Jango v Northern Territory

[2006] FCA 318

FEDERAL COURT OF AUSTRALIA

JOHNNY JANGO, JUDY TRIGGER, MANTATJARA WILSON, NGOI NGOI DONALD AND WINDLASS ALURTIJA

v

NORTHERN TERRITORY OF AUSTRALIA, GPT MANAGEMENT LIMITED AND
COMMONWEALTH OF AUSTRALIA

NTD 6023 of 1998

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a Summary to accompany the judgment that is to be delivered today.  However, it must be emphasised that the Summary forms no part of the judgment.  The only authoritative statement of the Court’s reasons is the judgment itself.

This Summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete.  The published Reasons for Judgment and this Summary will be available on the internet

Jango v Northern Territory of Australia [2006] FCA 318

1.          This is the first case in the Federal Court in which Aboriginal applicants have sought a determination of compensation as the result of extinguishment of native title over land.  The proceedings have been brought by the applicants under the Native Title Act 1993 (Cth) (‘NTA’) on behalf of the members of a ‘compensation claim group’.

2.        The applicants seek a determination in respect of the Town of Yulara in the Northern Territory (‘the Application Area’), which comprises an area of 104 square kilometres.  The members of the compensation claim group are almost exclusively Yankunytjatjara or Pitjantjatjara people who, according to the applicants, held native title rights and interests in the Application Area and are entitled to compensation because their rights and interests were extinguished by certain ‘compensation acts’ that occurred over the period 1979 to 1992.  The applicants say that the Northern Territory is liable under the NTA to pay compensation. 

3.        The Application Area incorporates the Yulara Tourist Village, which provides accommodation and other services for the tens of thousands of tourists who visit Ayres Rock (Uluru) and the Olgas (Kata Tjurta).  The Application Area also incorporates Connellan Airport, which is the point of arrival for tourists travelling by air to visit the area.

4.        The Application Area is located in the far south of the Northern Territory, just north of the South Australian border.  It is in the eastern part of a large area generally described as the Western Desert, which encompasses parts of South Australia, the Northern Territory and Western Australia.

5. The applicants say that they and their predecessors held native title, as defined in s 223(1) of the NTA, over the Application Area under the traditional laws and customs of the Western Desert bloc.  They say that native title has existed from the time the Crown asserted sovereignty over the eastern Western Desert in 1824 until the remaining native title rights and interests were extinguished by the compensation acts.

6.        It is agreed that the only acts prior to 1979 that could have extinguished any pre-existing native title rights and interests over the Application Area were two pastoral leases granted over the land in the late nineteenth century.  The applicants accept that the leases, both of which were determined after a short period, extinguished the most extensive native title rights and interests which had survived the acquisition of sovereignty by the Crown.  But they say, and I agree, that the pastoral leases left most native title rights and interests unaffected.

7.        The compensation acts which extinguished native title included grants of freehold and leasehold estates over some lots on the Application Area and the construction of public works, notably Connellan Airport, certain roads and a series of water bores.  The applicants say that the native title rights and interests were not necessarily extinguished at the time the compensation acts took place. Rather, their argument is that the extinguishment actually came about as a result of the operation of complicated provisions of the NTA and corresponding provisions of the Validation (Native Title) Act (NT).

8.        On the applicants’ case, native title over the Application Area was finally extinguished on 10 March 1994, the date the Validation Act came into force.  One consequence of the applicants having selected this date is that, if their arguments are accepted, members of the compensation claim group may be entitled to compensation for the value of improvements that were erected on the land before 1994.  These improvements, of course, include Connellan Airport.

9.        The Northern Territory and the Commonwealth (‘the respondents’) have raised many arguments in opposition to the applicants’ claims.  The respondents’ principal defence, however, is that the applicants have not established, on the evidence, that members of the compensation claim group held traditional native title rights or interests in the Application Area at the times the compensation acts occurred.  They say that it is essential to focus on the case actually pleaded in the Points of Claim and to which the applicants expressly adhered in final submissions.  On that basis, the respondents say that the applicants have failed to establish that members of the compensation claim group acknowledged and observed the laws and customs pleaded in the Points of Claim. 

10.      In any event, so the respondents argue, the laws and customs pleaded by the applicants have not been shown to be the traditional laws and customs of the Western Desert bloc for the purposes of s 223(1) of the NTA.  Accordingly, they say, the applicants have not made out an essential element of their claim to compensation.

11.      I have made the following findings on these crucial submissions:

(1)       In my opinion, the applicants have not shown, on the evidence, that the indigenous witnesses, or members of the compensation claim group, acknowledged and observed the laws and customs of the Western Desert bloc as pleaded in the Points of Claim.  Unfortunately for the applicants, the evidence does not reveal a consistent pattern of observance and acknowledgement of laws and customs relating to rights and interests in land.  In particular, the evidence does not support acknowledgement and observance of the particular set of laws and customs pleaded and relied on by the applicants.

My finding does not necessarily imply that none of the indigenous witnesses could make out a case that he or she is ngurraritja (traditional owner) for sites in the Uluru-Kata Tjurta area under laws and customs currently observed by people of the Western Desert.  My finding is that the applicants have not made out the particular laws and customs that they have chosen to plead and to rely on when presenting their case.

(2)       In any event, I am not satisfied that any laws and customs relating to rights and interest in land that may have been acknowledged and observed by the Aboriginal witnesses are the traditional laws and customs of the Western Desert bloc, within the meaning of s 223(1) of the NTA.  The evidence has not established that any laws and customs now observed and acknowledged are sufficiently related to those observed and acknowledged by people of the Western Desert at sovereignty.  In particular, I find that the traditional laws and customs of the Western Desert bloc followed a principle of patrilineal descent, which is largely absent from the practices described in the evidence.

12.      Either of these findings is sufficient to defeat the applicants’ claim for a determination of compensation.

13.      In the second part of the judgment I address the issues relating to extinguishment of native title that would have arisen had the applicants, contrary to my findings, succeeded on the threshold question.  On that assumption, I have concluded that the native title rights and interests of members of the compensation claim group would not have been validly extinguished prior to the compensation acts taking place, although some interests would have been extinguished by the pastoral leases granted in the nineteenth century. 

14.      Thus, if I had reached a different conclusion on the question of traditional laws and customs, at least some members of the compensation claim group would have been entitled to compensation.  However, contrary to the applicants’ submissions, I conclude that any such entitlement would have arisen at the time major construction works on the Application Area commenced.  Thus any compensation would not have included the value of any buildings or works subsequently completed on the Application Area.

15.      Finally I make this point.  I have addressed the compensation case the applicants have chosen to put forward.  My conclusions do not necessarily imply that none of the applicants, or members of the compensation claim group, could have established the existence of native title rights and interests over the Yulara Block before the compensation acts occurred, had their case been conducted differently.  I do not intend this comment as a criticism of the manner in which the applicants’ case was presented as there may be many reasons why they chose to present the case they did.  However, I am not entitled to consider some alternative or different case that the applicants might conceivably have advanced, perhaps on behalf of a smaller group of people.  I must consider the actual case presented on their behalf, which was the one the respondents were required to meet.

16.      The result is that the applicants have not established that the Territory is liable to pay compensation to any member of the compensation claim group.  The compensation application must therefore be dismissed.  I intend to give the parties an opportunity to make submissions on costs and any consequential orders that may be required.

