Hayes v Northern Territory

[1999] FCA 1248

FEDERAL COURT OF AUSTRALIA

Hayes v Northern Territory [1999] FCA 1248

CATCHWORDS

ABORIGINALS AND TORRES STRAIT ISLANDERS – native title – claimant application for determination of native title – identification of native title holders.

ABORIGINALS AND TORRES STRAIT ISLANDERS – native title – identification of traditional laws and customs in relation to land.

ABORIGINALS AND TORRES STRAIT ISLANDERS – native title – extinguishment of native title – previous exclusive possession acts.

ABORIGINALS AND TORRES STRAIT ISLANDERS – native title – extinguishment of native title – reservation or setting aside of land inconsistent with continuation of native title.

ABORIGINALS AND TORRES STRAIT ISLANDERS – native title – Native Title Act
s 47B – occupation of land at time of application.

ABORIGINALS AND TORRES STRAIT ISLANDERS – native title – form of determination of native title.

Aboriginals Ordinance 1918 (NT)
Aboriginal Land Rights (Northern Territory) Act  1976 (Cth)
Airservices Act  1995 (Cth)
Civil Aviation Act  1988 (Cth)
Civil Aviation Legislation Amendment Act  1995 (Cth)
Conservation Commission Act  (NT)
Control of Roads Act (NT)
Control of Waters Ordinance  1938 (NT)
Crown Lands Act  1992 (NT)
Crown Lands Ordinance 1912( NT)
Crown Lands Ordinance  1924 (NT)
Crown Lands Ordinance  1927 (Central Australia)
Crown Lands Ordinance  1931 (NT)
Crown Lands Regulations (NT)
Energy Pipelines Act  1981 (NT)
National Security Act  1939 (Cth)
National Security (General) Regulations (Cth)
Native Title Act 1993 (Cth)
Native Title Amendment Act  1998 (Cth)
Northern Australia Act  1926 (Cth)
Northern Territory Act  1863 (SA)
Northern Territory Aboriginals Act  1910 (SA)
Northern Territory Aboriginal Sacred Sites Act  1989 (NT)
Northern Territory (Administration) Act 1912 (Cth)
Northern Territory Land Act  1872 (SA)
Northern Territory (Self Government) Act  1978 (Cth)

Parks and Wildlife Commission Act (NT)
Real Property Act (NT)
Soil Conservation and Land Utilization Act (NT)
Special Purposes Leases Act (NT)
Territory Parks and Wildlife Conservation Act (NT)
Validation (Native Title) Act (NT)
Validation of Titles and Actions Act 1994 (NT)
Waste Lands Act 1857 (SA)
Waste Lands Amendment Act 1865-1866 (SA)
Water Act 1992 (NT)
Wildlife Conservation and Control Ordinance 1963 (NT)

Mabo and Others v The State of Queensland (No 2) 175 CLR 1 Applied
The Wik Peoples v The State of Queensland 187 CLR 1 Applied
The Queen v Toohey;  ex parte Meneling Station Pty Ltd 158 CLR 327 Applied
Eaton v Yanner (unreported:  Queensland Court of Appeal, 27/8/1998) Referred to
Kruger v The Commonwealth 190 CLR 1 Referred to

MYRA HAYES AND OTHERS v THE NORTHERN TERRITORY OF AUSTRALIA AND OTHERS

DG No 6002 of 1996

OLNEY J
ALICE SPRINGS
9 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG No 6002 of 1996

BETWEEN: 

MYRA HAYES AND OTHERS

  APPLICANTS

AND: 

THE NORTHERN TERRITORY OF AUSTRALIA
 AND OTHERS

  RESPONDENTS

OLNEY J:

The applicants in this matter seek a determination of native title in respect of 166 separate parcels of land in and near Alice Springs.

For reasons set out in the judgment I am about to publish, I have concluded that native title exists in relation to some, but not all of the claimed land.   In my opinion native title exists in relation to either the whole or part of 113 of the 166 areas claimed.   In respect of the remainder, native title has been extinguished.

A major feature of this decision is that I have rejected the Northern Territory government’s submission that pastoral leases granted both before and after the surrender of the Territory to the Commonwealth in 1911 extinguished native title rights and interests.

Based upon the evidence that I have heard I have concluded that the native title rights and interests of the applicants do not give them the right to possession, occupation, use and enjoyment of the determination area to the exclusion of all others. 

The judgment contains rulings on a multitude of other issues raised in the course of the case.   To a large extent those rulings relate to questions which have arisen for the first time as a result of the amendments made to the Native Title Act in 1998 following the Wik decision.

I am also publishing today a draft of the proposed determination.   The parties will have an opportunity to study my judgment before making any comments as to the final form of the determination.   Although the draft is intended to provide a basis for discussion, the final determination will be substantially, but not necessarily exactly, in the form of the draft.

For the purpose of complying with s 56 of the Native Title Act, I propose to request that Myra Hayes Ampetyane, as a representative of the persons who are to be included in the determination as the native title holders, to indicate whether it is intended to have the native title held in trust.   If this is the intention of the native title holders, Ms Hayes must within two months from today nominate in writing to the Federal Court a prescribed body corporate to be trustee of the native title and include with the nomination the written consent of the body corporate.  

For the purpose of facilitating the finalisation of this proceeding I propose to direct the parties to confer with a view to reaching agreement as to the form of the determination which of course must be consistent with the findings contained in my judgment.   If agreement can be reached by this process a minute of the agreed form of determination is to be filed by 3 December 1999, otherwise each party may file and serve a minute of its proposals.   The Court will reconvene on 9 December 1999 in Darwin for the purpose of making the determination of native title and any other orders that may be appropriate.    All parties have liberty to apply upon 10 days notice.

I now publish my reasons for judgment, a draft minute of the proposed determination of native title, a formal request under s 56 and the Court’s further directions.

Alice Springs,
9 September 1999.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG No 6002 of 1996

BETWEEN: 

MYRA HAYES AND OTHERS

APPLICANTS

AND: 

THE NORTHERN TERRITORY OF AUSTRALIA AND OTHERS

RESPONDENTS

JUDGE:	OLNEY J
DATE:	9 SEPTEMBER 1999
PLACE:	ALICE SPRINGS

REQUEST PURSUANT TO S 56 OF THE NATIVE TITLE ACT 1993

THE COURT REQUESTS –

Ms Myra Hayes Ampetyane, as a representative of the persons the Court proposes to include in its determination of native title as the native title holders (the common law holders), to indicate whether the common law holders intend to have the native held in trust by:

i)nominating in writing given to the Federal Court within 2 months from the date of this request, a prescribed body corporate to be trustee of the native title;  and

ii)including with the nomination the written consent of the body corporate.

[NOTE:Section 56(2) of the Native Title Act provides that if the common law holders give the nomination within the period specified the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders;  and if the common law holders do not give the nomination within that period, the Federal Court must determine that the rights and interests are to be held by the common law holders].

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG No 6002 of   1996

BETWEEN:	MYRA HAYES AND OTHERS APPLICANTS
AND:	THE NORTHERN TERRITORY OF AUSTRALIA AND OTHERS RESPONDENTS
JUDGE:		OLNEY J
DATE OF ORDER:		9 SEPTEMBER 1999
WHERE MADE:		ALICE SPRINGS

THE COURT DIRECTS THAT:

1. The parties confer with a view to reaching agreement as to the final form of a determination of native title consistent with the Court’s findings as expressed in its reasons for judgment published on 9 September 1999.

1. In the event that the parties agree upon the form of the determination, a minute of such agreed form signed by the solicitors for each party is to be filed by 3 December 1999.

1. In the event that the parties do not agree upon the form of the determination, each party may file and serve by 3 December 1999 a minute of its proposal as to the form of the determination.

1. A party seeking any other orders may file and serve a minute of the proposed orders by 3 December 1999.

1. The further hearing of the proceeding is adjourned until 10.15 am on 9 December 1999 at the Federal Court in Darwin.

1. All parties have general liberty to apply on 10 days notice in writing.

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 No 6002 of   1996

BETWEEN:	MYRA HAYES AND OTHERS APPLICANTS
AND:	THE NORTHERN TERRITORY OF AUSTRALIA AND OTHERS RESPONDENTS
JUDGE:		OLNEY J
DATE OF ORDER:
WHERE MADE:

DRAFT MINUTE OF PROPOSED DETERMINATION OF NATIVE TITLE

THE COURT DETERMINES THAT:

1. Native title exists in relation to the land and waters more particularly described in the Schedule hereto (the determination area).

1. The persons who hold the common or group rights comprising the native title (the common law holders) are those Aboriginals who are descended from the original Arrernte inhabitants of the Mparntwe, Antulye and Irlpme estates who are recognised by the respective apmereke-artweye  and  kwertengerle of those estates under the traditional laws acknowledged and the traditional customs observed by them as having communal, group or individual rights and interests in relation to such estates.

1. The nature and extent of the native title rights and interests in relation to the determination area are, subject to the rights of others validly granted by the Crown pursuant to statute and to any valid executive or legislative act affecting the native title of the common law holders, as follows:

   a)the right to possession, occupation, use and enjoyment of the land and waters of the determination area;

   b)the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates within the determination area;

   c)the right to take, use and enjoy the natural resources found on or within the land and waters of the determination area;

d)the right to make decisions about the use of the land and waters of their respective estates within the determination;

e)the right to protect places and areas of importance in or on the land and waters within the determination area;

f)the right to manage the spiritual forces and to safeguard the cultural knowledge associated with the land and waters of their respective estates within the determination area.

1. The nature and extent of other interests in relation to the determination area are such rights and interests validly granted by the Crown pursuant to statute or by any valid executive or legislative act affecting the native title of the common law holders including the rights and interests of members of the public to the use and enjoyment of the determination area according to law.

1. To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph (4) and the rights conferred by the other interests referred to in paragraph (5), the native title rights and interests must yield to such other rights.

1. The native title rights and interests of the common law holders do not confer possession, occupation, use and enjoyment of the land and waters of the determination area on the common law holders to the exclusion of all others.

1. The rights and interests from time to time comprising the native title are to be held by ……………………………

THE SCHEDULE

ALL THOSE areas of land and waters in the Northern Territory of Australia being:

a)the whole of each of the areas referred to in the Appendix to the reasons for judgment published on 9 September 1999 in Federal Court of Australia proceeding DG 6002 of 1996 and identified as areas 2, 5, 6, 9 to 22 (inclusive), 24, 26, 32, 38, 39, 42, 43, 45, 46, 51, 52, 55, 57 to 62 (inclusive), 70, 72, 74 to 76 (inclusive), 80, 83, 88 to 90 (inclusive), 92, 94, 95, 98, 101 to 103 (inclusive), 105, 109 to 111 (inclusive), 116, 117, 120 to 140 (inclusive), 142 to 144 (inclusive), 146 to 155 (inclusive), 161 to 163 (inclusive) and 165 to 168 (inclusive); and

b)those parts of the areas referred to in the said Appendix and identified as areas 25, 28, 33, 36, 40, 49, 54, 71, 87, 106, 108, 112, 118, 119, 141, 145 and 156 which have not been the subject of a previous exclusive possession act (as defined in s 23B of Native Title Act 1993) or a category A intermediate period act (as defined in s 232B of the said Act);

EXCLUDING any land or waters on which a public work (as defined in s 253 of the said Act) is or has been constructed or established and any adjacent land or waters the use of which is or was necessary for or incidental to, the construction, establishment or operation of the work.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG No 6002 of 1996

BETWEEN: 

MYRA HAYES AND OTHERS

APPLICANTS

AND: 

THE NORTHERN TERRITORY OF AUSTRALIA AND OTHERS

RESPONDENTS

JUDGE:	OLNEY J
DATE:	9 SEPTEMBER 1999
PLACE:	ALICE SPRINGS

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for a determination of native title in relation to land and waters in and near Alice Springs in the Northern Territory.

