exhaustive and non‑limiting made its inclusion of doubtful utility.
Thirdly, the applicants noted that, while the list proposed by the respondents was in part derived from the Newcastle Waters’ list, it was not the complete Newcastle Wasters’ list. In particular, it did not include rights (c), (d), (i) and (k). Those rights are as follows:
(c)the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d)the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease 1074 or Perpetual Pastoral Lease 947;
(i)the right to share or exchange subsistence and other traditional resources obtained on or from those areas;
(k)the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof.
As part of this submission, the applicants characterised the proposed non‑exhaustive list of activities as “unbalanced” and as not conveying the “feel” of the NTRI which are recognised.
Finally, the applicants submitted that the inclusion of the non‑exhaustive list may result in persons being misled as to the nature and extent of the recognised NTRI, because some may understand the inclusion of the list to indicate that the NTRI under the determination are, in substance, the same as the Newcastle Waters rights.
The overriding submission of the applicants was that it was for the respondents and interveners to demonstrate good reason for the inclusion of their proposed cl 14.
Consideration
The appropriate starting point is s 225 of the NT Act which defines the term “determination of native title”. It provides:
225 Determination of native title
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.
Note:The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests.
The expression “native title rights and interests” is defined in s 223 which provides (relevantly):
Common law rights and interests
(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.
Hunting, gathering and fishing covered
(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
…
Thus, a determination of native title is a determination of the rights defined in the NT Act: Ward HCA at [16].
It was common ground that each of the pastoral leases which will be the subject of the proposed determinations is a non‑exclusive pastoral lease to which s 225(e) refers – see ss 248A and 248B of the NT Act. Accordingly, s 225(e) has no operation presently.
Section 94A of the NT Act requires that a determination of native title set out details of the matters mentioned in s 225 of the NT Act.
The combined effect of ss 94A, 223 and 225 is that a determination of native title should contain not only the matters specified in s 225 but also the “details” of those matters. Relevantly for present purposes, that requires a determination to contain details of the nature and extent of the NTRI in the determination area. It is details of the NTRI which are to be specified: not details of the activities which native title holders may engage in the exercise of those NTRI.
The distinction between the existence of a native title right, on the one hand, and the manner of its exercise, on the other, is well established. In Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422 at [84], Gleeson CJ, Gummow and Hayne JJ said:
[T]he exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise …
In Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33; (2013) 250 CLR 209, both the minority (French CJ and Crennan J) at [25]‑[29] and the majority (Hayne, Kiefel and Bell JJ) distinguished between the activities permitted by the NTRI and the NTRI themselves, with the effect that certain activities could be prohibited without the NTRI themselves being extinguished. The majority confirmed, at [59], that NTRI may properly be seen as a bundle of rights, the separate components of which may be extinguished separately. Their Honours also said, at [67]‑[68], that focussing on the activity described in a particular way rather than upon the relevant native title right may be apt to mislead:
[67]Focusing upon the activity described as "taking fish and other aquatic life for sale or trade", rather than focusing upon the relevant native title right, was apt to, and in this case did, lead to error. That shift of focus, from right to activity, led to error in this case by inferentially reframing the question determinative of extinguishment as being whether the statutory prohibition against fishing for a particular purpose without a licence was inconsistent with the continued existence of a native title right to fish for that purpose. But the relevant native title right that was found in this case was a right to take resources for any purpose. No distinct or separate native title right to take fish for sale or trade was found. The prohibition of taking fish for sale or trade without a licence regulated the exercise of the native title right by prohibiting its exercise for some, but not all, purposes without a licence. It did not extinguish the right to any extent.
[68]The Full Court's focus upon a particular activity was not consistent with the plurality's observation in Ward that reference to activity "is relevant only to the extent that it focuses attention upon the right" …
(Emphasis in the original and citation omitted)
The distinction between NTRI and their exercise was also made plain in State of Western Australia v Brown [2014] HCA 8; (2014) 253 CLR 507 in which it was confirmed, at [34], that the identification of the rights requires an objective ascertainment of the legal nature and content of the respective rights; that the nature and content of a right is not ascertained by reference to the way in which it has been, or will be exercised: ibid; and that consideration of the way in which a right has been exercised is relevant only in so far as it assists the correct identification of the nature and context of the right: ibid.
The distinction between NTRI and the activities in which native title holders may engage in their exercise was also observed by McKerracher J throughout his decision in Murray, including at [504], [510], [681] and [685], but I did not understand the applicants to contend that his Honour had addressed the issue presently before the Court.