Sydney

31 March 2006

FEDERAL COURT OF AUSTRALIA

Jango v Northern Territory of Australia [2006] FCA 318

NATIVE TITLE – compensation claim – applicants seek a determination of compensation for extinguishment of native title over the Town of Yulara in the Northern Territory (‘Application Area’) – any surviving native title rights and interests extinguished by grants of tenure and the construction of public works (‘compensation acts’) – separate trial on liability (if any) of the Northern Territory to pay compensation – Native Title Act 1993 (Cth) (‘NTA’), s 61(1)

NATIVE TITLE – whether applicants have established that native title rights and interests existed over Application Area at the time the compensation acts took place

NATIVE TITLE – whether Western Desert bloc is a ‘society’ having traditional laws and customs – whether the society continued in existence until the compensation acts occurred – whether the eastern Western Desert is a sub-region of the Western Desert

NATIVE TITLE – whether applicants have established that members of the compensation claim group acknowledged and observed the laws and customs pleaded by the applicants – whether the applicants have shown that the pleaded laws and customs are the ‘traditional’ laws and customs of the Western Desert bloc

NATIVE TITLE – extinguishment – effect of Northern Territory pastoral leases on native title – ‘previous non-exclusive possession acts’ – extent of inconsistency between native title rights and interests and the rights of pastoral lessees

NATIVE TITLE – extinguishment – whether any surviving native title rights and interests were validly extinguished before commencement of the NTA – whether grants of tenure and construction of public works were invalid to any extent – Racial Discrimination Act 1975 (Cth) (‘RD Act’), s 10(1)

NATIVE TITLE – extinguishment – effect of registration of Crown grants under the Torrens system – whether principle of indefeasibility applies to validate grants that would otherwise be invalid – whether registration of Crown grants has a discriminatory effect on native title under the law of the Northern Territory

NATIVE TITLE – extinguishment – construction of public works – whether effect of construction is to discriminate against native title holders by extinguishing native title – whether construction was invalid to any extent by reason of the RD Act

NATIVE TITLE – entitlement to compensation – ‘previous exclusive possession act’ which is also a ‘past act’ – whether entitlement arises under s 17 or s 23J of the NTA – when entitlement to compensation arises by reason of grants of tenure or construction of public works

Constitution, ss 51(xxxi), 51(xxix), 109, 122

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 3(1), 50(1)(a)
Evidence Act 1995 (Cth), s 79
Judiciary Act 1903 (Cth), s 78B
Native Title Act 1993 (Cth), ss 3, 6(1), 7, 10, 11, 13(2), 13A, 14, 15, 16, 17, 19, 20, 23A, 23B, 23C, 23D, 23DA, 23E, 23F, 23G, 23H, 23HA, 23I, 23J, 23JA, 45, 49, 50, 51, 53(1), 61, 62(3), 81, 82, 84(4), 94, 94A, 200(1), 213(2), 223, 225, 226, 228, 229, 230, 231, 232, 237A, 238, 239, 240, 248, 248A, 248B, 251D, 253, Pt 2 Div 2, Pt 2 Div 2B, Pt 2 Div 3, Pt 2 Div 5
Native Title Amendment Act 1998 (Cth), Table A, Sch 5, Items 6, 36
Northern Territory Acceptance Act 1910 (Cth), ss 7, 10
Northern Territory (Administration) Act 1910 (Cth), ss 4U, 4V, 4W, 13
Northern Territory (Self-Government) Act 1978 (Cth), ss 5, 6, 13, 31, 35, 50(1), 57
Racial Discrimination Act 1975 (Cth), ss 6, 10(1), 10(2)

Northern Territory (Self-Government) Regulations, reg 4
Federal Court Rules, O 29 r 2

Mining Act 1906 (NSW)

Northern Territory Crown Lands Act 1890 (SA)
Northern Territory Land Act 1872 (SA), ss 12, 74, 78, 93, 94, 95, 96, 97, 100
Northern Territory Land Act 1876 (SA), s 3
Real Property Act 1886 (SA), ss 25, 27, 39, 52, 69, 80, 86 191, 220(4)
Northern Territory Pastoral Regulations 1881 (SA), regs 2, 8

Mining Act 1978 (WA), s 123(2)
Transfer of Land Act 1893 (WA), ss 30, 68, 137

Control of Roads Act (NT), ss 8(1), 7
Control of Waters Act (NT)
Crown Lands Act 1931 (NT), ss 5, 14, 15(2), 93(2), 111
Crown Lands Act 1992 (NT), s 9(1)
Land Titles Act 2000 (NT)
Lands Acquisition Act 1978 (NT)
Planning Act 1979 (NT), s 99
Validation (Native Title) Act (NT) ss 3(2), 3A, 3B, 3C, 4, 4D, 5, 6, 8, 9, 9G, 9H, 9J, 9JA, 9JB, 9K, 9L, 9M, 9N, 9NA, 11, Pt 3, Pt 3A, Pt 3B, Pt 3C, Sch 1, Sch 2, Sch 3
Validation of Titles and Actions Act 1994 (NT)
Validation of Titles and Actions Amendment Act 1998 (NT)
Crown Lands Ordinance 1931 (NT), s 103
National Parks and Gardens Ordinance 1955 (NT), s 13

International Convention on the Elimination of All Forms of Racial Discrimination, art 5

Attorney-General (NT) v Ward (2003) 134 FCR 16 discussed
Bodney v Bropho (2004) 140 FCR 77 cited
Breskvar v Wall (1971) 126 CLR 376 cited
Browne v Dunn (1893) 6 R 67 cited
Bulstrode v Trimble [1970] VR 840 cited
Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 cited
Clissold v Perry (1904) 1 CLR 363 cited
Commonwealth v Yarmirr (2001) 208 CLR 1 followed
Daniel v Western Australia [2003] FCA 666 distinguished
De Rose v South Australia [2002] FCA 1342 discussed
De Rose v South Australia (2003) 133 FCR 325 followed
De Rose v South Australia (No 2) (2005) 145 FCR 290 followed
Dobbie v Davidson (1991) 23 NSWLR 625 cited
Elkington v Shell Australia Ltd (1993) 32 NSWLR 11 cited
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 cited
Fejo v Northern Territory (1998) 195 CLR 96 cited
Fejo v Northern Territory (1998) 152 ALR 477 cited
Frazer v Walker [1967] 1 AC 589 cited
Gerhardy v Brown (1985) 159 CLR 70 followed
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 cited
Jango v Northern Territory (No 2) [2004] FCA 1004 cited
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 cited
Kruger v Commonwealth (1996) 190 CLR 1 cited
Lardil Peoples v Queensland [2004] FCA 298 distinguished
Mabo v Queensland (1988) 166 CLR 186 followed
Mabo v Queensland (No 2) (1992) 175 CLR 1 discussed
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 followed
Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 discussed
Neowarra v Western Australia [2003] FCA 1402 distinguished
Newcrest Mining (WA) Ltd v Commonwealth (1996) 190 CLR 513 cited
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Group (2005) 145 FCR 442 followed
Paulette v The Queen [1977] 2 SCR 628 cited
Precision Plastics Pty Ltdv Demir (1975) 132 CLR 362 cited
Saraswati v The Queen (1991) 172 CLR 1 cited
Skeetschestn Indian Band v British Columbia (Registrar of Land Titles) [2001] 1 CNLR 310 cited
Uukw v British Columbia (1987) 37 DLR (4^th) 408 cited
Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 discussed
Western Australia v Commonwealth (1995) 183 CLR 373 followed
Western Australia v Ward (2002) 213 CLR 1 followed
Wik Peoples v Queensland (1996) 187 CLR 1 discussed
Williams v State Transit Authority of NSW (2004) 60 NSWLR 286 cited
Wilson v Anderson (2002) 213 CLR 401 followed
Yarmirr v Northern Territory (1998) 82 FCR 533 discussed

J D Heydon, Cross on Evidence (6^th Aust ed, 2000)
D Pearce and R Geddes, Statutory Interpretation in Australia (5^th ed, 2001)

Report of the Aboriginal Land Commissioner (Maurice J), Lake Amadeus Land Claim (Report No 28, 1989)
Report of the Aboriginal Land Commissioner (Toohey J), Uluru (Ayers Rock) National Park and Lake Amadeus/Luritja Land Claim (Report No 4, 1980)