The applicants are:

Thomas Stevens Peltharre

Robert Francis Stuart Kngwarraye
  Robert Liddle Kemarre
  Augustine Rice Ampetyane
  Wenten Rubuntja Pengarte
  Patrick Peter Stirling Kemarre
  Veronica Golder (Campbell) Pengarte
  Myra Hayes Ampetyane
  Rosie Ferber Ampetyane
  Doris Stuart Renehan Kngwarraye
  Stewart Oliver Angale

Clem Ellis Pengarte

Phylis Blanche Campbell-Kenny Ampetyane

Jean Stuart Kemarre

The application was made to the National Native Title Tribunal (the Tribunal) on 31 August 1994 pursuant to s 13(1) and s 61(1) of the Native Title Act 1993 (the Act) and was accepted by the Native Title Registrar on 12 April 1995. The Tribunal made no determination under ss 70, 71 or 73 of the Act and on 21 May 1996 the Native Title Registrar lodged the application with the Federal Court for decision.

By virtue of s 84(1) of the Act, at the time the application was referred to the Court, the parties to the proceeding other than the applicants were:

Alice Springs Town Council,

Aboriginal Areas Protection Authority,
Solicitor for the Northern Territory and
Conservation Land Corporation.

1. The Aboriginal Areas Protection Authority advised the Court by letter on 28 June 1996 that it did not wish to appear as a party to the proceeding and was subsequently removed as a party. 

At the first directions hearing on 4 July 1996 the Northern Territory of Australia was substituted as a party in place of the Solicitor for the Northern Territory. 

The Conservation Land Corporation appeared at the first directions hearing but did not otherwise take any part in the proceeding nor did the Alice Springs Town Council.

The Commonwealth of Australia was represented at the first directions hearing and sought to be joined as a party but did not press the matter at that stage.   Subsequently, the Commonwealth made a formal application to be joined but before its motion came before the Court it reached an accommodation with the applicants and did not proceed further with its application.  

1. The Attorney-General for the Commonwealth was given leave to intervene on 10 June 1997 when a question was raised concerning the failure of the Native Title Registrar to give notice of the application to a number of persons and companies having mining interests in the claimed land.   Section 66(2)(a)(v) of the Act required that notice be given to

   any person who holds a proprietary interest in any of the area covered by the application, being an interest that is registered in a register of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory.

   After hearing submissions from counsel for the Attorney-General and the other parties I ruled that the proceeding was not invalidated by the failure by the Native Title Registrar to give notice to eight individuals and corporations shown to have a registered proprietary interest in various parts of the claimed land, but directed that the District Registrar give notice of the proceedings to the holders of such interests and provide them with an opportunity to be heard.  None of those concerned made any response.

1. On 4 July 1996 orders were also made, inter alia, for the filing and exchange of statements of facts, issues and contentions and other material in relation to the application.   The proceeding was set down for hearing at Alice Springs commencing on 1 July 1997.   Further directions were given from time to time as required.

THE APPLICATION

1. In their application the applicants identify “other persons with whom the applicants claim to hold title” as follows:

   The applicants are family representatives who hold native title along with all other members of their families.   The land the subject of this application is primarily associated with Central Arrernte people although other Arrernte people also have traditional connections to the area.   The applicant families encompass the interests of both Central Arrernte and other Arrernte people.   For the purposes of this application these families are collectively termed the Mbantuarinya Arrernte.

Subsequently, the landholding groups were described as the members of Mparntwe, Antulye and Irlpme estate groups.  In these reasons the persons on whose behalf the application is made are collectively referred to as “the claimant groups”.

1. The area of land and waters covered by the application is described in the application by reference to attached maps which identify 166 separate parcels of land and waters.   It is said that all land and inland waters claimed are either vacant Crown land, Crown land subject to various reserves, Crown land subject to various leases and Crown land ‘set aside’ for various purposes and that none of the land or waters claimed is held under freehold title or held under a current pastoral lease.   The appendix to these reasons sets out, inter alia, particulars of each separate parcel by reference to its Northern Territory portion or lot number.   The total area of land and waters to which the application relates will be referred to as “the claimed land”.   Each separate parcel will be referred to as an area and identified by the relevant area number shown in the appendix.

2. By letter dated 17 August 1995 addressed to the Native Title Registrar (exhibit A 2.1) the Central Land Council, acting on behalf of the applicants, made a number of relatively  minor amendments to the application.   The full text of the letter is as follows:

   Re:Claimant Native Title Determination Application No Dc 94/2

I refer to the above Application and advise that the Central Land Council has received instructions from the Mbantuarinya/Arrernte Claimants to amend Application No DC 94/2 as follows:

1.Parcel of land marked No 66 (Lot 5648) in the Application is withdrawn from the Application.

2.The native title rights claimed over parcels of land numbered in the Application:

a)77, 78 and 79 (Lots 7384, 7385 and 7386);  and

b)84 and 85 (Lots 7417 and 7418),

are such that the claimed rights will not interfere with the current usage of that land as unlined storm water channelling.

3.The native title rights claimed over land parcels numbered 81, 82 and 104 (Lots 7411, 7412 and 8054) in the Application are such that the claimed rights will not interfere with the two existing retardation dams on that land.

4.The extent of the land which is subject to the Application in land parcel 33 (Lot 2683), being Anzac High School is limited to that area of land which is satisfactory to the Mbantuarinya/Arrernte Claimants to ensure the protection of the registered sacred site situated on that land.

5.The extent of the land which is subject to the Application in land parcel 36 (Lot 5651), being Sadadeen Primary School, is limited to that area of land which is satisfactory to the Mbantuarinya/Arrernte Claimants to ensure the protection of the registered sacred site situated on that land.

Would you kindly acknowledge amendment of the Application in the above terms.

The substance of these amendments is noted in the particulars set out in the appendix.

In a further letter to the Native Title Registrar dated 30 November 1995 (exhibit A 2.2) the CLC made two further amendments in order to rectify minor ambiguities.   Those amendments are reflected in the particulars set out in the appendix.

1. The determination sought by the applicants in the form expressed in paragraph 12.3 of their written submission dated 12 June 1998 is as follows:

   (a)native title exists in the Mparntwe estate, the Antulye estate and the Irlpme estate, being the estates in which the areas of land and waters the subject of the application are located;

   (b)the native title to the land and waters the subject of the application is held by the members of the Mparntwe estate group, the Antulye estate group, and the Irlpme estate group;

   (c)the native title rights and interests confer possession, occupation, use and enjoyment of the land and waters the subject of the application on the members of the three estate groups to the exclusion of all others, subject to the rights of others validly granted by the Crown pursuant to statute to possess, occupy, use or enjoy the land or waters;

   (d)the rights and interests of the members of the three estate groups that are of importance are:

   (i)the right to possession, occupation, use and enjoyment of the land and waters of their estates that are the subject of the application, subject to the rights of others validly granted by the Crown pursuant to statute to possess, occupy, use or enjoy the land or waters;

   (ii)the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates.

   (e)alternatively, the native title rights and interests of the members of the three estate groups that are of importance are:

   (i)the right and interest of possession, occupation, use and enjoyment of the land and waters of their respective estates;

   (ii)the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates;

   (iii)the right and interest of ownership of the natural resources of the land and waters of their respective estates, and the right to use and enjoy those resources;

   (iv)the right to give or refuse permission to non-members of the estate groups to occupy, or enjoy the land and waters of the respective estates, or to use and enjoy the natural resources of that land and waters;

   (v)the right to make decisions about the use of the land and waters of their respective estates;

   (vi)the right to protect places and areas of importance in the land and waters of the respective estates;

   (vii)the right to manage the spiritual forces and to safeguard the cultural knowledge associated with the land and waters of the respective estates.

   This form of determination was put forward “by way of preliminary submission” at a time when amendments to the Native Title Act were actively under consideration by the Commonwealth Parliament and reflects the provisions of s 225 of the Act as it then applied. A new s 225 was substituted by the Native Title Amendment Act 1998. The Court is now not required to identify the native title rights and interests that it considers “to be of importance”, but rather it is required to determine “the nature and extent of the native title rights and interests”. Paragraph 24 of Schedule 5 to the amending Act provides that the substituted form of s 225 is to apply to all determinations made after the commencement of the amending Act, regardless of when any native title determination application was made. In these circumstances the new form of s 225 is applicable to this proceeding. As no further submission has been made since the amended section came into operation, it is presumed that for the purposes of s 225(b) (as amended) the applicants seek a determination that the nature and extent of their native title rights and interests in relation to the claimed land encompass all of the rights and interests asserted in paragraphs (d) and (e) of the proposed determination as expressed in paragraph 12.3 of the submission of 12 June 1998.

THE TRIAL

1. The trial was conducted at Alice Springs and occupied a total of 35 hearing days.  It commenced on 1 July 1997 and concluded on 9 February 1999.   The Northern Territory was the only party other than the applicants to participate in the trial and in these reasons is referred to as the respondent.  The applicants called 50 witnesses and the respondent called 5.  Numerous exhibits, including a number of uncontested witness statements, were tendered and admitted into evidence.   A number of sites were visited in the course of the hearing at the request of both the applicants and the respondent.  Although there were no formal pleadings the issues were initially defined by the exchange of statements of facts, issues and contentions.   The 1998 amendments raised further issues which were addressed at a special sitting of the Court convened after the new provisions took effect.

NATIVE TITLE

1. In Mabo v Queensland (No 2) 175 CLR 1 (Mabo No 2), the concept of what is now generally understood as “native title” was referred to by each of the majority Judges.  Mason CJ and McHugh J referred (at p 15) to the recognition by the common law of Australia of “a form of native title which … reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional land”.   Brennan J (whose reasons for judgment Mason CJ and McHugh J expressly adopted) said (at p 57):

   The term “native title” conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.

Deane and Gaudron JJ used the term “common law native title” to refer generally  to what they described as “that special kind of title” which 

… must, in the event of dispute between those entitled to it, be determined by reference to the pre-existing native law or custom (pp 87-88).

In dealing with the case put by the plaintiffs Toohey J applied the term “native title” to “the interests (the plaintiffs’) predecessors enjoyed in the Islands prior to annexation …” (p 176) and at p 187 he said:

… the traditional title has a common law existence because the common law recognises the survival of traditional interests and operates to protect them.

The Native Title Act 1993 was the Commonwealth Parliament’s response to the decision in Mabo No 2.   In the preamble it is recited, inter alia, that the High Court has:

held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands.

The principal object of the Act is expressed, in s 3(a), to be:

to provide for the recognition and protection of native title.

The statutory definition of “native title” largely adopts the language used in Mabo  No 2.   Subsections (1) and (2) of s 223 provide:

223 (1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders;  and

(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters;  and

(c)the rights and interests are recognised by the common law of Australia.

(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

The resolution of an application for a determination of native title will initially require the Court to inquire into and make findings concerning:

•the identity of the claimant group and its relationship with the indigenous inhabitants of the land in question;

•the geographical location to the traditional lands of the claimant group;

•the nature of the traditional laws and customs of the claimant group in relation to their traditional land.

In the event that the claimant group establishes the existence of traditional rights and interests in relation to the claimed land, it will then be necessary to consider the extent, if any, to which those rights and interests are recognised by the common law.

ARRERNTE SOCIAL ORGANISATION

1. The paragraphs which follow contain, in summary form, a description of some aspects of the social organisation and cultural traditions of the members of the claimant groups.  What is written is based upon a report prepared by Dr John Morton, a consultant anthropologist engaged by the applicants.  The report was tendered in evidence (exhibit A3) without objection.  Its contents are not controversial and accordingly these paragraphs represent a commentary on undisputed aspects of the evidence of an expert witness and as such provide a context in which the evidence of the Aboriginal witnesses can be more readily understood.  To the extent that assertions of fact are made, they represent Dr Morton’s evidence which is unchallenged;  and to the extent that opinions are expressed, they are Dr Morton’s and stand uncontradicted.  The respondent did not call any expert evidence.

1. It is the applicants’ case that since time immemorial the area in and around Alice Springs has been occupied by the Arrernte people under an orderly and mutually recognised system of governance and laws by which they live and define their relationship with the land and their environment.  The traditional country of the Arrernte extends far beyond the area affected by the present application which is made on behalf of specific Arrernte groups whose estates include various portions of the claimed land.  The estate groups in question are the Mparntwe, Antulye and Irlpme.  In terms of the proportion of the claimed land associated with the particular estate groups, Mparntwe is the dominant group.  Large parts of the Antulye and Irlpme estates lie outside the area of the claim.  At p 5 of his report, under the heading “A Human Landscape” Dr Morton says:

   Arrernte land tenure involves a form of identification between tracts of country and particular groups of people.  Any adequate description of Arrernte interests in land needs to describe how such identification takes place as an orderly, but not necessarily predictable, political, legal and cultural process.  Arrernte society, in common with all other Aboriginal societies, is framed in terms of families.  Moreover, there is a great deal of overlap between the ways people are described as related to each other and a more general notion of relationship.  For example, kinship terms are used to describe the land itself.  This usage is extensive.  Land, as the embodiment of the deeds of past generations, is literally related to those who own it. 