Moreover, I do not understand the issue to have been addressed by Mansfield J in Borroloola or by Mortimer J in Narrier. The remaining matters to which the applicants referred to as emanating from or evidencing developments in the jurisprudence were consent determinations which are of some, but limited, assistance in the present context. Further, unlike the present applications, two (Murray and Birriliburu) concerned the determination of native title rights which were exclusive.
In my view, the distinction between the right and the manner of its exercise does not of itself indicate that the proposed cl 14 is unnecessary or inappropriate. That is particularly so when there is close coincidence between the identification of the right and its exercise.
Some authorities indicate the inappropriateness of attempts to particularise NTRI in determinations of native title in ways which do not reflect the determined rights and interests. The course of the decisions in Sampi provides an example. At first instance (Sampi v State of Western Australia [2005] FCA 777), French J, having found that the NTRI of the claimants in respect of unallocated Crown Land and certain other lands were exclusive, declined to express those rights as rights of “possession, occupation, use and enjoyment” of the land and continued:
[1072]The reference to ‘use and enjoyment’ in the context of exclusivity is, in my opinion, too widely stated and could pick up a variety of rights not contemplated by traditional law and custom. Use and enjoyment rights are, best defined more specifically. The right to possess and occupy as against the whole world carries with it the right to make decisions about access to and use of the land by others. The right to speak for land and to make decisions about its use and enjoyment by others is also subsumed in that global right of exclusive occupation.
(Emphasis added)
His Honour then went on to list, in a non‑exhaustive fashion, particular NTRI which he had found established on the evidence.
However, on appeal (Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26), North and Mansfield JJ warned against attempts to identify NTRI with greater precision than is expressed in the formulation of those rights and interests under the laws and customs of the claimant people:
[120]To require a greater precision than is expressed in the formulation of the rights or interests under the laws or customs of the Aboriginal people is to fail to recognise the rights or interests which arise under that law. Once the statutory requirements for the recognition of native title are established, there is no warrant for limiting the rights and interests by adding a gloss to the statutory requirements in the form of a stipulation for a particular level of precision in the articulation of the rights or interests.
With respect to the rejection by French J of the inclusion of the words “use and enjoyment”, North and Mansfield JJ said:
[153]We agree with the submission of the State that the words “use and enjoyment” do not add anything to the rights of possession and occupation. The right to use and enjoy the land is implicit in the right to possess and occupy the land. But that does not mean that the use of the expanded phrase is without a purpose. The additional words make explicit what is implicit. In so doing they serve to express the right without expanding its scope. This explains why the Court has in so many cases used this phrase as the usual description for such rights. There is a value in consistent usage in the cases to reflect the same rights. The primary judge, however, departed from the usual usage because he regarded the words “use and enjoyment” as potentially picking up a variety of rights not contemplated by traditional law and custom. Such rights were not identified and we are unable to determine what such rights might be. Consequently, the determination should describe the right to exclusive possession by including reference to “use and enjoyment”.
The determination made by North and Mansfield JJ to give effect to their reasons in Sampi expressed the relevant NTRI of the claimant group as “the right of possession, occupation, use and enjoyment of that part as against the whole world, including the following rights” which was then followed by a list of some seven individual rights. As noted earlier, the respondents relied on the approach in Sampi to indicate the appropriateness of their proposed cl 14.
However, there are several authorities which indicate that, at least in cases like the present involving areas covered by pastoral leases in which the NTRI do not confer rights of possession, occupation, use and enjoyment to the exclusion of others, it is preferable for the determined rights to be expressed by reference to the activities which may be conducted as of right in relation to the land and waters. In State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (Ward FCA), Beaumont and von Doussa JJ said:
[205]The degree of specificity required in a determination will depend upon the nature and extent of the native title rights and interests, and is likely to vary from case to case, depending upon the evidence …
…
[210]In cases where the evidence establishes that the nature and extent of rights and interests in relation to land enjoyed by an indigenous group are less than an exclusive right to possess, occupy, use and enjoy the land, it will be necessary to sufficiently identify them. If the rights held are, for example, limited to rights to fish or hunt in certain areas (rights perhaps limited to certain species of animal), or for a particular purpose, or limited to a right merely to pass over land, then the description of the right might most conveniently be expressed by describing the activity or activities which the right permits …
On appeal (State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1), Gleeson CJ, Gaudron, Gummow and Hayne JJ said:
[51]A determination of native title must comply with the requirements of s 225. In particular, it must state the nature and extent of the native title rights and interests in relation to the determination area. Where, as was the case here in relation to some parts of the claim area, native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.