R M Berndt, ‘Tribal Migrations and Myths Centring on Ooldea, South Australia’ (1941) 12 Oceania 1
R M Berndt, ‘The Concept of the Tribe in the Western Desert of Australia’ (1959) 30 Oceania 81
J C Carruthers, Triangulation of NW Portion of South Australia (SA Parl Pap 179, 1892)
W H Edwards, ‘Patterns of Aboriginal Residence in the North-West of South Australia’ (1992) 30 Journal of the Anthropological Society of South Australia 2
A P Elkin, ‘The Social Organization of South Australian Tribes’ (1931) 2 Oceania 44
A P Elkin, ‘Kinship in South Australia’ (1939) 10 Oceania 196
A P Elkin, ‘Kinship in South Australia’ (1940) 10 Oceania 295
E Giles, Geographic Travels in Central Australia From 1872 to 1874 (1875)
E Giles, Australia Twice Traversed: The Romance of Exploration (1889)
A Glass, Cohesion in Ngaanyatjarra Discourse (Summer Institute of Linguistics, 1997)
A Hamilton, ‘Descended from Father, Belonging to Country: Rights to Land in the
Australian Western Desert’ in E Laycock and R Lee (eds), Politics and History in Band Societies (1982)
D Mackay, ‘The Mackay Exploring Expedition, Central Australia, 1926’ (1929) 73 Geographical Journal 258
M H McLelland, ‘Colonial and State Boundaries in Australia’ (1971) 45 ALJ 671
N D Munn, A Report on Field Research at Areyonga 1964-1965 (1965)
F R Myers, Pintupi Country, Pintupi Self: Sentiment, Place and Politics among Western Desert Aborigines (Australian Institute of Aboriginal Studies, 1986)
W B Spencer (ed), Report on the Work of the Horn Scientific Expedition to Central Australia (1896)
B Spencer and F J Gillen, Across Australia (1912), vol 1
P M Sutton, Native Title in Australia: An Ethnographic Perspective (2003)
W H Tietkins, Journal of the Central Australian Exploring Expedition, 1889 (1891)
N B Tindale, ‘Preliminary Report on Fieldwork Among the Aborigines of the North West of South Australia’ (1933) 4 Oceania 99
N B Tindale, ‘Totemic Beliefs in the Western Desert of Australia’ (1957) 13 Records of the South Australian Museum 305
N B Tindale, ‘Totemic Beliefs in the Western Desert of Australia – Part I’ (1959) 13 Records of the South Australian Museum 305
N B Tindale, ‘The Pitjandjara’ in MG Bicchieri (ed), Hunters and Gatherers Today (1972)
N B Tindale, Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution, Limits and Proper Names (Uni of California, 1974)

JOHNNY JANGO and ORS v NORTHERN TERRITORY OF AUSTRALIA and ORS
NTD 6023 of 1998

SACKVILLE J
31 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NTD 6023 of 1998

BETWEEN:

JOHNNY JANGO, JUDY TRIGGER, MANTATJARA WILSON, NGOI NGOI DONALD AND WINDLASS ALURTIJA
APPLICANTS

AND:

NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

GPT MANAGEMENT LIMITED
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

31 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicants be granted leave to amend par B1.8 of the Third Further Amended Points of Claim, subject to the qualifications referred to in pars 237, 238 and 239 of the Judgment herein.

2. The application for determination of compensation be dismissed.

3. The first and second respondents file brief written submissions within 14 days on costs and on such further orders (if any) they seek in the proceedings.

4. The applicants file brief written submissions within a further 14 days in response to the respondents’ submissions.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NTD 6023 of 1998

BETWEEN:

JOHNNY JANGO, JUDY TRIGGER, MANTATJARA WILSON, NGOI NGOI DONALD AND WINDLASS ALURTIJA
APPLICANTS

AND:

NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

GPT MANAGEMENT LIMITED
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:	SACKVILLE J
DATE:	31 MARCH 2006
PLACE:	SYDNEY