1. Connection to land, and rights and interests in land are to a large degree subsumed under the Arrernte concept altyerre, a complex word which has several different but related meanings.  It can be translated as “the Dreaming, Dreamtime:  the creation of the world and the things in it, and its external existence”.  Dr Morton says (at p 8)

   The course of creation consists of the spontaneous awakening and movement of ancestral figures, beings with supernatural and human-like qualities and typically intimately associated with specific types of animals, plants or other natural phenomena (totems).  Hence the totemic ancestors might be ‘caterpillar people’, ‘dog people’, ‘corkwood honey people’ or ‘water people’, although some ancestral figures, known by names like ‘two women’, ‘young boy’ or ‘dancing women’, appear to be without such associations, possibly remaining exclusively human in character.  Totemic ancestors are larger than life and performed marvellous feats out of which the landscape came into being, with its features regarded as consubstantial with ancestral bodies – hence the fundamental identification of hills, gaps, soakages, trees and other landscape features as ancestral beings.  While certain understandings of this identification are based on an idea of ancestral creation synonymous with the most prosaic sense of ‘making’, detailed examination of the concepts involved reveals that ancestors also make the world in a more metaphysical sense, naming its features and causing them to be known, imbued with emotional significance and bound to the ancestor’s very sense of existence.

and (at p 9)

Apart from creating the landscape itself and the forms of art associated with it, the ancestors also brought into existence all the other features of contemporary human existence – hunting and gathering, the making and use of tools, rules of kinship, language and dialect variation, and so on.  Collectively, and in conjunction with totemic beliefs and ceremonial action, all these features may be glossed in English as the Law.  While the Law is often narrowly defined in terms of ceremonial activity, it may also be construed as a more general system of rules and regulations through which people define their rights and interests.  This system is ultimately bestowed by the first beings who came to life in the Dreaming.  In that sense, The Dreaming is basic to Arrernte culture and world views, and might best be captured in English by a metaphorical notion like ‘ground’.  It is common for people to describe the ancestors and their powers as being deep in the ground.  People may also refer to Dreamings in terms of their ‘roots’ in the country (even occasionally mixing the metaphor with the idea that these roots support a family tree).

1. The Arrernte word apmere has the board sense of “place” but may, in some contexts, refer to such terms as “site”, “camp”, “country” or “home”.  Dr Morton says (at p 10):

   The ancestors created the world, so all the features of the landscape are now seen as apmere (sites) which mark their presence.  This is because all geographical traces, through their totemic creation, are spiritually bound to the embodiment of an ancestor.  However, some of these places are more prominent than others.  Strehlow (1947:139-53, 1965:139-41) writes of some of these places as apmere akwetethe, which he translates as ‘eternal home’ – the place where an ancestor desires to be for all time.  Some sites become focal camping places in the contemporary landscape, or come to define much larger areas of country by lending them their names.  Such places are, in effect, centres or ‘capitals’ of their countries, although the same areas may now also be known by non-indigenous landmarks, such as town and cattle station homesteads.  For example, the name Antulye refers to a particular sacred site, to an associated country area and family group … and was also adopted as the name of the cattle station to the east of Alice Springs (‘Undoolya’).

   Such larger areas of country (also called apmere) are generally referred to by anthropologists as estates.  Estates consist of a network of Dreaming tracks and a mosaic of specific sites marking the local deeds of ancestral figures.  Some sites are ameke-ameke;  that is, particularly powerful and dangerous in a supernatural sense.  Such places must be approached with care;  others must be avoided.  However, avoiding is only the negative side of a positive injunction to carefully manage the power concentrated in certain places.  Most sites are not ameke-ameke.  They may be regular camping places or notable landmarks which are not regarded as especially dangerous.  As a living landscape, an estate consists of a network of sites with different types of significance.

   Responsibility for site protection in general, and for careful management of the power of certain sites in particular, typically falls upon senior adults.  In some cases the responsibility is gender specific.  It is also held on behalf of all others who are members of the landholding group.  To understand the composition of such groups, it is first necessary to know something about Arrernte kinship.

2. An estate is always associated with, and owned by, a group of living people who have established connections to the original ancestors in a variety of ways. 

   All Arrernte people in principle belong to just one of the eight social categories (subsections) known as kemarre, purrurle, penangke, pengarte, angale, ampetyane, kngwarraye and peltharre.  The system of skin allocation is sociocentric.  This means that skin names are allocated to people like personal names and that they can largely (though not exclusively) be used from any point of reference.

   The system of skin names meshes with the relationship terminology, such that, from the point of view of any one person, particular relatives will usually be of the same skin.  For example, if one is a kemarre man, one’s fathers should all be perrurle; one’s mothers should all be penangke; one’s wife or potential wives should all be peltharre; one’s sons and daughters should all be perrurle; one’s sister’s childrens should all be kngwarraye; and so on.  The main way of establishing the correct nature of a relationship between strangers is to simply ‘read off’ an appropriate kin term through knowledge of a person’s section or subsection (although relative age may also have to be taken into account).  (Morton p 12)

   Not all marriages conform precisely with these rules and when, as sometimes happens, couples do not marry according to the first order rules, their marriage may be called ‘two way’, ‘half-right’ or ‘wrong’ and their offspring may be known by two skin names, one derived by association with the father, the other from the mother.

1. Anthropologists sometimes refer to the skin system in terms of moieties.  In Arrernte society one belongs to the moiety of one’s father and his siblings.  Particular pairs of skin names are grouped together as ‘patricouples’.  In the sub-section system, one patrimoiety is association with the patricouples kemarre/perrurle and angale/ampetyane, while the other is associated with penangke/pengarle and kngwarraye/peltharre.  Arrernte people also recognise in the skin system a pair of generation moieties known reciprocally as nyurrpe.  An Arrernte person belongs to the group of people of his or her own generation and all others who are an even number of generations away.  The term nyurrpe refers to people in the generations immediately above or below one’s own, as well as to others who are an odd number of generations away.  A person is in the same generation group as his or her siblings, cousins, grandparents and grandchildren but call his other parents, aunts, uncles, children, nieces and nephews nyurrpe.

1. Arrernte people employ a range of kin terms to refer to particular relations.  These terms are egocentric in that the relationship expressed by a term is always relative to the speaker or some other point of reference;  e.g. ‘my mother’, ‘her granny’, ‘that man’s sister’ etc.  Anthropologists conventionally call the system classificatory.  The skin terms cover a wide range of relatives who are regarded as equivalent; e.g. one’s mother’s sister is called by the same term (meye) as one uses for one’s mother.  While Arrernte classifications may conflate several relationships which English does not, they also sometimes distinguish relatives from each other where English conflates them.  For example, there are four different grandparental terms in Arrernte – arrenge (father’s father), aperle (father’s mother), atyemeye (mother’s father), ipmenhe (mother’s mother).  Such distinctions reflect certain social distinctions between different sides of a person’s family.

1. Whilst what in English is called ‘biological relationships’ are understood by Arrernte people as one kind of recognised relationship, so too is adoption which is a normal part of Arrernte kinship practice and is critical in understanding the position of many children of mixed-race parentage who have been incorporated in Arrernte society.  T.G.H. Strehlow (1969:109) wrote that any woman who was abandoned by her non-Aboriginal partner and became the spouse of an Aboriginal man could expect the man to

   become a perfect foster-father to her children, always looking after them as though they were his very own.  For in the Aranda-speaking area of the Centre … any man who lived with a woman was looked on as her properly married husband; and he was expected to regard and treat every one of his wife’s children, irrespective of their actual parentage, as his own progeny.  (quoted at Morton p 22)

2. There are different pathways by which people may claim rights in estates.  One is through patrifiliation and patrilineal descent.  (Patrifiliation refers to being associated with one’s father;  patrilineal descent refers to a principle of inheritance through the male line).  Dr Morton says (at p 24):

   An Arrernte estate may be known as peltharre/kngwarraye country, penangke/pengarte country, angale/ampetyane country or perrurle/kemare country.  For example, the town of Alice Springs contains part of three estates designated in this way:  Mparntwe, which is peltharre/kngwarraye;  Antulye, which is penangke/pengarte; and Irlpme, which is angale/ampetyane.  In general terms, people might say, for example, that peltharre/kngwarraye country does not extend beyond this creek or that hill:  or they may say that penangke/pengarte country extends only so far along one of the longer Dreaming tracks, at which point responsibility for the Dreaming is handed over the another group, possibly of another patricouple.  Whilst there is not necessarily complete consensus in the landholding group concerning the exact location or limits of estate boundaries, it is obvious that such estates are defined by law and that they are tied to some notion of patrifiliation or patrilineal descent coded in the use of subsection terms.

   Members of patrilineal descent groups are often called apmereke-artweye, a term which Dr Morton describes (at p 25):

   The word apmereke-artweye is derived from the words apmere meaning place, and artweye, which has a range of meanings covering concepts of ownership, belonging and relationship …  Apmereke-artweye are holders of an estate and have particular responsibilities for looking after it and authorising what goes on there, although this is always done in terms of ancestral precedent.  This implies a relationship between current apmereke-artweye, the ancestors themselves and the landscape in which they have come to be embodied.  People who are apmereke-artweye refer to the estate as their own country … Apmereke-artweye have most often inherited their estate from their father and father’s father or by some corresponding agnatic link (e.g., through their father’s brother or father’s father’s brothers).  Ultimately, these patrilineal links go back to the original ancestors themselves, although there may not necessarily be a hard and fast distinction drawn between a human ancestor and an ancestral totemic figure.  For example, both might be called arrenge (father’s father).  This underscores the identification of actual relatives with the ancestral figures who created the country and are still embodied there.  However, it is important to note that, while the status of apmereke-artweye is strongly associated with patrilineal descent, in itself the term does not literally suggest patrilineal connection to an estate.  Rather, it simply stresses possession and belonging.

3. While apmereke-artweye  are often designated as owners of an estate, they take care of it in partnership with others known as kwertengerle.  The English term “boss” is sometimes applied to apmereke-artweye but may also be used for kwertengerle.  Other English terms used to convey the meaning of kwertengerle include ‘manager’, ‘boundary rider’, ‘policeman’ ‘spokesman’ ‘prime minister’ and ‘fixer’.  Dr Morton says (at pp 26-7):

   Kwertengerle may intimately know the Dreamings for an estate and take the lead in discussions about it or during visits to sites.  While apmereke-artweye  have notional seniority, they often stay ‘behind’ kwertengerle in a gesture of modesty, since it is the role of kwertengerle to check that apmereke-artweye look after an estate according to the dictates of the law.  Kwertengerle are involved in ceremonial activity with apmereke-artweye and hold the Dreamings in a similar, but not identical, way to their partners.  Their sense of entitlement is as strong as that of apmereke-artweye and their rights and interests are well defined.
   …
   One’s kwertengerle are often drawn from the opposite patrimoiety, although the role can be undertaken by others.  While the apmereke-artweye link to an estate emphasises continuous patrilineal descent, kwertengerle are primarily thought of as matrifiliates – the children of women patrilineally connected to the estate.  The role may in turn be acquired by those children’s own children.  So, just as apmereke-artweye have strong descent ties to the estate of their arrenge (father’s father), others have kwertengerle responsibilities for those estates when related to them through their atyemeye (mothers’ fathers), aperle (fathers’ mothers) and ipmenhe (mother’s mothers).

   While a person’s connections to, and rights in, all four grandparental estates are held simultaneously, those connections tend to be more or less ranked in people’s minds.  One belongs first to the estate of one’s father’s father;  second to the estate of one’s mother’s father;  third to the estate of one’s father’s mother; and fourth to the estate of one’s mother’s mother.  However, there may be exceptions to this ranking system based on factors such as knowledge, seniority and long term residence.