[52]It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead. Rather, as the form of the Ward claimants' statement of alleged rights might suggest, it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.
(Emphasis in the original in [51], emphasis added in [52] and citation omitted)
On the other hand, in his separate reasons in Ward HCA, Kirby J seemed to deprecate the specification of NTRI by a list of activities:
[570]In native title determinations, I agree that the specification of the rights and interests will be necessary to determine their "relationship" with other interests in the area and possible inconsistencies with those other interests. However, I do not agree that recognition of native title rights and interests should be unduly narrowed for this purpose. The object of the NTA is the recognition of "native title", rather than the provision of a list of activities permitted on, or in relation to, areas of land or waters the subject of a claim to native title. As was stated in Mabo [No 2] and incorporated into the NTA, native title involves the recognition, by the laws of Australia, of the traditional rights and interests of Australia's original peoples.
(Citation omitted)
On the remittal to this Court for further hearing and determination of the underlying applications giving rise to the appeal to the High Court in Ward HCA, the Full Court (Wilcox, North and Weinberg JJ) rejected a submission that s 225(b) was satisfied by the reference in the proposed determination to “non‑exclusive rights to occupy use and enjoy the land and waters in accordance with their traditional laws and customs” – see Attorney‑General of the Northern Territory v Ward [2003] FCAFC 283; (2003) 134 FCR 16. Their Honours said:
[21]We cannot agree with this approach. A statement about the right to ‘occupy, use and enjoy’ (or merely ‘use and enjoy’) in accordance with traditional laws and customs conveys no information as to the nature and extent of the relevant rights and interests. It is equivalent to a statement that the holders of the traditional rights and interests are entitled to exercise their traditional rights and interests. Something more is obviously required. There must be a specification of the content of the relevant rights and interests. That is why the parties included sub-clauses (a) to (e). It is to those sub-clauses that a reader may look in considering the effect of the determination. They must exhaustively indicate the determined incidents of the right to use and enjoy.
(Emphasis added)
In his separate judgment in State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186; (2015) 239 FCR 175, Barker J said:
[128]In Australia, unlike the position in Canada, it has been recognised since Mabo v State of Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 that indigenous title is not a broad beneficial use right in land and waters held by a claimant group, but comprises those particular rights and interests which are shown to be possessed under the traditional laws and customs of the group. See, for example, Brennan J (with whom Mason CJ and McHugh J agreed) at 59‑60 and 70; Deane and Gaudron JJ at 88‑89; and Toohey J at 195.
Later, with reference to s 225 of the NT Act, Barker J said:
[136]On the face of it, by para (b), particular rights and interests found to exist must be determined in order to determine their “nature and extent”; and also, as explained below, for extinguishment purposes, where that is relevant.
(Emphasis added)
As is apparent, the authorities to which I have referred in this review concern the question of the specification of the NTRI themselves by a list of activities, and not the inclusion of a non‑exhaustive list of the activities permitted by the NTRI specified elsewhere in the determination. Furthermore, it can be taken that the present parties have agreed that the NTRI are appropriately specified in the manner set out in cll 9 and 10 of the proposed determinations.
Nevertheless, the review of the statutory provisions, the authorities and the matters to which the parties referred in their submissions leads me to conclude:
(a)it is generally preferable for NTRI in determinations of native title of the present kind to be expressed by reference to the activities which may be conducted as of right on, or in relation to, the land or waters. It is by that means that effect is given to the requirement of s 94A that a determination set out “details” of the matters mentioned in s 225. As already noted, it is commonplace for determinations of native title in contexts like the present to include such lists;
(b)the NT Act does not require a list of activities permitted by the determined NTRI to be included in a determination of native title when the NTRI may be expressed in more general terms but ss 94A and 225 do not preclude the inclusion of such a list; and
(c)formulations of NTRI of the Newcastle Waters kind have considerable advantages and are generally consistent with the approach suggested by the majority in Ward HCA and Ward FCA as being appropriate. The approach set out in the decisions in Ward HCA and Ward FCA to which I have referred remains good law.
I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 19 December 2019
SCHEDULE OF PARTIES
NTD 18 of 2016 Respondents
Fourth Respondent:
MAXIMUS NO. 82 PTY LTD
NTD 6031 of 2002 Respondents
Fourth Respondent:
AMATEUR FISHERMAN’S ASSOCIATION OF THE NORTHERN TERRITORY
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