TABLE OF CONTENTS

Par

1.        THE PROCEEDINGS	1
2. SECTION 78B NOTICES	20
3.        TRANSITIONAL PROVISIONS	23
4.        THE GENERAL SCHEME OF THE NTA	29
5.        THE COMPENSATION REGIME UNDER THE NTA	39
5.1      PART 2, DIVISION 1	40
5.2      PART 2, DIVISION 2	42
5.3      PART 2, DIVISION 2B	50
5.4      PART 2, DIVISION 4	54
5.5      PART 2, DIVISION 5	56
5.6      PART 4, DIVISION 3	62
6.        THE VALIDATION AND EXTINGUISHMENT PROVISIONS OF THE NTA AND THE VALIDATION ACT	65
6.1      THE VALIDATION REGIME UNDER THE NTA	65
6.2      THE VALIDATION REGIME UNDER THE VALIDATION ACT	73
6.3      THE NTA EXTINGUISHMENT REGIME FOR VALID OR        VALIDATED ACTS	79
6.3.1        Previous Exclusive Possession Acts	80
6.3.2        Previous Non-Exclusive Possession Acts	86
6.4      THE TERRITORY EXTINGUISHMENT REGIME FOR VALID OR VALIDATED ACTS	93
6.4.1        Previous Exclusive Possession Acts	93
6.4.2        Previous Non-Exclusive Possession Acts	99
7.        RACIAL DISCRIMINATION ACT 1975 (CTH)	101
8.        A CHRONOLOGY OF EVENTS	106
8.1      SOVEREIGNTY	107
8.2      THE ERA OF EXPLORATION	110
8.3      THE FIRST HALF OF THE TWENTIETH CENTURY	124
8.4      THE PARK AND THE DEVELOPMENT OF TOURISM	136
8.5      SITE CLEARANCE AND HANDBACK	152
9.        THE APPLICANTS’ CASE ON NATIVE TITLE: THE PLEADINGS	165
9.1      THE NATIVE TITLE HOLDERS	166
9.2      THE WESTERN DESERT PEOPLE	171
9.3      THE LAWS AND CUSTOMS GOVERNING NATIVE TITLE	174
9.4      THE TJUKURRPA	180
9.5      OTHER LAWS AND CUSTOMS	182
9.6      THE RIGHTS AND INTERESTS THAT WERE EXTINGUISHED	183
9.7      CONNECTION WITH THE APPLICATION AREA	187
9.8      OTHER MATTERS	190
10.      THE APPLICANTS’ CASE ON NATIVE TITLE: THE SUBMISSIONS	191
10.1     PRINCIPLES GOVERNING NATIVE TITLE	192
10.2     THE CLAIMANTS’ SOCIETY	194
10.3     ARNANGU LAWS AND CUSTOMS	196
10.3.1      Tjukurrpa	200
10.3.2      Social Organisation	201
10.3.3      Relationship with Country	202
10.3.4      Ngurraritja	203
10.3.5      Claimants are a ‘Person-Set’	206
10.3.6      Language Identification	207
10.4     BASIS FOR HOLDING RIGHTS IN COUNTRY	208
10.4.1      The Written Submissions	208
10.4.2      The Final Formulation	216
10.5     THE COMPENSATION CLAIM GROUP	225
10.6     THE NATIVE TITLE RIGHTS AND INTERESTS CLAIMED BY THE APPLICANTS	241
10.6.1      Nature of the Rights and Interests	241
10.6.2      Interests under Traditional Laws and Customs	246
10.6.3      Connection with the Application Area	247
11.      THE COMMONWEALTH’S SUBMISSIONS ON NATIVE TITLE	250
12.      THE TERRITORY’S SUBMISSIONS ON NATIVE TITLE	263
13.      AN OVERVIEW OF THE APPLICANTS’ EVIDENCE	271
13.1     THE INDIGENOUS WITNESSES	271
13.2     DR JON WILLIS	276
13.3     NON-INDIGENOUS LAY WITNESSES	281
13.4     THE EXPERTS	284
13.5     THE RELATIONSHIP BETWEEN THE INDIGENOUS AND EXPERT EVIDENCE	287
14.      AN OVERVIEW OF THE COMMONWEALTH’S EVIDENCE	302
15.      THE EXPERT REPORTS	304
I5.1     THE SUTTON REPORT	304
15.2     MS VAARZON-MOREL’S REPORT	339
16.      REASONING ON THE WESTERN DESERT BLOC	343
16.1     THE WESTERN DESERT CULTURAL BLOC: AN ANTHROPOLOGICAL CONSTRUCT?	345
16.1.1      Professor Sutton’s Views	345
16.1.2      The Evidence	348
16.2     DID THE WESTERN DESERT CULTURAL BLOC CONTINUE IN EXISTENCE AS A SOCIETY?	353
16.2.1      The Principles: Yorta Yorta (HC)	353
16.2.2      Continuity of the Society	354
16.3     THE EFFECT OF MIGRATION WITHIN THE WESTERN DESERT	367
16.4     THE EASTERN WESTERN DESERT	379
16.4.1      Professor Sutton’s Analysis	379
16.4.2      The Aboriginal Evidence	384
16.4.3      Conclusion	389
17.      REASONING ON NATIVE TITLE: TRADITIONAL LAWS AND CUSTOMS	391
17.1     THREE ISSUES	391
17.2     THE NORMATIVE QUESTION	393
17.3     THE LAWS AND CUSTOMS DESCRIBED IN THE EVIDENCE	398
17.3.1      A Lack of Congruence: The Pleaded Case and Proposition 7	398
17.3.2      The Applicants’ Approach	402
17.3.3      The Evidence	405
17.3.3.1  Indigenous Witnesses	410
17.3.3.2  Dr Willis’ Evidence	433
17.3.3.3  Identification of Ngurraritja	438
17.3.4      The Applicants’ Pleaded Case is Not Made Out	440
17.4     THE CONCEPT OF TRADITIONAL LAWS AND CUSTOMS	452
17.5     ARE THE LAWS AND CUSTOMS TRADITIONAL?	460
17.5.1      A Difficulty with the Expert Evidence	462
17.5.2      The Scope of the Expert Evidence	465
17.5.3      The Reworking of Tindale’s Data	475
17.5.4      The Anthropological Evidence	477
17.5.5      Conclusions	497
17.5.5.1  Patrilineal Descent and Clusters of Sites	497
17.5.5.2  In Any Event, the Laws and Customs Are Not   Traditional	502
18.      TWO SUBSIDIARY ISSUES	508
18.1     THE 1974 SITE CLEARANCE	508
18.2     THE KUNGKA KUTJARRA SITE	515
19.      THE PASTORAL LEASES	521
19.1     THE PROVISIONS OF THE LEASES	524
19.1.1      PL 456	524
19.1.2      PL 1804	533
19.2     THE EFFECT OF THE LEASES: COMMON GROUND	536
19.3     THE EFFECT OF THE LEASES: SUBMISSIONS	541
19.3.1      The Applicants’ Submissions	541
19.3.2      The Commonwealth’s Submissions	545
19.4     REASONING	550
19.4.1      The Legislation	550
19.4.2      The Authorities	552
19.4.3      The Application of Principles	565
20.      THE TENURE HISTORY: FROM 1976	572
20.1     GRANTS OF TENURE	574
20.2     PUBLIC WORKS	591
20.2.1      Connellan Airport	592
20.2.2      The Bores	594
20.2.3      Lasseter Highway	595
20.2.4      Roads	597
21.      THE APPLICANTS’ CASE ON EXTINGUISHMENT	602
21.1     THE PLEADINGS	602
21.2     THE APPLICANTS’ SUBMISSIONS ON EXTINGUISHMENT	603
21.2.1      Overview	603
21.2.2      Connellan Airport	611
21.2.3      Construction of the Bores	619
21.2.4      Construction of the Roads	621
22.      THE RESPONDENTS’ CASE ON EXTINGUISHMENT	628
22.1     THE TERRITORY’S SUBMISSIONS	628
22.2     THE COMMONWEALTH’S SUBMISSIONS	634
22.2.1      Overview	634
22.2.2      Public Works	640
22.2.2.1  Connellan Airport	640
22.2.2.2  The Bores	648
22.2.2.3  The Roads	649
22.2.3      Grants of Tenure	653
22.2.3.1  CL 256	653
22.2.3.2  Fee Simple Grants Over Lots 127 and 130-131 to Yulara Nominees (20 December 1984)	656
22.2.3.3  Fee Simple Grant Over Lot 237 to Resort Nominees (26 June 1992)	658
22.2.3.4  Fee Simple Grants After the Construction of Public Works	659
23.      OPERATION OF THE RD ACT	660
24.      REGISTRATION OF TITLE UNDER THE REAL PROPERTY ACT	675
24.1     THE COMMONWEALTH’S SUBMISSIONS ON INDEFEASIBILITY	675
24.2     THE APPLICANTS’ RESPONSE ON INDEFEASIBILITY	680
24.3     REASONING ON INDEFEASIBILITY OF TITLE	683
24.3.1      The Approach of Callinan J in Ward (HC)	683
24.3.2      The Effect of the Real Property Act	690
25.      REASONING: PUBLIC WORKS AND EXTINGUISHMENT	706
25.1     THE SELF-GOVERNMENT ACT AND REGULATIONS	707
25.2     COMMON GROUND	715
25.3     APPLICATION OF PRINCIPLES	721
25.3.1      The Invalidity of the Public Works	721
25.3.2      Roads	737
26.      REASONING: THE TIMING OF EXTINGUISHMENT	741
26.1     PAST ACTS AND PREVIOUS EXCLUSIVE POSSESSION ACTS	743
26.1.1      A Preliminary Question of Construction	744
26.1.2      The Compensation Acts	747
26.1.3      The Legislative History	750
26.1.4      The Relationship Between Div 2 and Div 2B	763
26.2     AN ACCRUED RIGHT TO COMPENSATION?	775
26.3     THE CONSTITUTIONAL VALIDITY OF THE NTA, S 23E	778
27.      SUMMARY ON EXTINGUISHMENT AND COMPENSATION	783
28.      CONCLUSION	788

IN THE FEDERAL COURT OF AUSTRALIA
N EW SOUTH WALES DISTRICT REGISTRY	NTD 6023 of 1998

BETWEEN:

JOHNNY JANGO, JUDY TRIGGER, MANTATJARA WILSON, NGOI NGOI DONALD AND WINDLASS ALURTIJA
APPLICANTS

AND:

NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

GPT MANAGEMENT LIMITED
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:	SACKVILLE J
DATE:	31 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1.        THE PROCEEDINGS

1 In these proceedings, five members of a ‘compensation claim group’ seek a determination of compensation on behalf of members of the group, pursuant to s 61(1) of the Native Title Act 1993 (Cth) (‘NTA’).  The determination is sought in respect of a block of 104 square kilometres (10,400 hectares), which was constituted as the Town of Yulara in the Northern Territory by a proclamation made on 29 July 1976 and published in the Gazette on 10 August 1976 (the ‘Application Area’).  The members of the compensation claim group are almost exclusively Yankunytjatjara or Pitjantjatjara people who, according to the applicants, held native title rights and interests in the Application Area and are entitled to compensation by reason of the extinguishment of those rights and interests.

2  The proceedings were commenced on 12 June 1997 by six applicants, one of whom has since died.  The applicants concede that one of the five remaining applicants, Mantatjara Wilson, does not satisfy the criteria for holding native title rights in the Application Area.