4. The concept of descent is conventionally understood to include genetic connection or something comparable, e.g. adoption, but descent is not the only factor by which an interest in an estate may be acquired.  There is also the important process known as ‘conception’.  In this context conception does not refer to the moment of fertilisation, but rather to what is believed to be the entry of an ancestral spirit into a women to animate the child with which she is already pregnant.  This occurs some months into the pregnancy and may be indicated by the child’s quickening in the womb.  The animating force is one of the many spiritual ‘fragments’ left behind in the landscape by a totemic ancestor.  Conception links a person not only with a Dreaming and its track, but also with a place on the track where a particular ancestral event took place.  This place is often referred to as the ‘conception site’.  A person retains a life-long association with his of her conception site and Dreaming.  On this topic Dr Morton says (at p 28):

   The kind of ancestral connection, and thus the nature of rights and responsibilities to land, established through conception depend largely on the following factors:  the place where it happened (and therefore the Dreaming tracks which are nearby); the kinds of events which may have accompanied it (like a vision, a peculiar reaction to food, or some strange behaviour by an animal); and the intentions of senior kin (who may, for example, wish to maximise children’s life chances by associating them with prominent ancestral figures).

   and (at p 30):

Conception, then, can be a very significant feature of rights and interests in land, since it is possible to make a strong claim on land associated with one’s conception site.  However, these rights and interests do not stand alone.  A claim based on a conception site must be reasonably consistent with other connections to the estate through associations with the estate’s apmereke-artweye and kwertengerle.  The success of conception claims depends on support given by members of the landholding group (apmereke-artweye and kwertengerle) who know the Dreamings of the estate most closely.  Conception might support anything from full membership of the landholding group, including the ability to pass on rights and responsibilities to one’s children and grandchildren, to more limited recognition, like that of the right to camp on an estate.  Such limited recognition does not stem from holding the estate in question.  In such cases there is public recognition that a person really belongs elsewhere (‘father’s country’, ‘mother’s country’, etc.).

1. It follows from what has been said about connection to a Dreaming through conception that not everyone with an interest in an estate can be regarded as a landholder of that estate.  A similar situation applies in relation to people who are connected to an estate by a Dreaming track which crosses the estate.  Sometimes these connections are relatively strong but the fact that a Dreaming crosses an estate does not necessarily mean the landholders of that estate are most closely connected to the Dreaming which may be more closely associated with a group, or groups, further away.  Sometimes a Dreaming which travels over a particular country has no local sites.  In such a case it may be referred to as ‘just travelling’ and the lack of traces of it on the landscape might be explained by descriptions of the ancestors travelling under the ground or high in the sky.  Dr Morton says (at p 31):

   People connected with Dreaming lines to an estate can and do assert rights and interests in that estate, but, as with conception, the degree to which such rights and interests are realised depends on negotiation with members of the landholding group (apmereke-artweye  and kwertengerle).  In other words, interests in estates through Dreaming connections do not, in themselves, confer membership of landholding groups.

   In many cases, one will hear Arrernte people say that far flung Dreaming connections merely represent an ‘outside’ interest, perhaps described as ‘only Dreaming’.  The point may be underlined by stating where a person invoking such connections might really belong:  ‘He belongs at Tempe Downs’; ‘That mob have got to go back to Harts Range’; ‘Her father comes from the Waterhouse Range; that’s her country’.  Clearly, then, outside interests can remain just that and are the outcome of the landholding group’s right to more or less exclude people from local affairs.  Nevertheless, these ‘outside’ interests are a significant aspect of Arrernte law.

   Depending on relationships negotiated with the landholders, a person with a relatively distant Dreaming connection may come to be recognised as an import kwertengerle for an estate.

2. Knowledge of Dreamings is generally distributed throughout a local population; it is largely open and may extend some way beyond the landholding group.  Dreamings also have sacred objects, songs, designs (‘paint’) and dramatic acts associated with them, which the ancestors have left behind for their heirs to inherit.  Some aspects of this inheritance is public, openly held and celebrated by men and women, and taught to children in the Arrernte community.  Other aspects are restricted to either women or men.  While both men and women have their own ‘sides’ in relation to this knowledge, they speak for their land as a coherent group of senior landholding group as a whole.  They are obliged to reproduce their own structures of authority and teach younger members of the groups as considered appropriate.  The younger members of the group thus progressively acquire this knowledge and hold it for future generations.

1. Particular members of an estate take special responsibilities for Dreamings with which they are most closely connected by descent or spiritual affiliation.  Although members of an estate have a mutual focus on a main site, the site may be connected most closely with a particular person, generally the most senior leader and spokesperson for the group.  Ideally, seniority arises from primogeniture.  Thus most senior apmereke-artweye or kwertengerle should be the eldest in a sibling set, but this may not necessarily be so, depending upon the personal or political histories of the people involved.  Other senior people in the group may have particular connections with other sites on the estate, with the result that estates can be pictured as being divided into smaller areas of influence associated with particular Dreamings and site complexes.  The coherence of an estate depends upon the coherence of its apmereke-artweye and kwertengerle.  In situations of demographic and/or political pressure the coherence of a larger descent group, comprising many lineages, can be broken, with the estate fracturing or altering its configuration as a result.  On the other hand, landholding groups may also coalesce if the circumstances are right.  For example,  if the apmereke-artweye are of the same skins, adjacent groups may become involved in ceremonial and other co-operation and come to view themselves as one family belong to a single estate.

1. At p 37 of his report Dr Morton provides the following summary:

   Arrernte laws and customs relating to rights and interests in land in Alice Springs and nearby areas can be summarised as follows:

   ·People and land are integral to each other.

   ·The relationship between people and land is grounded in the Dreaming.

   ·The Dreaming comprises narratives which define particular areas of the land (estates).  Arrernte people organise their relationships with each other and to land in terms of ‘kinship’, described as: a) subsections; b) moieties; and c) kin relatedness (consanguinity and affinity).

   ·Estates are associated with subsection patricouples and people patrilineally connected to the land (apmereke-artweye).

   ·Apmereke-artweye are in partnership with kwertengerle.  The latter are typically related to an estate and its patriline through matrifiliation and cognatic descent.  This partnership defines the general character of a group holding an estate.

   ·People with conception ties to an estate may be recognised as members of the landholding group, but this depends on acceptance by senior people in the group and the subsequent transfer of requisite knowledge.

   ·People with Dreaming connections to an estate have outside interests in that estate, but factors such as long-term residence, possession of knowledge and involvement in the affairs of the estate can convert outside interests into close kwertengerle ties with the landholding group.

   ·Landholding groups have an authority structure defined in terms of age, gender and the distribution of knowledge.  Senior landholders of an estate represent all others in their group.

   ·The landholding group as a whole is subject to lawful transformation in terms of both its internal structure and its position in a larger regional framework.

   THE RESPONDENT’S OPENING STATEMENT

1. Senior counsel for the applicants (Mr Keon-Cohen QC) opened the applicants’ case at Alice Springs on 1 July 1997.  Following the opening the Court was taken to Anzac Hill, a vantage point close to the city centre, from where a general view of many parts of the claimed area was obtained.  Some brief explanatory evidence was given.  At the commencement of proceedings on 2 July 1997 the Solicitor-General for the Northern Territory (Mr Pauling QC) made the following statement (t 67-69):

   MR PAULING: . . . Following Mr Keon-Cohen’s very helpful opening statement in this claim and the welcome from Rosie Ferber, it is appropriate that I make a statement on behalf of the Northern Territory Government.  This claim is made by Arrernte people to Arrernte country.  It is no part of the case we seek to make that the Alice Springs area has no-one who, in Aboriginal terms, are the traditional owners or that it is not Arrernte country.

   Mr Keon-Cohen was quite right to draw attention to the words on the plaque at the Desert Wild Life Park acknowledging that since time immemorial the area of the Alice Springs Desert Park has been occupied by the Arrernte people.  It was also quite right to draw attention to the fact that there are very many sacred sites registered by the Aboriginal Areas Protection Authority under the strongest and best sacred sites legislation in this country.  The Government totally supports this Authority.  It is no part of our case that the applicants have to prove over and over again matters of skin, sub-sections and kinship terms, although obviously there will be a good deal of that type of evidence because this is a big part of identification with country.

   To understand our position on this claim, it is necessary to understand how the applicants’ case at its highest is put.  It is a claim to the exclusive ownership and the exclusive use and benefit of all of the land claimed, all of the resources in and on it, the sub-soil, and to the water under and on it, as well as the airspace above it.  Nothing is left out.  No-one knows yet, because no court has yet decided, whether all of these things can legally be claimed.  Obviously, the claim to subterranean water is a matter of concern as it involves the Alice Springs water supply.  We say it cannot be claimed.

   There are also many places where we say that native title must have been extinguished.  It will be argued that, unlike Wik, the grant of pastoral leases in the Northern Territory did extinguish native title.  This is because of the very different historical, legislative and administrative background including the fact that when the Commonwealth took over the administration of pastoral leases, reservations in favour of Aboriginal inhabitants permitting hunting, gathering and camping on pastoral leases were deliberately removed because of concern, it would seem, that such persons might camp near made (sic) waters and disrupt the work of the pastoralist, presumably by frightening cattle away from the source of water.

   This, however, has to be legally argued out. It says nothing about suggesting that in traditional terms and traditional ways Arrernte people are not the right people or the appropriate people for Alice Springs. It is a legal issue. It arises because of the Native Title Act and because of some parts of the common law.

   The next issue that needs to be decided concerns the legal effect of the Aborigines Ordinance and the declaration of Alice Springs area as a prohibited area.  Mr Keon-Cohen mentioned that on three or four occasions.  Did this extinguish native title?  No-one at this stage knows.  Again, what was the legal effect of the military occupation of Alice Springs during the second World War?  This is another matter that needs to be carefully looked at.

   The next matter is the grant of leases in the town where houses were built and fenced that have since been pulled down.  A very good example of that are the two lots on the corner of – two of the four lots on the corner of Stott Terrace and Hartley Street.  One of those lots was previously home to the Aboriginal Congress.  The other had housing built upon it, and indeed, part of the evidence that will come in is an aerial photograph of the town taken in 1955 which shows these lots with houses on them.  So that a legal argument arises then as to whether or not those town leases conferred a right to exclusive possession upon the leaseholder because, if it did, then on any view of the law as it presently is, it may have extinguished native title.  This is consistent with Mabo and it is consistent with Wik.

   There are many places claimed which were the subject of very intensive use before and during and after the war to the exclusion of all others, including the Arrernte people.  And Mr Keon-Cohen read out part of a list that is in our statement of facts, issues, and contentions, involving a piggery, and an explosives factory, and all of these sorts of things.  So there is evidence that will be given about that land use, and your Honour as a matter of law is going to have to decide questions of extinguishment.  So we have to present that evidence and argue that.  None of this, however, involves a denial that this is Arrernte country, nor does it involve a denial that consultation and recognition is very much a part of the relationship between the Northern Territory Government and the Arrernte people.

   The anthropologist’s report in this case suggests many ways people could claim to be native title holders, and I want to talk about that because we have some difficulty there.  The first claim is apmereke-artweye or those whose fathers were acknowledged owners, and we do not have any argument at all about that.  The second is kwertengerle, and subject to the evidence we hear about that, we do not think that is a problem.  But the more distant claims we dispute for it must be remembered that the decision in this case, subject to any appeal, will set a precedent under this new Act, and it is a very different Act to the Aboriginal Land Rights Act.  This is but one claim of many, and the rules have to be set right at the beginning.  The Northern Territory Government as the land administrator has a duty to the people of the Northern Territory, both Aboriginal and non-Aboriginal, to do all it can to see that the rules are right.

   The next big issue is: what exactly are native title rights?  The High Court did not tell us in Wik.  The evidence in this case will tell us what laws, customs, practices, and traditions, stretching way back, are still acknowledged and observed, and the question will then be whether they are integral to a distinctive culture or only a description of how people live.  This is a very difficult legal matter and we will test the evidence to see what the result will be.  It may be that the High Court will have to decide the legal questions in the end as they were asked to do in both Mabo and Wik.

   So these are some but not all of the matters that need to be decided by your Honour.  We will be as helpful and co-operative as possible, including sharing information about land tenure with the Court and the applicants’ lawyers, and indeed, we look forward to an opportunity to display to you what this computer can do because, for the first time, we have this resource and it can answer questions very quickly about land matters and, where difficulties arise, we will do all we can to save time and money by working things out, not only between the lawyers, but with the Court.