3  The Application Area incorporates the Yulara Tourist Village, which provides accommodation and other services for the tens of thousands of tourists who visit Ayres Rock (Uluru) and the Olgas (Kata Tjurta).  (The spelling of Kata Tjurta varies; I have adopted this form rather than Kata Tjuta, except where the latter is used in a name, such as the Uluru-Kata Tjuta National Park.)  The Application Area also incorporates Connellan Airport, which is the point of arrival for tourists travelling by air to visit the area.

4  The Application Area is located in the far south of the Northern Territory, just north of the South Australian border.  It is in the eastern part of a large area generally described as the Western Desert, which encompasses northern parts of South Australia, southern parts of the Northern Territory and eastern parts of Western Australia. 

5  Because the Application Area is ‘land in a town’ it has not been available for a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘Land Rights Act’): see s 50(1)(a) and the definition of ‘unalienated Crown land’ in s 3(1). The Application Area is bounded on three sides by land held by the Katiti Aboriginal Land Trust, pursuant to a grant made under the Land Rights Act.  On the south, it abuts the Uluru-Kata Tjuta National Park, which includes within its boundaries Uluru and Kata Tjurta.  The location of the Application Area is shown on Map 1 by reference to Uluru and Kata Tjurta.  The precise co-ordinates are recorded in the proclamation constituting the Town of Yulara.  Map 2 is a Tenure Map which shows, among other things, the current location of the Yulara Tourist Village, the Lasseter Highway and Connellan Airport (Lot 101) within the Application Area, together with lot numbers.

6  No native title determination has been made in relation to the whole or any part of the Application Area.  There is no dispute that all native rights and interests that otherwise might have existed over the Application Area have been extinguished, although the parties disagree as to whether any native title rights and interests existed at the relevant times and, if they did, precisely when and how the extinguishment took place.  It is agreed, however, that the acts extinguishing native title were, in the language of the NTA, ‘acts attributable’ to the Northern Territory.  The applicants seek compensation from the Northern Territory in respect of the acts extinguishing native title rights and interests over the Application Area (the ‘compensation acts’).  They do so on behalf of holders of native title rights and interests who were alive when the various compensation acts took place. 

7 The applicants accept that native title rights and interests over the Application Area were extinguished as the result of the compensation acts, which took place from 1979 to 1992. These acts included grants of freehold and leasehold estates over parts of the Application Area and the construction of public works on the Application Area, notably Connellan Airport, certain roads and a series of water bores. On the applicants’ case, native title rights and interests were not necessarily extinguished by the compensation acts themselves when they were done, but in consequence of the provisions of the NTA and of the Validation (Native Title) Act (NT) (‘Validation Act’).  (The latter comprises the Validation of Titles and Actions Act 1994 (NT), as subsequently amended, and was enacted by the Legislative Assembly of the Northern Territory under the authority of the NTA.)  The applicants say that until the statutory extinguishment, the members of the compensation claim group held native title rights and interests over the Application Area under the traditional laws and customs of the Western Desert bloc observed and acknowledged by them.  They contend say that members of the compensation claim group are entitled to compensation under the NTA in respect of the extinguishment of their native title rights and interests.  The applicants characterise the claim as a group claim, the group comprising those who are able to establish that they held native title rights and interests immediately prior to the extinguishment of those rights and interests by the compensation acts.

8  The cornerstone of the applicants’ case is that they and their predecessors held native title rights and interests over the Application Area under the traditional laws and customs of the Western Desert bloc, from before the time the Crown asserted sovereignty until the time the compensation acts extinguished native title.  It is common ground that the only acts prior to 1979 that could have extinguished any subsisting native title rights and interests over the Application Area were two pastoral leases granted over the land, respectively, in 1882 and 1896.  The applicants accept that the leases (both of which were determined after a short period) extinguished the most extensive of the native title rights and interests which survived the acquisition of sovereignty over the area by the Crown in 1824 or 1825.  They contend, however, that the pastoral leases left most native rights and interests unaffected.

9  It is no part of the applicants’ case that the claimants themselves are a cohesive or discrete community.  They rely on the traditional laws and customs of the Western Desert bloc to which they say they adhere.  They contend that the people of the Western Desert can be regarded as a society with traditional laws and customs that have remained intact and have been observed since sovereignty.  The applicants say that those traditional laws and customs apply to the people of the eastern Western Desert, of which the Application Area forms part.

10  The evidence adduced by the applicants did not appear to be directed at establishing the existence of native title rights and interests at any particular date.  For the most part, the evidence did not distinguish between the position at the date of the trial and the position at any particular earlier date.  In final submissions, it became clear that the applicants’ preferred position is that, generally speaking, the native title rights and interests over the Application Area were extinguished on 10 March 1994, the date the Validation Act came into force, and that, accordingly, the claim group’s right to compensation accrued on that date. One consequence of selecting this date is that, if the applicants’ arguments are accepted, members of the compensation claim group are entitled to compensation for the improvements erected on the Application Area before 1994. These improvements presumably include Connellan Airport, the construction of which was completed in 1981.

11  Later in this judgment I explain the compensation regime established by the NTA.  It is enough at this stage to note that the Court has jurisdiction to determine a compensation application: NTA, ss 50(2), 61(1), 81, 213(2).

12  The applicants seek compensation from the Northern Territory, the first respondent to the proceedings (‘the Territory’) (see NTA, s 84(4)). They do not seek relief against the third respondent (‘the Commonwealth’). However, it appears that the Commonwealth has a practical interest in the proceedings, because it has agreed to provide financial assistance to the Territory to enable it to satisfy any liability to pay compensation for acts affecting native title: see NTA, s 200(1). In any event, the Commonwealth has been a party to the proceedings and has played an active role throughout, without objection from the applicants.

13  The second respondent (‘GPT’) has interests in the Application Area as a freeholder and leaseholder.  The applicants seek no relief against GPT and it has not played an active part in the proceedings.  Accordingly, when I refer to ‘the respondents’ in this judgment I intend, unless the context indicates otherwise, to refer only to the Territory and the Commonwealth.

14 Although the respondents raise many issues, their primary submission is that, regardless of the dates of the compensation acts relied on by the applicants, they have failed to establish that members of the compensation claim group held traditional native rights or interests in the Application Area when the compensation acts occurred. They say that it is essential to focus on the case pleaded by the applicants in the Third Further Amended Points of Claim (‘Points of Claim’), to which the applicants adhered in final submissions. On that basis, the respondents contend that the applicants have not established that members of the compensation claim group acknowledged and observed the traditional laws and customs pleaded in the Points of Claim. In any event, the respondents contend that the laws and customs so pleaded have not been shown to be the traditional laws and customs of the Western Desert bloc, as required by s 223(1) of the NTA. 

15  In addition, the respondents dispute many of the applicants’ contentions relating to extinguishment of native title by reason of the compensation acts.  They do so on the assumption (contrary to their primary submissions) that the applicants can establish that they held native title rights and interests in the Application Area in accordance with the traditional laws and customs of the Western Desert bloc when the various compensation acts took place.  The respondents submit that, even on that assumption, the applicants’ claim for compensation must fail.  Although the arguments of the Commonwealth and the Territory are not identical, they say that native title rights and interests were extinguished prior to the NTA coming into force, in circumstances not giving rise to any rights to compensation under the NTA.  In the alternative, they say that the extinguishment of native title is taken to have occurred earlier than the applicants suggest and that, therefore, members of the compensation claim group are not entitled to compensation for the value of buildings or works constructed on the Application Area.

16 This judgment is not concerned with the amount of compensation payable to, or for the benefit of, members of the compensation claim group, should the applicants’ claim ultimately succeed. An order was made in the proceedings, pursuant to the Federal Court Rules (‘FCR’), O 29 r 2:

‘that the trial of issues relating to the liability (if any) to pay compensation under the [NTA] and the determination of what (if any) native title rights existed in the claim area before the alleged extinguishing acts be heard and determined separately from and before the trial of issues relating to the quantum of compensation to be awarded if such liability is established’.