   I want to say to the Arrernte people that we are very happy to be here in this beautiful and fascinating Arrernte country.  We are here because there are many legal and factual matters to be decided.  These decisions are necessary because the Act is new.  No-one, including Mr Keon-Cohen and Mr Howie, know yet what it all means, and it is important that we all get it right.  If native title has, on the evidence, been extinguished, we will say so, and we will put forward arguments about pastoral leases, other grants, land use and legislative and administrative acts which affect native title.  That is our job in this claim, but there is no reason that we cannot enjoy the process together and conduct these proceedings with good grace and friendliness because we look forward very much to hearing more about Arrernte country and Arrernte tradition. 

1. Following this statement evidence was called from members of the claimant groups over a period of 15 hearing days in the month of July 1997. The Court then adjourned until 9 February 1998 to accommodate the convenience of counsel who were involved both in this and another proceeding in the Court.  Further evidence was given by Aboriginal witnesses on 9 hearing days in February 1998.  In total, 48 members of the claimant groups gave evidence.  The Court resumed on 2 March 1998 when the applicants called Dr J K Henderson, a linguist and Dr Morton.  Dr Morton’s evidence-in-chief commenced on 2 March 1998 and continued on 3 and 4 March.  At the commencement of proceedings on 3 March 1998 the Solicitor-General for the Northern Territory, by leave, made the following further statement (t 1695):

   MR PAULING:  Can I, before Mr Howie resumes questioning, say something, your Honour.  Your Honour, if as we heard yesterday Dr Morton does not resile from the views he has expressed at the various pages he was taken to, including ranking as between father’s father and so on down the line, that is pages I think 24, 25, 26 and 27 of the report, and assuming that apmereke-artweye does not literally suggest patrilineal connection to an estate because it may relate to a Dreaming or a totem or something that is not estate bound, then we have no argument with what Dr Morton’s said so far.

   And we invite – and I have already discussed with Mr Howie, so I know what his answer is going to be – for the record we invite them, if that be the case, if the evidence were to stop now, there would be no submission from us, at the end of the day, that there were no persons identified as capable of being the holders of native title in respect of Arrernte country.  In others words, in brief, we are saying, as we said at the start, that the model is the narrow model, as it has come to be called from time to time, we have no quarrel with that at all.  If it is sought, and one knows from experience how it happens that people come along and say, “Well, I’m a traditional owner,” to use a bit of Aboriginal English, “when am I giving evidence?” And you say, “Well, you don’t fit our model.”  “No, no, when am I giving evidence?”  So that one can see how things are led.  But what we are saying is – since I know the answer I will not go on with it – briefly that if the evidence stopped at this point, then step one that provided it is the narrow model is not contested.

   THE TRADITIONAL LANDS

2. Before proceeding to a consideration of the evidence relating to the identification of the native title holders, it is appropriate to observe that there is no dispute that the whole of the claimed land is part of the country recognised as the traditional land of the ancestors of the members of the claimant groups at and prior to the settlement of that land by non-Aboriginal people.

THE NATIVE TITLE HOLDERS

1. In response to the Solicitor-General, Mr Howie (for the applicants) indicated that the applicants intended to proceed with Dr Morton’s evidence and that it would be submitted that members of the claimant groups who are related to their respective  estates by reason of relationships other than through their arrenge (father’s father) and atyemeye (mother’s father) are members of the landholding groups entitled to native rights and interests in those estates.  The two statements made by the Solicitor-General and the response of the applicants’ counsel clearly indicate that at issue between the parties is whether, in the event that native title rights and interests are found to exist, the respective landholding groups should extend to those who claim rights by descent from any one of their four grandparents (as the applicants assert) or be confined to those whose claims are through either their father’s father or their mother’s father.

1. The evidence establishes that there are groups of Aboriginals who claim and exercise communal or group rights and interests in relation to one or more of the estates which comprise the land and waters the subject of the application.  That is not in issue, nor is it disputed that the rights and interests in question are possessed under laws and customs acknowledged and observed by the Arrernte people of the Alice Springs area and that those laws and customs are derived from laws and customs passed down from the ancestors of the present claimants.  The changing social and political environment arising from European settlement has undoubtedly given rise to some modification and adaptation of the old laws and customs, but that is not to say that the laws and customs as presently acknowledged and observed are other than the traditional laws and customs of the claimant groups.

1. Whatever relationships may, in former times, have entitled a person to claim the status of apmereke-artweye or kwertengerle, there is presently no uniformity of understanding amongst those members of the claimant groups who gave evidence.  In the early stages of the hearing it seems that the evidence tended towards the proposition that descent from one’s arrenge was required for the status of apmereke-artweye and from one’s atyemeye, for the status of kwertengerle.  This is the thrust of the evidence of the earlier witnesses who were mainly the senior members of the claimant groups.  In later evidence, given mainly by younger claimants, descent from any of one’s four grandparents was asserted to be sufficient to give rise to rights in relation to an estate.  And it may well be that there is no necessary conflict between these two assertions;  it all depends upon the nature of the rights asserted.  The Native Title Act recognises that native title rights and interests include hunting, gathering, or fishing, rights and interests, that is, rights which may be purely usufructuary and exercisable without the need for any proprietary interest in the land or waters over which they may be exercised.  By way of analogy, reference may be made to the Aboriginal Land Rights (Northern Territory) Act 1976 under which a finding that there are traditional Aboriginal owners of land is necessary before a grant of title can be made to a Land Trust, but once a grant is made the land is held for the benefit of “Aboriginals entitled by Aboriginal tradition to the use and occupation of the land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission” (Land Rights Act s 11(4)).  In the context of the Native Title Act it would appear that a traditional right to hunt, to gather or to fish on an estate with the permission of the land holding group would amount to a native title right or interest  and  entitle  the  person  concerned  to  recognition  as  a  native  title  holder

   (s 224(b)).  Be all that as it may, in the event that it finds that native title exists, the Court is charged with the task of identifying the persons or group of persons who hold the native title rights (s 225(a)).  It would be impossible in a case such as the present to name all of the relevant individuals and it would be a useless exercise to do so.  With the passage of time the composition of the group will change as senior members pass on and new members are born.  The concept of native title is not confined to what may be termed ownership or traditional ownership of land but rather extends to all traditionally based rights and interests in relation to the particular area in question.

1. The respondent asserts (final submissions, para 49) that it is only possible to identify as the holders of native title those people who, at their discretion, have control of all other persons’ rights and it is said that under the “expansive” model (as distinct from the “narrow” model referred to in the Solicitor-General’s statement on 3 March 1998) advanced on behalf of some claimants a very valuable right, that is the right to deny recognition to others, would be diluted out of existence if all Arrernte descendants were to have equal native title rights and interests.  The respondent’s submission (para 50) is that “the traditional owners” of the estates are those who claim country through their father’s father and are apmereke-artweye and those who claim through their mother’s father and are  kwertengerle plus those who obtain kwertengerle status through authorisation from this group.  Such a formula would be a very convenient means of expressing the position if native title rights and interests are equated with “traditional ownership” of land but this is not the case.  As native title rights and interests may extend to rights and interests which lack any proprietary element the concept of “traditional ownership” is not appropriate to describe “native title rights and interests” as defined in the Native Title Act.  The Act makes no distinction between those rights and interests which on the one hand may confer a status equivalent to ownership and those which on the other hand are purely usufructuary or indeed are merely permissive.  On the basis of the material presented in this case the appropriate description of the native title holders of the estates of the claimant groups is those Aboriginal persons who are descended from the original Arrernte inhabitants of the Mparntwe, Antulye and Irlpme estates who are recognised by the respective apmereke-artweye and kwertengerle of those estates under the traditional laws acknowledged and the traditional customs observed by them as having communal, group or individual  rights and interests in relation to such estates.

1. Paragraph (a) of s 225 of the Native Title Act contemplates that a determination of native title will identify “who the persons, or each group of persons, holding the common or group rights comprising the native title are”.   I do not regard this provision as requiring each individual member of a group of persons found to hold native title to be identified by name.   Such a requirement would be impossible to fulfil and even if it were possible to name each individual comprising the group at the time the determination is made, to do so would be meaningless as the composition of such a group will inevitably be in a state of flux as senior members pass on and as new generations emerge.   In my opinion a description of the type suggested in the final sentence of the preceding paragraph is sufficient to satisfy the requirement of

   s 225(a).

TRADITIONAL LAWS AND CUSTOMS

1. The applicants’ written submission on native title issues dated 12 June 1998 asserts in paragraph 11.6 that under the traditional laws acknowledged and the traditional customs observed by the Arrernte people the members of the three estate groups have the right to possession, occupation, use and enjoyment of the land and waters of their respective estates to the exclusion of all others;  and in paragraph 11.7 that under the traditional laws acknowledged and the traditional customs observed by the Arrernte people the members of the three estate groups:

   (i)have the right and interest of possession, occupation, use and enjoyment of the land and waters of their respective estates;

   (ii)have the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates;

   (iii)have the right and interest of ownership of the natural resources of the land and waters of their respective estates, and the right to use and enjoy those resources;

   (iv)have the right to give or refuse permission to non-members of the estate groups to occupy, use or enjoy the land and waters of the respective estates, or to use and enjoy the natural resources of that land and waters;

   (v)have the right to make decisions about the use of the land and waters of their respective estates;

   (vi)have the right to protect places and areas of importance in the land and waters of the respective estates;

   (vii)have the right to manage the spiritual forces and to safeguard the cultural knowledge associated with the land and waters of the respective estates.

2. On the basis of the claimed rights and interests the applicants seek the determination to which reference is made earlier in these reasons.   Although there is a degree of inconsistency between the exclusive right asserted in paragraph 11.6 of the submission and that asserted in subparagraph 11.7(i), I will assume that the applicants’ primary claim is to exclusive possession, occupation, use and enjoyment of the claimed land, a claim which is repeated in a modified form in subparagraph (c) of the proposed determination.   I have some difficulty in understanding the full import of the claim in paragraph 11.7 (ii) of the submission (which is repeated in the proposed determination) to be acknowledged as the “traditional Aboriginal owners” of the claimed land and waters.   In the Land Rights Act  the term “traditional Aboriginal owners” has a special and defined meaning but it is not a term which is found in the Native Title Act, and if it is intended to be equated with “native title holder” (defined in s 224) or “common law holders” (defined in s 253) then it would be preferable to use those terms which have a meaning in the context of native title law.

1. Before embarking upon a detailed consideration of the claimed native title rights and interests it will be convenient to make reference to the evidence of a number of the senior claimants.   It is a consistent feature of the evidence that witnesses assert that their knowledge of their traditional laws and customs has been, and continues to be, passed down from earlier generations.   This being so, it is logical to assume that the senior generations of the claimant groups can provide the most reliable evidence of traditional laws and customs.   In the following paragraphs selected passages from the transcript of the evidence of a number of witnesses will be quoted.   It is not intended that this treatment of the evidence should be regarded as an exhaustive analysis of all of the evidence given in relation to the specific topics considered but rather to be indicative of the general thrust of the totality of the evidence in relation to those issues.   The only significance in the order in which the various witnesses are dealt with is that they are in the order in which they were called.

1. Frank Stevens was asked a series of questions concerning the right of different people to live in the claim area.   His evidence was (at T 165-6):

   Q. Now we have talked about town camps on Mparntwe country, Frank, some of them Arrernte people, some of them are people from other languages.  If people from other languages, Pitjantjartjara or Warlpiri, Anmatyerr want to camp on Mparntwe country.

   A.They are already here.

   Q.They are already here?

   A.We can’t talk now.

   Q.By your law what should happen if they want to camp on your country.

   A.       We still can’t talk, but now we got some family link – linkage.

   Q.Family linkage with them?

   A.We can’t talk now.

   Q.I just wanted to be clear about your traditional law, about Mparntwe.   If people from outside wanted to camp on your country, what should they do?

   A.In the old days, you could never come in on other people’s country.

   Q.And now should they ask permission?

   A.Look at this, we civilised now.   The altyerre is here all the time, no matter we got trousers and shirt, clothes, that culture has got to be there all the time.