17  To prevent duplication in the taking of evidence, the orders also provided that lay evidence as to the impact or effect of the alleged extinguishing acts upon the compensation claim group should be given at the trial on the issues relating to liability.  Although that evidence has been received, this judgment does not make findings concerning the impact of the compensation acts on individual members of the compensation claim group.

18 In his final submissions, Mr Basten QC, who appeared with Mr Parsons SC, Ms Keely and Mr Blowes for the applicants, emphasised that although the applicants seek compensation on behalf of the compensation claim group, they had not yet made a final decision as to whether they wish to press for monetary compensation. Mr Basten pointed out that s 51(6) of the NTA permits a person claiming to be entitled to compensation to request that the whole or part of the compensation should consist of the transfer of property or the provision of goods or services.  In such a case, the Court may recommend that the person liable to pay compensation transfer property or provide goods or services in accordance with the recommendation.

19  The applicants’ written submissions state that at this stage of the litigation, assuming they succeed, they are not asking the Court to identify each person entitled to compensation.  The applicants say that they would be satisfied with a description of the class or classes of persons who are entitled to compensation, framed with reference to the particular laws and customs of the eastern Western Desert.  However, in final submissions, Mr Basten applied to amend the pleadings to incorporate an alternative case whereby the compensation claim group consists of a number of identified persons.  I deal with that application later (section 10.5, below).

2. SECTION 78B NOTICES

20 The Commonwealth issued notices under s 78B of the Judiciary Act 1903 (Cth), on the ground that the proceedings present matters arising under the Constitution or involving its interpretation.  The matters were said to arise because of the applicants’ arguments that:

· the extinguishment of native title over the Application Area by the construction of public works, the grant of a fee simple estate or of a Crown lease constituted an acquisition of property otherwise than on just terms, in contravention of s 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth) (‘Self-Government Act’);

·    insofar as the Real Property Act 1886 (SA) (‘Real Property Act’), as in force in the Northern Territory, conferred an indefeasible title on the registered proprietors which operated to defeat pre-existing unregistered interests in the land (including native title), it was a law with respect to the acquisition of property otherwise than on just terms, contrary to s 50(1) of the Self-Government Act; and

· s 23E of the NTA, which leaves open the field to the States and Territories to confirm the extinguishment of native title by ‘previous exclusive possession acts’ attributable to the State or Territory, would be constitutionally invalid if it operated to extinguish the pre-existing right to compensation created by s 20 of the NTA.

21 I doubt whether the arguments founded on s 50(1) of the Self-Government Act present matters arising out of the Constitution or involving its interpretation. The mere fact that s 50(1) of the Self-Government Act is expressed in similar terms to s 51(xxxi) of the Constitution would not seem to raise a question involving the interpretation of the Constitution.  As events transpired, the third argument was not developed in any detail.

22  Whether or not they were necessary, the notices were duly served. No Commonwealth, State or Territory Attorney-General sought to intervene in the proceedings.

3.        TRANSITIONAL PROVISIONS

23  The native title compensation application was lodged with the Native Title Registrar on 12 June 1997.  This was well before the commencement, on 30 September 1998, of certain provisions of the Native Title Amendment Act 1998 (Cth) (‘NTAA 1998’) which amended the NTA in important respects. 

24 Section 61(1) of the NTA, as it stood in 1997, provided that a compensation claim under s 50(2) of the NTA could be made to the Native Title Registrar by:

‘[a] person or persons claiming to be entitled to the compensation either
alone or with others’.

Section 61(3) stated that an application made by persons claiming to be entitled, with others, to compensation had to describe or otherwise identify those persons, but did not have to name them or say how many there were. Section 50(2) of the NTA at that time provided that an application could be made to the Native Title Registrar under Part 3 for a determination of compensation.

25  The NTAA 1998 amended the NTA to provide that an application for a determination of compensation under Part 3 of the NTA could be made to the Federal Court. Section 61(1) of the NTA was amended to provide that a compensation application under s 50(2) can be made (relevantly) by:

‘[a]person or persons authorised by all the persons (the compensation claim group) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group’.

Section 61(4), as amended, requires a compensation application to name the persons authorising the claim, or to describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those authorising the claim.

26  The NTAA 1998 contains transitional provisions addressing the case where a compensation application has been lodged before the amending legislation commenced, but not resolved by that time.  The effect of these provisions is that an application notified to the Native Title Registrar before the date of commencement ‘is taken to have been made to the Federal Court’ and ‘ is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act’: NTAA 1998, Table A, Sched 5, Items 6, 36.

27 The applicants filed an amended application on 1 September 2003 (the ‘Application’). The Application states, in apparent compliance with s 61(1) of the NTA (as amended), that the applicants were authorised by the compensation claim group to make the compensation application. Some affidavit evidence was apparently directed to establishing this proposition, presumably in purported compliance with s 62(3) of the NTA (which now requires a compensation application authorised by a compensation claim group to be accompanied by an affidavit attesting to certain matters).

28  However, a Full Court of this Court has held that the transitional provisions of the NTAA 1998 do not require a claim made before the commencement of that Act to comply with the new authorisation requirements, at least in the absence of a material change in the composition of the compensation claim group: Bodney v Bropho (2004) 140 FCR 77, at [84], per Stone J; De Rose v South Australia (2003) 133 FCR 325 (‘De Rose (FC) (No 1)’), at [26]-[28], per curiam. The respondents do not suggest that the Application changed the compensation claim group in a manner that required the applicants to comply with s 61(1) and s 61(3) of the NTA (as amended). Nor has any suggestion been made that the applicants’ attempt in final submissions to further amend the Points of Claim requires compliance with s 61(1) and s 00061(3) of the NTA. Accordingly, no issue arises concerning authorisation of the compensation claim.

4.        THE GENERAL SCHEME OF THE NTA

29  The preamble to the NTA contains what a Full Court of this Court has recently described as the ‘moral foundation’ on which the legislation rests: Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Group (2005) 145 FCR 442 (‘Alyawarr Case’), at [63]. The preamble recites the factors that led Parliament to enact the NTA.  These include the following:

·    the Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement;

·    they have been progressively dispossessed of their lands, largely without compensation; and

·    as a consequence, they have become, as a group, the most disadvantaged in Australian society.

30  The intention of the people of Australia is said to be:

‘(a)to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b)to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.’

31  The Court in the Alyawarr Case observed (at [63]) that the legislative intention to recognise, protect and support native title stands despite the inclusion in the NTA of substantive provisions which are adverse to native title rights and interests and indeed provide for their extinguishment and for the validation of past acts.  The competing policies are reflected in the objects of the NTA, stated in s 3 as follows:

‘The main objects of this Act are:

(a)to provide for the recognition and protection of native title; and

(b)to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

(c)to establish a mechanism for determining claims to native title; and

(d)to provide for, or permit, the validation of past acts … invalidated because of the existence of native title.’

32 The competing policies are also reflected in the terms of s 7 of the NTA. Section 7(1) states that the NTA is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975 (Cth) (‘RD Act’). Section 7(3) qualifies this statement, however, by providing that s 7(1) does not affect the validation of past acts in accordance with the NTA.

33  Native title is recognised and protected in accordance with the NTA: s 10.  Section 11, which was described in Commonwealth v Yarmirr (2001) 208 CLR 1 (‘Yarmirr (HC)’), at [7], as perhaps the most important of the NTA’s protection provisions, provides that:

‘native title is not able to be extinguished contrary to this Act.’

34  In Western Australia v Commonwealth (1995) 183 CLR 373 (‘Native Title Act Case’), the High Court observed (at 453) that s 11 removes the vulnerability of native title to:

‘defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title.’