1. Rosie Ferber Ampetyane, a senior kwertengerle for the Mparntwe estate was asked by Mr Howie (at T 214-215) what rights and obligations Arrernte law gave her in Mparntwe country but her initial answers were not responsive to the question.  However, after the intervention of the luncheon adjournment the following exchange took place between counsel and the witness (T 216-217):

   Q.Now, Rosie, I was asking you before the luncheon adjournment about Mparntwe country and about your Arrernte law and about what rights that law gives you in Mparntwe country and I think you have told us that, for that country, you belong to it, that you are kwertengerle for it, that you are apmereke-artweye through your mother, and that she was apmereke-artweye, and you have told us that your spiritual totems are in the country.  I just want to ask you a little more about the rights that you have in Mparntwe country.  In the evidence that you have given today and yesterday, you have spoken of camping and living at various places, at Inernte-akerte which is site 16, at Uyenpere Atwatye which is site 51, at Kere Kwatye, site 23, at Ilperle Tyathe which is site 7, at Werlatye Atherre which is site 9, at Mpwetyerre which is site 44.  They are just the ones that I can think of for the moment.  There may be others.  But they are different places you have camped on in Mparntwe country.  When you have been living at those places, have you had the right to live there by your law, or not?

   A.That question, in my view, my answer to that – that is my family have been living here for generation to generation and not moving away to other countries that belong to other tribes.  Arrernte people have been living here always and never moved away from here and that gives me the right to be here and – and I should be fighting – fighting for this land and that gives me the right.  I should be looking after the sacred sites, looking at the land itself, when developers wanting to take a bit of land away from us again and looking at it my way.  Looking at Mparntwe now is like watching yourself being torn apart, and I’ve been emotionally free to talk – talk with this land and that gives me the strong right through my culture – to look after the land the way the old people looked – looked after it.  And when they were living here none of the tribes would come in here without permission from the old people.  And inwardly, I look at it that way and I think that gives me the right to be – talk for Mparntwe.

   Q.And if you have got that right to be here and talk for Mparntwe, do you also have a right to use Mparntwe land?

   A.Mparntwe is my country.  I’m – I’ve got the right to go around Mparntwe area looking for what I – what I can get from it in ways of tucker and meat and looking for water – and which places to go back with my kids and show them the things that I want to show them.  That – I think that gives me the strong point to be – and talk about Mparntwe.

   Q.All right.  Yes, thank you, Rosie.  That right that you have Rosie, will somebody else take over those rights as you get older and move on?

   A.Yes, we got – we got out kids to take over from us.  That’s my nieces, nephews and grandchildren and my kids.

   Q.And the rights that you have spoken of:  where do they come from?

   A.The rights to speak for Mparntwe is passed on from generation – from generations down to this day and will go on.

   Q.       And where do they come from in the first place?

   A.       Altyerrenge-ntyele.

2. Thomas Stevens enjoys the dual status of apmereke-artweye for the Mparntwe estate and kwertengerle  for the Irlpme estate.  He too was asked about the rights in Mparntwe country (T 305):

   Q.When you are living at Inernte-akerte, whose country were you living on?  Whose country were you living on there?

   A.Our country, Mparntwe.

   Q.       When you got the water from the creek, did you have the right to do that?
   A.       Yes, I had the right.

   Q.       Where did that right come from?
   A.       Come from my grandfathers.

   Q.From your grandfathers.  And when you were getting bush tucker in that area, did you have the right to do that?

   A.Had the right.  Right - - -

   Q.       Where did that – sorry, I interrupted you? 

   A.       Had the right.  Right from my grandfathers countries, Mparntwe.

3. When Patrick McMillan, another senior Mparntwe kwertengerle gave evidence at a site known as Ilperle Tyathe (otherwise the Warlpiri Camp) near an area which is registered with the Aboriginal Areas Protection Authority, the following exchange took place.  (T 328-9):

   Q.By your Arrernte Law, what can you do here;  that group of people that you have spoken of, what can you do here?

   A.Well, I’d look after it and protect the place.

   Q.       You would look after it and protect it?
   A.       Yes.

   Q.If you wished to, by your Law, is this an area where you could camp and walk around?

   A.Yes.

   Q.       What else could you do here, by your Law?
   A.       Go hunting here somewhere.

   Q.       You could go hunting here?
   A.       Yes.

   Q.       Is there – can you still hunt here now?
   A.       No.

   Q.       What (sic) is that?
   A.       Don’t have to worry about walking about now.

   Q.       Yes,  Are there still kangaroos or euros here?
   A.       Yes, some euros here.

   Q.       Have you got the right to go hunting them here?
   A.       Yes.

   Q.       In earlier days, did people camp here?
   A.       Yes.

   Q.       Did that include Mparntwe people?
   A.       All mixed up, yeah.

   Q.All mixed up.  Yes.  All right.  What about bush tucker;  can you get bush tucker here?

   A.Yes.

   Q.       What sort of things?
   A.       Those alangkwe.

   Q.Right.  What about the soakages that were here;  do you have the right to get water from those soakages by your law?

   A.Yes.

   Q.       When you get older, Patrick, who will take over this country?
   A.       My family.

   Q.       Which people?
   A.       My sons and daughters.

   Q.       Yes.  Just by themselves?
   A.       They got to have some kwertengerle somewhere.

   Q.       All right.  And will they take over that country took, round here?

   A.       Yes.

   Q.Who will teach the next generation about this area;  who will tell them about the places and the soakages and the bush tucker, and the Dreaming, those things?

   A.I’ll tell them.  I’ve already told them anyway.

iii)Sabella Turner Kngwarraye is a member of the Antulye group.   At the time the application was made she resided at Ilpeye Ilpeye Town Camp on the east side of Alice Springs adjacent to surrounding vacant Crown land.   The evidence establishes that at the relevant time Ms Turner used the land to the east of Ilpeye Ilpeye and the west of the Undoolya Station boundary for the purpose of hunting and collecting bush food and medicine and that she used land in the vicinity of sites known as Arnkarre Atherrke-Atherrke (site 76) and Irrlparle (site 74) and vacant Crown land between Ross Highway and Amoonguna to obtain firewood and gather bush food and medicine.   These activities are sufficient to establish that when the application was made she occupied areas 27, 135, 136, 138, 139, 140, 143 and 167.

iv)Renee McLean Ampetyane is a member of the Irlpme group.  She resided at a camp at Middle Park (area 70) for a period of 7 years including the time when the application was made.   She and her sisters used the land surrounding the camp to gather food and medicine, collect firewood and obtain water from a soakage in the bed of the Todd River.   These activities establish that when the application was made Ms McLean occupied areas 70, 122 and 123.  

v)Myra Hayes Ampetyane is connected to both the Mparntwe and the Antulye groups.   Since 1990 she has lived permanently on vacant Crown land at a site known as Irrkerlantye Atwatye (site 33) at a camp commonly known as White Gate.   The camp is located centrally in relation to areas 137, 138, 139, 143 and 144 all of which are used for the purpose of collecting firewood and gathering bush food and medicine.   In addition Ms Hayes and members of her family travel over and hunt and gather bush food on area 140.   On occasions she camps at the site known as Aherre-Aherre (site 19) on area 137.   There are places within these areas which are used for bush camps in relation to the training and initiation of young men.   Ms Hayes’ activities in relation to the land establishes that when the application was made she occupied areas 137, 138, 139, 140, 143 and 144.  

vi)Frank Stevens Peltharre is a member of the Mparntwe group and resided at Sixteen Mile outstation (about 30 km north of Alice Springs) at the time the application was made.   His evidence deals with his activities in relation to assisting government officials in the protection of sacred sites on areas 87, 141, 142, 147, 166 and 168.   Although the protection of sites is an important traditional activity, the fact that a person from time to time enters upon the land in question in pursuit of that activity is not, by itself, sufficient to amount to occupation of the land.

vii)Robert Francis Stuart Kngwarraye is a member of the Mparntwe group.  He resided in Alice Springs when the application was made.   His evidence deals mainly with his use of area 27 which is currently the subject of CLP 764 in favour of the Mbantarinya Aboriginal Corporation.   A second aspect of Mr Stuart’s evidence is in all material respects the same as that of Frank Stevens, and for the reasons expressed above Mr Stuart cannot be regarded as having occupied the areas in question at the relevant time.

viii)Patrick McMillan Perrurle resided at Uyenpere Atwatye (site 51) (sometimes known as Hidden Valley) on area 146 when the application was made.  He is a member of the Mparntwe group.   At the relevant time Mr McMillan used the land to the east and south of his camp for hunting, obtaining water and gathering firewood, bush food and medicine.   He would share the results of his hunting with other members of his family in accordance with traditional Aboriginal practices.   These activities establish that when the application was made he occupied areas 27, 139, 140, 146, and 150.  

ix)Veronica Golder Pengarle is a member of the Mparntwe group.   She has resided at the Ilpeye Ilpeye town camp for over 15 years.   Her evidence deals with her activities in collecting firewood, bush tucker and bush medicine on land close to Ilpeye Ilpeye which is identified as areas 138, 139, 140,143 and 144.   She also collects bush tucker on the Mbantarinya Aboriginal Corporation lease (area 27).   All of the areas mentioned have been dealt with in the evidence of other witnesses.   There are however two other matters referred to by Ms Golder.   She says that during 1993 and 1994 she was involved in a tree planting project on Billygoat Hill (area 32) which was organised by Greening Australia.   That activity does not amount to occupying area 32 in any relevant sense.   Her evidence also deals with another part of the claimed land.  At paragraph 5 of her witness statement (exhibit A 64) she states:

I also regularly visit Ankerre-ankerre (Coolibah Swamp) (site 47) to collect alpmenye (bark from the coolibah tree).   This is the country shown on the map as Claim Area 142.   This bark is burned to make ash to chew with ingkwerlpe (native tobacco) or tobacco.   I walk to Ankerre-ankerre.   I have been doing that since I have been living at Ilpeye Ilpeye.

Area 142 was subdivided in 1994 to form lots 8163 – 8166. The land has a frontage to Stott Terrace close to, but on the opposite side of Stott Terrace, from Sadadeen High School. It is in reasonable proximity to Ilpeye Ilpeye. Given Ms Golder’s continued involvement in the use of her traditional country for the gathering of food and medicine and her long term residence at Ilpeye Ilpeye it is appropriate to regard her continued use of the resources of area 142 as part of her continued occupation of her traditional country.

1. It is unnecessary to canvass the evidence of the remaining witnesses of the group referred to in the preceding paragraph.   In some cases their evidence relates to areas which have been found to have been occupied by one or more members of the claimant group at the time when the application was made and in other cases it relates to areas which have not been affected by any prior extinguishing interest.   It is sufficient to say that in each case the evidence is along similar lines to that summarised above and establishes occupation of the areas referred to at the relevant times.   The names of the witnesses and the areas to which their evidence relates are as follows:

   i)Teresa Webb Angale (Irlpme group)

   Areas 135, 136 and 137

   ii)Brian Kevin Stirling Kemarre (Mparntwe group)

   Areas 27, 137, 138, 139, 140, 143 and 146

   iii)Jean Stuart Kemarre and her daughter

   Rona Stuart Kemarre (Atulye group)    

   Areas 80, 88, 92, 94, 147, 148 and 150

   iv)Marie Elena Ellis Kemarre/Perrurle and her sister

   Roseanne Philamena Ellis Kemarre/Perrurle      

   Areas 135, 136 and 137

   v)Felicity Hayes Angale

   Areas 116, 131 and 132

   vi)Patricia Anne Miller Kemarre and her sister

   Karen Liddle Kemarre (Mparntwe group)

   Areas 27, 89, 90, 129, 133, 134, 136, 137, 138, 143, 144 and 167

1. The provisions of s 47B do not apply to land covered by a lease (and thus does not apply to area 27) and further have relevance only in relation to land in relation to which native title has been extinguished by the creation of a prior interest in the land.   Areas which were occupied by one or more members of the claimant group when the application was made but which have not been the subject of a prior extinguishing interest are areas 80, 88-90, 92, 94, 116, 129, 131-134, 137, 147, 148, 150 and 151.   The section does however operate so as to require that any extinguishment of native title by the creation of a prior interest be disregarded in relation to areas 62, 70, 122, 123, 135, 138-140, 142-144, 145, 152-155, 161-163 and 167.

CONCLUSIONS

1. The applicants are entitled to a determination of native title which reflects the findings expressed in these reasons.

Section 225 of the Native Title Act sets out the information which such a determination must contain.   The section provides:

225.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.

1. Section 225 of the Native Title Act refers to the making of a determination of native title in relation to a “particular area” of land and waters.   In a case involving large tracts of land, such as pastoral holdings or remote areas of unalienated land the task of describing the determination area by metes and bounds would not normally present any great difficulty but in a case such as the present the problem is compounded not only by the number of discrete parcels of land involved but by the fact that the current lot and portion boundaries bear little or no relationship to the boundaries of land which in earlier times has been the subject of extinguishing acts.   Whilst many of the 166 areas of claimed land have not been the subject of any extinguishment, there are many others in respect of which native title has been extinguished as to the whole of the lot or portion.   Those cases present no difficulty but there remain numerous areas in respect of which extinguishing acts have affected only a portion of the land.   The position is further complicated by the lack of definition in many instances of the location and area of land occupied by public works and adjacent land.

Consistent with the Court’s findings the determination area comprises:

a)Areas 2, 5, 6, 9 to 22 (inclusive), 24, 26, 32, 38, 39, 42, 43, 45, 46, 51, 52, 55, 57 – 62 (inclusive), 70, 72, 74 – 76 (inclusive) 80, 83, 88 – 90 (inclusive), 92, 94, 95, 98, 101 – 103 (inclusive) 105, 109 – 111 (inclusive), 116, 117, 120 – 140 (inclusive), 142 – 144 (inclusive), 146 – 155 (inclusive), 161 – 163 (inclusive) and 165 – 168 (inclusive).

b)Those parts of areas 25, 28, 33, 36, 40, 49, 54, 71, 87, 106, 108, 112, 118, 119, 141, 145 and 156 which have not been the subject of a previous exclusive possession act or a category A intermediate period act.

EXCLUDING any land or waters on which a public work is or has been constructed or established and any adjacent land.

In the final determination it will be preferable for these areas to be described by reference to their respective lot or portion numbers, and for a map or some other description to be prepared to define relevant boundaries in cases in which only part of the claimed land has been subject to extinguishment.   These are matters which the Court must look to the parties for assistance.

1. Consistent with the Court’s findings the determination will provide:

   i)Native title exists in respect of the determination area.

   ii)The persons who hold the common or group rights comprising the native title (the common law holders) are those Aboriginals who are descended from the original Arrernte inhabitants of the Mparntwe, Antulye and Irlpme estates who are recognised by the respective apmerke-artweye and kwertengerle of those estates  under the traditional laws acknowledged and the traditional customs observed by them as having communal, group or individual rights and interests in relation to such estates.

   iii)The nature and extent of the native title rights and interests in relation to the determination area are, subject to the rights of others validly granted by the Crown pursuant to statute and to any valid executive or legislative act affecting the native title of the common law holders, as follows:

   a)the right to possession, occupation, use and enjoyment of the land and waters of the determination area;

   b)the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates within the determination area;

   c)the right to take, use and enjoy the natural resources found on or within the land and waters of the determination area;

   d)the right to make decisions about the use of the land and waters of their respective estates within the determination;

   e)the right to protect places and areas of importance in or on the land and waters within the determination area;

   f)the right to manage the spiritual forces and to safeguard the cultural knowledge associated with the land and waters of their respective estates within the determination area.

   iv)The nature and extent of other interests in relation to the determination area are such rights and interests validly granted by the Crown pursuant to statute or by any valid executive or legislative act affecting the native title of the common law holders including the rights and interests of members of the public to the use and enjoyment of the determination area according to law.

v)To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph (iii) and the rights conferred by the other interests referred to in paragraph (iv), the native title rights and interests must yield to such other rights.

vi)The native title rights and interests of the common law holders do not confer possession, occupation use and enjoyment of the determination area on the common law holders to the exclusion of all others.

1. The Court intends to make a determination of native title substantially in the terms outlined in the last preceding paragraph.   The final content and form of the determination will be settled after the parties have had the opportunity to consider these reasons and to make submissions as to precise content of the determination.   It is expected that prior to any such submissions being made the parties will confer with a view to reaching a consensus as to the ultimate form of the determination.

1. One of the determinations that the Court is required to make is whether the native title is to be held in trust, and if so, by whom (s 56(1)). For the purpose of complying with its obligations under s 56(2) the Court requests that Myra Hayes Ampetyane as a representative of the persons who it is proposed will be included in the determination as the common law holders to indicate whether the common law holders intend to have the native title held in trust by:

   i)nominating, in writing given to the Federal Court within a period of 2 months, from the date of the publication of these reasons a prescribed body corporate to be trustee of the native title;  and

   ii)including with the nomination the written consent of the body corporate.

In the event that the common law holders give such nomination within the period specified, the Court will determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders (s 56(2)(b)), otherwise the Court will determine that such rights and interests are to be held by the common law holders (s 56(2)(c)).

APPENDIX

(EXPLANATORY NOTE:   The appendix identifies the Northern Territory portion/lot number for each claimed area.   The current tenure status is indicated immediately below the NT portion or lot number.   Particulars of prior acts which extinguish native title in respect of either the whole or part of the area are marked with an asterisk (*).   In each case where a prior extinguishing act is required to be disregarded the notation “s 47B applies” has been added).

Area 1. NTP 538

*Reserve 925 (Alice Springs Quarantine Reserve)

Area 2.            NTP 935

Reserve 1289 (Kuyunba Conservation Reserve)

Area 3.            NTP 942

Reserve 1289 (Kuyunba Conservation Reserve
  *Formerly part of Reserve 925 (Quarantine Reserve)

Area 4.            Withdrawn from claim

Area 5.            LOT 941
  Reserve 1071 (Alice Springs Telegraph Station Historical Reserve)

Area 6.            LOT 943

Reserve 1071 (Alice Springs Telegraph Station Historical Reserve)

Area 7.            LOT 1286

*Reserve 1281 (Olive Pink Botanic Gardens)

Area 8. LOT 1325

*Reserve 1281 (Olive Pink Botanic Gardens)
  *1/1/20 – 31/12/40 – Partly within ML 38

Area 9.            NTP 1510

Reserve 1248 (Geological and Geophysical purposes)              

Area 10. NTP 1686

Reserve 1071 (Alice Springs Telegraph Station Historical Reserve)      

Area 11. LOT 2314

Reserve 1294 (Alice Springs Telegraph Station National Park)

Area 12. LOT 5124

Reserve 1248 (Geological and Geophysical purposes)

Area 13. LOT 5140

Reserve 1708 (Municipal purposes)

Area 14. LOT 5141

Reserve 1708 (Municipal purposes)

Area 15. LOT 5142

Reserve 1708 (Municipal purposes)

Area 16. LOT 5804

Reserve 1708 (Municipal purposes)

Area 17. LOT 5805

Reserve 1708 (Municipal purposes)

Area 18. LOT 5806

Reserve 1708 (Municipal purposes)

Area 19. LOT 5807

Reserve 1708 (Municipal purposes)

Area 20.          LOT 5808

Reserve 1708 (Municipal purposes)

Area 21.          LOT 5809

Reserve 1708 (Municipal purposes)

Area 22.          LOT 5810

Reserve 1708 (Municipal purposes)

Area 23.          LOT 6480

Reserve 1602 (Public Park)

*1/7/50 – 30/6/71 Wholly within ML 456

Area 24.          NTP 688

CLP 770 (West Macdonnell National Park)

Area 25.          NTP 1927

CLP 595 (Conservation Land Corporation)
  *8/8/75 – 17/9/80 Partly within SPL 364

Area 26.          NTP 5774

CLP 445 (Conservation Land Corporation)

Area 27.          NTP 8043

*CLP 764 (Mbantarinya Aboriginal Corporation)

Area 28.          LOT 8212

CLP 1116 (Conservation Land Corporation – Desert Park)

*28/9/61-16/4/82 Partly within SPL 92

Area 29.          NTP 427

*Crown land set and used for Arid Zone Research Station extension

Area 30.          LOT 800

*Crown land set aside and used for Arid Zone Research Station

Area 31.          NTP 1454

Crown land set aside and used for Alice Springs Government explosives reserve

*Public work (whole)

Area 32.          LOT 2669

Crown land set aside for water supply purposes

Area 33.          Lot 2683 (Note 1)

Crown land set aside for Anzac Hill High School

Area 34.          LOT 5148

*Freehold Title granted to Power and Water Authority

Area 35.          LOT 5192

Crown land set aside for a railway corridor

*1/7/54 – 30/6/75 Wholly within ML 503

*Public work (whole)

Area 36.          Lot 5651 (Note 2)

Crown land set aside for Sadadeen Primary and Special School

*1/7/52 – 30/6/71 Partly within ML 482

Area 37.          LOT 7819

Crown land set aside for a gem field

*14/9/87 – 26/8/91 Wholly within CLT 721

Area 38.          LOT 8237

Crown land set aside for a drainage area

Area 39.          LOT 8238

Crown land set aside as a drain

Area 40.          LOT 950

Unalienated Crown land
  *1/7/43 – 14/9/65  Partly within ML 271

Area 41.          LOT 1031

Unalienated Crown land (Lands Department Survey Depot)
  *Public work (whole)  

Area 42.          LOT 1285

Unalienated Crown land

Area 43.          LOT 1343

Unalienated Crown land

Area 44.          LOT 1602

Unalienated Crown land

* Public work (whole)

Area 45.          LOT 1605

Unalienated Crown land

Area 46.          LOT 2421

Unalienated Crown land

Area 47.          LOT 2435

Unalienated Crown land

  *1/7/59 – 14/2/69 Wholly within AL 704

*1/7/68 – 1/10/84 Wholly within ML 535

Area 48.          LOT 2436

Unalienated Crown land
  *1/7/59 – 14/2/69 Wholly within AL 704

*1/7/68 – 21/2/80 Wholly within ML 534

Area 49.          LOT 2494

Unalienated Crown land set aside for drainage purposes
  *1/7/48 – 21/5/56 Partly within ML 394

Area 50.          LOT 2656

Unalienated Crown land
  *3/9/85 – 26/6/87 Wholly within CLP 455

Area 51.          LOT 2670

Unalienated Crown land

Area 52.          LOT 3203

Unalienated Crown land used for drainage purposes

Area 53.          LOT 3797

Unalienated Crown land

*Public work (whole)

Area 54.          LOT 4291

Unalienated Crown land
  *1/7/50 – 10/5/65 Partly within ML 442

Area 55.          LOT 4438

Unalienated Crown land

Area 56.          LOT 4442

Unalienated Crown land

*1/7/49 – 29/8/60 Wholly within ML 430
  *10/12/59 – 28/6/72 Wholly within SPL 59
  *2/9/69 – 5/2/80 Wholly within SPL 222

* Public work (part)

Area 57.          LOT 4619

Unalienated Crown land

Area 58.          LOT 4620

Unalienated Crown land

Area 59.          LOT 4621

Unalienated Crown land

Area 60.          LOT 4622
  Unalienated Crown land

Area 61.          LOT 4623

Unalienated Crown land

Area 62.          LOT 5153

Unalienated Crown land
  *1/7/54 – 30/6/75 Wholly within ML 503

s 47B applies   

Area 63.          LOT 5184

Unalienated Crown land

*1/7/54 – 31/7/59 Wholly within ML 434

*1/7/59 – Wholly within LTL 1593

Area 64.          LOT 5242

Reserve 1666 (Public Recreation)
  *1/7/52 – 30/6/71 Wholly within ML 482

*1/7/82 – 31/12/82 Wholly within TLSL 10

Area 65.          LOT 5569

Unalienated Crown land (Westland Park)
  *1/7/44 – 14/3/75 Wholly within AL 423

*1/7/81 – 13/7/81 Wholly within TLSL 9

Area 66.          Withdrawn from claim  

Area 67.          LOT 5767

Unalienated Crown land
  *1/7/50 – 10/5/65 Wholly within ML 442

Area 68.          LOT 5768

Unalienated Crown land
  *1/7/50 – 10/5/65 Wholly within ML 442

Area 69.          LOT 5769

Unalienated Crown land
  *1/7/50 – 10/5/65 Wholly within ML 442

Area 70.          LOT 5816

Unalienated Crown land
  *1/7/48 – 21/5/56 Partly within ML 394

s 47B applies

Area 71.          LOT 6449

Unalienated Crown land
  *1/1/20 – 31/12/40 Partly within ML 38

Area 72.          LOT 6453

Unalienated Crown land

Area 73.          LOT 6465

Unalienated Crown land
  *30/10/60 – 24/6/83 Wholly within SPL 82
  *27/3/83 Wholly within CLT 101