However, the Court also said (at 454) that an:

‘act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act.  Such an act neither needs nor is given force and effect by the Act’.

This comment suggests that s 11(1) is intended to have a prospective effect only, a view supported by the Court’s observation (at 468) that the effect of the provision is that:

‘any future State law which purports to extinguish native title contrary to the Act is inoperative by reason of s 109 of the Constitution’.  (Emphasis added.)

35  The Native Title Act Case was decided before the NTA was extensively amended in 1998. The amendments include the insertion of Div 2B of Part 2 into the legislation, which provides for confirmation of past extinguishment of native title. In its original form, s 11(2) provided that legislation enacted after 1 July 1993 by the Commonwealth, a State or a Territory, could only extinguish native title in accordance with Div 3 of Part 2 (which deals with future acts) or by validating past acts in relation to native title. Following the 1998 amendments, s 11(2) provides that legislation enacted in accordance with Div 2B of Part 2 of the NTA is one of the permissible means by which native title can be extinguished after 1 July 1993.

36  In any claim for determination of native title, or for compensation for loss or impairment of native title rights and interests, the NTA is ‘determinative’: Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (‘Yorta Yorta (HC)’), at [32], [70]. Accordingly, even if native title was extinguished under common law rules which are taken to have applied prior to the commencement of the NTA, it is still necessary to consider the application of the statute (and its State and Territory counterparts) to any act said to have extinguished native title: Wilson v Anderson (2002) 213 CLR 401, at [45]-[47], per Gaudron, Gummow and Hayne JJ.

37  The key concept under the NTA is ‘native title’, which is defined and described in s 223: Yorta Yorta (HC), at [75]. Section 223 relevantly provides as follows:

‘Common law rights and interests

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

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

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

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

Hunting, gathering and fishing covered

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

38  Prior to 1998, the applicants in native title claims or other litigation under the NTA were not constrained by the rules of evidence.  Until the NTAA 1998 substituted a new s 82 for the original version, s 82(3) provided that the Court, in conducting proceedings under the NTA, was not bound by ‘technicalities, legal forms or rules of evidence’. Section 82(1) of the NTA now provides that the Court is bound by the rules of evidence, except to the extent it otherwise orders.  Regrettably, as I observed in an interlocutory judgment in the present case, the applicants paid insufficient attention to the laws of evidence, especially in relation to the so-called Yulara Anthropology Report prepared by Professor Peter Sutton and Ms Petronella Vaarzon-Morel: see Jango v Northern Territory (No 2) [2004] FCA 1004 (‘Jango (No 2)’), at [8]. Among other consequences, this has led to an unnecessary increase in the costs of conducting the case.

5.        THE COMPENSATION REGIME UNDER THE NTA

39  The validation and extinguishment regime established by the NTA, of which the compensation provisions form part, is extraordinarily complex.  In this section of the judgment I outline the compensation regime, referring to the validation and extinguishment provisions only to the extent necessary to understand that regime.

5.1      PART 2, DIVISION 1

40 Section 13(2) of the NTA provides that if the Court is making a determination of compensation in accordance with Div 5 of Part 2, and an approved determination of native title has not previously been made in relation to the whole or part of the area concerned, the Court:

‘must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made’.

41 As Mr Basten pointed out, s 13(2) is a somewhat curious provision, at least in a case where there is no dispute that all native title rights and interests over the relevant land have been extinguished. In any event, the parties agree that if a determination of compensation is made, the appropriate determination for the purposes of s 13(2) of the NTA is that all native title rights and interests in respect of the Application Area have been extinguished.

5.2      PART 2, DIVISION 2

42 Division 2 of Part 2 of the NTA validates or allows the States and Territories to validate certain acts (known as ‘past acts’) that took place before 1 January 1994 and that otherwise would be invalid because of native title: NTA, ss 13A(1), (2), 228. Division 2 also sets out the effect of such validation on native title: s 13A(3). The past act regime is based on the assumption, which the authorities have established is correct, that some past acts were invalid when done because they were inconsistent with native title rights and interests and thus would have extinguished native title in a discriminatory fashion in contravention of s 10(1) of the RD Act.

43 Division 2 provides that if a ‘past act’ is an act ‘attributable to the Commonwealth’, the act is valid and is taken always to have been valid: s 14(1). Division 2 also provides that certain past acts attributable to the Commonwealth extinguish native title: s 15(1)(a), (b), (c). ‘Past acts’, generally speaking, include (see ss 13A(2), 228(2)):

(a)    acts that took place before 1 January 1994, when native title existed in relation to particular land or waters; and

(b)   apart from the NTA, the acts were invalid to some extent, but would have been valid to that extent if the native title did not exist.

An example of a ‘past act’ is a lease by a State or Territory of land in respect of which native title existed, where the lease was invalid because it extinguished native title rights and interests in contravention of s 10(1) of the RD Act.

44 Section 17(1) of the NTA provides, inter alia, that if the past act attributable to the Commonwealth is a ‘category A past act’ (such as the grant of certain freehold estates or pastoral leases), native title holders are entitled to compensation for the act. In the case of other past acts, s 17(2) of the NTA provides for compensation if certain conditions are satisfied. The compensation is payable by the Commonwealth: s 17(4).

45 Section 19(1) of the NTA permits a law of a State or Territory, if it contains provisions corresponding to ss 15 and 16 of the NTA, to provide that ‘past acts’ attributable to the State or Territory are valid and are taken always to have been valid. In effect, s 19 of the NTA carves out an exception to the blanket protection accorded to native title by s 11(1) of the NTA (which provides that native title cannot be extinguished contrary to the NTA): Native Title Act Case, at 456, 469.  As such, it is a valid law of the Commonwealth.

46 Section 20(1) of the NTA provides that if a law of a State or Territory validates a past act attributable to that State or Territory:

‘the native title holders are entitled to compensation if they would be so entitled under subsection 17(1) or (2) on the assumption that section 17 applied to acts attributable to the State or Territory’.

The native title holders may recover the compensation from the State or Territory concerned: s 20(3).

47 Section 20(4) of the NTA provides that a State or Territory may create additional rights to compensation for a past act or the validation of a past act.  The Territory has not legislated to create any such entitlement.

48 The Territory has enacted legislation of the kind permitted by s 19(1) of the NTA.  That legislation is the Validation Act which is authorised by s 19 of the NTA, but is an exercise of the legislative power of the Territory. Section 4 of the Validation Act provides that every past act attributable to the Territory is valid and is taken always to have been valid.

49 As I have noted, two pastoral leases were granted over the whole of the Application Area, the first in 1882 (which was forfeited in 1886) and the second in 1896. Neither of these leases was affected by Div 2 of Part 2 of the NTA, since they pre-dated the RD Act and each was valid when granted by the Crown. Division 2 is, however, relevant to certain acts that were done after the enactment of the RD Act and that affected any native title rights and interests then existing over the Application Area.

5.3      PART 2, DIVISION 2B

50 Division 2B of Part 2 of the NTA was inserted by the NTAA 1998 and came into force on 30 September 1998. Division 2B is intended to confirm past extinguishment of native title by certain acts which were valid and which were not struck at by the RD Act: Western Australia v Ward (2002) 213 CLR 1 (‘Ward (HC)’) at [8]. Such acts include those which predated the RD Act, such as the pastoral leases over the Application Area, and those which have been validated by the NTA (including by the operation of Div 2 of Part 2 and its State and Territory analogues). Division 2B confirms that certain acts attributable to the Commonwealth that were done before 23 December 1996 completely or partially extinguished native title: s 23A(1). The acts having that effect may be:

(a)‘previous exclusive possession acts’ (involving, for example, the grant of freehold estates or leases conferring exclusive possession); or

(b)‘previous non-exclusive possession acts’ (involving, for example, grants of non-exclusive pastoral leases): s 23A(2), (3).