Area 74.          LOT 6742

Unalienated Crown land

Area 75.          LOT 6743

Unalienated Crown land

Area 76.          LOT 6744

Unalienated Crown land

Area 77.          LOT 7384 (Note 3)

Unalienated Crown land

*1/6/85 – 1/6/87 Wholly within CLT 411
  *Storm water channel

Area 78.          LOT 7385 (Note 3)

Unalienated Crown land

*1/6/85 – 1/6/87 Wholly within CLT 411

*Storm water channel

Area 79.          LOT 7386 (Note 3)

Unalienated Crown land
  *19/12/85 – 1/6/87 Wholly within CLT 511

*Storm water channel

Area 80. LOT 7393

Unalienated Crown land

Area 81. LOT 7411 (Note 4)

Unalienated Crown land

*Retardation dam

Area 82. LOT 7412 (Note 4)

Unalienated Crown land

*Retardation dam

Area 83. LOT 7413

Unalienated Crown land

Area 84. LOT 7417 (Note 3)

Crown land set aside for drainage, water supply and sewerage purposes  *Storm water channel

Area 85. LOT 7418 (Note 3)

Crown land set aside for drainage, water supply and sewerage purposes  *Storm water channel

Area 86. LOT 7422

Unalienated Crown land
  *1/7/59 – 21/5/62 Wholly within LTL 1598

*1/7/65 – 5/5/67 – Wholly within CTL 2061

Area 87. LOT 7466

Unalienated Crown land
  *1/1/20 – 31/12/40 Partly within ML 38

Area 88. LOT 7583

Unalienated Crown land

Area 89. LOT 7708

Unalienated Crown land

Area 90.          LOT 7709

Unalienated Crown land

Area 91.          LOT 7717

Unalienated Crown land
  *1/7/49 – 22/2/65 Wholly within ML 429

Area 92.          LOT 7727

Unalienated Crown land

Area 93.          LOT 7728

Unalienated Crown land set aside for Alice Springs Fire Station
  *Public work (whole)

Area 94.          LOT 7741

Unalienated Crown land

Area 95.          LOT 7742

Unalienated Crown land

Area 96.          LOT 7859

Unalienated Crown land
  *30/10/60 – 24/6/83 Wholly within SPL 82
  *27/3/83 Wholly within CLT 101

Area 97.          LOT 7862

Unalienated Crown land
  *1/7/54 – 30/6/75 Wholly within ML 503

Area 98.          LOT 7882

Unalienated Crown land

Area 99.          LOT 7925
  Unalienated Crown land
  *Public work (whole)

Area 100. LOT 7926

Unalienated Crown land
  *Public work (whole)
  *1/7/69 – 23/6/88 Wholly within CTL 2686

Area 101. LOT 8047

Unalienated Crown land

Area 102. LOT 8051

Unalienated Crown land

Area 103. LOT 8053

Unalienated Crown land

Area 104. LOT 8054 (Note 4)

Unalienated Crown land

*Retardation dam

Area 105. LOT 8063

Unalienated Crown land

Area 106. LOTS 8064 and 8471
  Unalienated Crown land
  *1/7/49 – 22/2/62 Partly within ML 429
  *1/7/50 – 10/5/65 Partly within ML 442
  *1/7/52 – 30/6/73 Partly within ML 483

Area 107. LOT 8065

Unalienated Crown land

*1/7/49 – 22/2/65 Wholly within ML 429

Area 108. LOT 8066

Unalienated Crown land
  *11/7/92 – 9/2/81 Partly within SPL 337

Area 109. LOT 8067

Unalienated Crown land (Teppa Hill)

Area 110. LOT 8068

Unalienated Crown land (Perta Hill) (Occupation Licence 3114)

Area 111. LOT 8069

Unalienated Crown land

Area 112. LOT 8070

Unalienated Crown land
  *1/7/50 – 10/5/67 Partly within ML 442

Area 113. LOT 8071 (Now lot 8071 and lot 8610)

Unalienated Crown land

*1/7/49 – 29/8/60 Wholly within ML 430

*10/12/59 – 28/6/72 Partly within SPL 58, balance within SPL 59
  *2/9/69 – 5/2/80 Partly within SPL 221, balance within SPL 222
  *2/9/96 – 1/3/98 lot 8610 wholly within CLT 1132

Area 114. LOT 8072

Unalienated Crown land

*1/7/49 – 29/8/60 Wholly within ML 430

*10/12/59 – 20/6/72 Wholly within SPL 59
  *2/9/69 – 5/2/80 Wholly within SPL 222

Area 115. LOT 8073

Unalienated Crown land
  *1/7/49 – 29/8/60 Wholly within ML 430
  *10/12/59 – 20/6/72 Wholly within SPL 59

*2/9/69 – 5/2/80 Wholly within SPL 222

Area 116. LOT 8074

Unalienated Crown land

Area 117. LOT 8075

Unalienated Crown land

Area 118. LOT 8076

Unalienated Crown land
  *1/7/50 – 10/5/65 Partly within ML 442

Area 119. LOT 8077

Unalienated Crown land

*1/7/50 – 10/5/65 Partly within ML 442

Area 120. LOT 8078

Unalienated Crown land (Occupation Licence 3116)

Area 121. LOT 8079

Unalienated Crown land

Area 122. LOT 8080

Unalienated Crown land
  *1/7/48 – 21/5/56 Partly within ML 394

s 47B applies             

Area 123. LOT 8081 (Now lot 8081 and lot 8712)

Unalienated Crown land.
*1/7/48 – 21/5/56 Wholly within ML 394
*1/10/94 – 30/9/98 lot 8712 wholly within CLT 1136
s 47B applies

Area 124. LOT 8082

Unalienated Crown land

Area 125. LOT 8083

Unalienated Crown

Area 126. LOT 8086

Unalienated Crown land

Area 127. LOT 8087

Unalienated Crown land

Area 128. LOT 8088

Unalienated Crown land

Area 129. LOT 8089

Unalienated Crown land

Area 130. LOT 8090

Unalienated Crown land

Area 131. LOT 8091

Unalienated Crown land

Area 132. LOT 8092

Unalienated Crown land

Area 133. LOT 8093

Unalienated Crown land

* Public work (part)

Area 134. LOT 8097

Unalienated Crown land

Area 135. LOT 8098

Unalienated Crown land

*1/7/40 – 12/7/55 Partly within ALs 499-504, 514, 515 and 522

s 47B applies

Area 136. LOT 8099

Unalienated Crown land

Area 137. LOT 8100

Unalienated Crown land

Area 138. LOT 8101

Unalienated Crown land
  *1/7/50 – 30/6/71 Partly within ML 456

*1/7/52 – 30/6/71 Partly within ML 482

s 47B applies

Area 139. LOT 8102

Unalienated Crown land (Occupation Licence 3102)

*1/7/52 – 30/6/71 Partly within ML 482

s 47B applies

Area 140. LOT 8103

Unalienated Crown land
  *1/7/52 – 30/6/71 Partly within ML 482
  s 47B applies

Area 141. LOT 8104

Unalienated Crown land

*1/1/20 – 31/12/40 Partly within ML 38

Area 142. LOT 8105 (Now lots 8163 – 8166)
  Unalienated Crown land
  *1/1/20 – 31/12/40 Partly within ML 38

s 47B applies

Area 143. LOT 8106

Unalienated Crown land
  *1/7/52 – 30/6/71 Wholly within ML 482
  s 47B applies

Area 144. LOT 8107

Unalienated Crown land

*1/7/50 – 30/6/71 Partly within ML 456
  *1/7/52 – 30/6/71 Partly within ML 482
  s 47B applies

Area 145. LOT 8108

Unalienated Crown land
  *1/7/52 – 30/6/71 Partly within ML 482

* Public work (part)

Area 146. LOT 8109

Unalienated Crown land
  *1/7/52 – 30/6/71 Partly within ML 482
  s 47B applies

Area 147. LOT 8110

Unalienated Crown land

Area 148. LOT 8111

Unalienated Crown land

Area 149. LOT 8112

Unalienated Crown land

Area 150. LOT 8113

Unalienated Crown land

Area 151. LOT 8114

Unalienated Crown land declared a protected area under Territory Parks and Wildlife Conservation Act (Alice Springs Sewerage Ponds)

Area 152. LOT 8115

Unalienated Crown land declared a protected area under Territory Parks and Wildlife Conservation Act (Alice Springs Sewerage Ponds)
*1/7/54 – 30/6/75 Partly within ML 503
s 47B applies

Area 153. LOT 8116

Unalienated Crown land
  *1/7/54 – 30/6/75 Wholly within ML 503
  s 47B applies

Area 154. LOT 8117

Unalienated Crown land

Partly within an area declared a protected area under Territory Parks and Wildlife Conservation Act (Alice Springs Sewerage Ponds)
*1/7/54 – 30/6/75 Partly within ML 503
s 47B applies

Area 155. LOT 8118

Unalienated Crown land
Partly within an area declared a protected area under Territory Parks and Wildlife Conservation Act (Alice Springs Sewerage Ponds)
*1/7/54 – 21/6/75 Partly within ML 503
s 47B applies

Area 156. LOT 8119

Unalienated Crown land

*1/7/50 – 9/4/65 Partly within ML 443

Area 157. LOT 8120

Unalienated Crown land used as an energy supply easement
  *30/10/60 – 24/6/83 Wholly within SPL 82

*27/3/83 Partly within CLT 101

Area 158. LOT 8121

Unalienated Crown land
  *30/10/60 – 24/6/83 Wholly within SPL 82

*27/3/83 Partly within CLT 101

Area 159. LOT 8122

Unalienated Crown land
  *27/3/83 – 16/4/86 Partly within CLT 104

Area 160. LOT 8123

Unalienated Crown land
  *14/3/86 – 16/4/86 Wholly within CLT 550

Area 161. LOT 8169

Unalienated Crown land

Area 162. LOT 8170

Unalienated Crown land

Area 163. LOT 8171

Unalienated Crown land

Area 164. LOT 8239

On 1/3/95 lot 8239 was amalgamated with lot 2655 to form
  a new lot 8542

*28/12/95 Freehold title granted to Airservices Australia.

Area 165. LOT 8240

Unalienated Crown land

Area 166. LOT 8287

Unalienated Crown land

Area 167. LOT 8288

Unalienated Crown land (Occupation Licence 3122 over part)

*1/7/43 – 14/9/65 Partly within ML 271
  s 47B applies

Area 168. LOT 8391

Unalienated Crown land set aside for extension to garbage dump

NOTE 1:The extent of the land which is subject to the application in area 33 is limited to that area of land which is satisfactory to the claimants to ensure the protection of the registered sacred site situated on that land.

NOTE 2:The extent of the land which is subject to the application in area 36 is limited to that area of land which is satisfactory to the claimants to ensure the protection of the registered sacred site situated on that land.

NOTE 3:The native title rights claimed over areas 77, 78, 79, 84 and 85 are such that they will not interfere with the current usage of that land as unlined storm water channelling.

NOTE 4:The native title rights claimed over areas 81, 82, and 104 are such that they will not interfere with the two retardation dams on that land.

I certify that this and the preceding

179 pages are a true copy of the
Reasons for Judgment of the
Honourable Justice Olney. 

Executive Assistant

Dated:             9 September 1999

Counsel for the applicants:                   Mr B. Keon-Cohen QC and later
  Mr J. Basten QC with (in each case)
  Mr R. Howie

Solicitor for the applicants:                   Mr C. Athanasiou, (Native Title Unit,
  Central Land Council).

Counsel for the first respondent:           Mr T. Pauling QC (Solicitor-General for the Northern Territory) with Ms R. Webb and Mr P. Walsh

Solicitor for the first respondent:           Solicitor for the Northern Territory

The other respondents did not appear

Heard (at Alice Springs):

1 – 4, 7 – 11, 14 – 18, 21 – 23 July 1997
           9 – 13, 16 – 19 February 1998
           2 - 6 March 1998, 26 – 27 October 1998
           8 – 9 February 1999.

Date of Judgment:  9 September 1999