51 Division 2B allows the States and Territories to legislate, in respect of ‘previous exclusive possession acts’ and ‘previous non-exclusive possession acts’ attributable to them, for the extinguishment of native title in the same way as is done under Div 2B for acts attributable to the Commonwealth: s 23A(4). The Territory has enacted such legislation: Validation Act, Parts 3B, 3C.

52 Section 23J of the NTA (within Div 2B) provides as follows:

‘Entitlement

(1)The native title holders are entitled to compensation in accordance with Division 5 for any extinguishment under this Division of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act.

Commonwealth acts

(2)If the act is attributable to the Commonwealth, the compensation is payable by the Commonwealth.

State and Territory acts

(3)If the act is attributable to a State or Territory, the compensation is payable by the State or Territory.’  (Emphasis added.)

53  In Wilson v Anderson, Gaudron, Gummow and Hayne JJ observed (at [51]) that s 23J(1) of the NTA:

‘has the effect of conferring upon native title holders an entitlement to compensation only where the statutory extinguishment exceeds the extinguishment that would have occurred at common law. The evident purpose of s 23J is to limit, so far as possible, the entitlement to compensation under s 23J, to cases where the “act” is invalid by reason of the Racial Discrimination Act 1975 (Cth) … and is subsequently validated by s 14 of the NTA or s 8 of the State Act [equivalent to s 4 of the Validation Act]. However, s 23J also may be attracted in respect of a valid “act” which, although satisfying the definition of “previous exclusive possession act”, would not completely extinguish native title at common law. That a different result may be reached under Div 2B of Pt 2 of the NTA or Pt 4 of the State Act [equivalent to Parts 3B and 3C of the Validation Act] emphasises the point that it is the statutory criteria provided for by those provisions which are to be applied when determining issues of extinguishment.’  (Emphasis added.)

5.4      PART 2, DIVISION 4

54 Section 10(1) of the RD Act (the terms of which are reproduced at par 102, below) may operate to confer a right to compensation upon native title holders where a State or Territory law has failed to make the right universal by denying it to the native title holders.  For example in Ward (HC), the High Court held (at [253]) that s 10(1) of the RD Act conferred a right to compensation on native title holders for the loss of their rights by the creation of a reserve pursuant to a State statute.  The RD Act conferred a right to compensation because under State law the only interests that were destroyed without compensation by the creation of the reserve were those of the native title holders. In such circumstances, the creation of the reserve was valid and could not be a ‘past act’ validated by legislation corresponding to Div 2 of Part 2 of the NTA. The effect of s 10(1) of the RD Act, however, was that the native title holders were entitled to compensation. 

55 Section 45 of the NTA is concerned with a right to compensation which arises in such circumstances.  It provides as follows:

‘(1)If the Racial Discrimination Act 1975 has the effect that compensation is payable to native title holders in respect of an act that validly affects native title to any extent, the compensation, in so far as it relates to the effect on native title, is to be determined in accordance with section 50 as if the entitlement arose under this Act.

Recovery of compensation

(2)If the act took place before 1 January 1994 and is attributable to the Commonwealth, a State or a Territory, the native title holders may recover the compensation from the Commonwealth, the State or the Territory, as the case requires.’

5.5      PART 2, DIVISION 5

56 Division 5 of Part 2 of the NTA (ss 48-54) deals with compensation for acts affecting native title.  Section 48 provides that compensation payable, inter alia, under Div 2 or 2B in relation to an ‘act’ is only payable in accordance with Div 5. Section 50(1) reiterates that a determination of compensation may only be made in accordance with Div 5. Section 49 provides that compensation under the NTA is only payable once for acts that are essentially the same.

57 An application for compensation may be made to the Federal Court under Part 3 (which includes s 61) for a determination of compensation: s 50(2); see, too, ss 81 and 213(2) of the NTA, each of which confers jurisdiction on the Federal Court to hear and determine matters relating to native title. As I have noted, the present compensation claim was instituted pursuant to s 61 of the NTA, as it stood before the NTAA 1998.

58 Section 51 of the NTA specifies the criteria for determining compensation. Section 51 relevantly provides as follows:

‘Just compensation

(1)… the entitlement to compensation under Division [2 or 2B] is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

…

Compensation where similar compensable interest test satisfied

(3)If:

(a)   the act is not the compulsory acquisition of all or any of the native title rights and interests; and

(b)   the similar compensable interest test is satisfied in relation to the act;

the court, person or body making the determination of compensation must, subject to subsections (5) to (8), in doing so apply any principles or criteria for determining compensation (whether or not on just terms) set out in the law mentioned in section 240 (which defines similar compensable interest test).’

…

Monetary compensation

(5)Subject to subsection (6), the compensation may only consist of the payment of money.

Requests for non-monetary compensation

(6)If the person claiming to be entitled to the compensation requests that the whole or part of the compensation should consist of the transfer of property or the provision of goods or services, the court, person or body:

(a)must consider the request; and

(b)may, instead of determining the whole or any part of the

compensation, recommend that the person liable to give the compensation should, within a special period, transfer property or provide goods or services in accordance with the recommendation.’

59 Section 240 provides that the ‘similar compensable interest test’ is satisfied in relation to a past act if:

‘(a)     the native title concerned relates to an onshore place; and

(b)the compensation would, apart from this Act, be payable under any law for the act on the assumption that the native title holders instead held ordinary title to any land or waters concerned and to the land adjoining, or surrounding, any waters concerned.’

60 Section 226(2) provides that an ‘act’ includes the following:

‘(a)     the making, amendment or repeal of any legislation;

(b)the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;

(c)the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;

(d)the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;

(e)the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;

(f)      an act having any effect at common law or in equity.’

An ‘act’ may be done by the Crown in any of its capacities, or by any other person: s 226(3).

61 Section 53 of the NTA, within Div 5 of Part 2, deals with ‘just terms compensation’ as follows:

‘Entitlement to just terms compensation

(1)      Where, apart from this section:

(a)the doing of any future act; or

(b)the application of any of the provisions of this Act in any particular case;

would result in a paragraph 51(xxxi) acquisition of property of a person other than on paragraph 51(xxxi) just terms, the person is entitled to such compensation, or compensation in addition to any otherwise provided by this Act, from:

(c)if the compensation is in respect of a future act attributable to a State or Territory – the State or Territory; or

(d)in any other case – the Commonwealth;

as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.

Federal Court’s jurisdiction

(2)The Federal Court has jurisdiction with respect to matters arising under subsection (1) and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.’

The expression ‘paragraph 51(xxxi) acquisition of property’ is defined by s 253 to mean ‘an acquisition of property within the meaning of paragraph 51(xxxi) of the Constitution’. Similarly, s 253 defines ‘paragraph 51(xxxi) just terms’ to mean ‘just terms within the meaning of paragraph 51(xxxi) of the Constitution’.

5.6      PART 4, DIVISION 3

62 Section 94 of the NTA, provides as follows:

‘If the Federal Court makes an order that compensation is payable, the order must set out:

(a)the name of the person or persons entitled to the compensation or the method for determining the person or persons; and

(b)the method (if any) for determining the amount or kind of compensation to be given to each person; and

(c)the method for determining any dispute regarding the entitlement of a person to an amount of the compensation.’

63 The Commonwealth submits that if an award of compensation is ultimately made, s 94 requires the Court to identify each individual who is a member of the group entitled to compensation, or at least a means of identifying those individuals. However, Mr Hughston SC, who appeared with Dr Perry for the Commonwealth, accepted in argument that even if the applicants succeed in establishing that the members of the compensation claim group are entitled to compensation, it is not necessary to comply with s 94 at this stage of the litigation.

64 Section 94A states that an order in which the Federal Court makes a determination of native title must set out the details of the matters mentioned in s 225. The applicants’ position is that s 225 of the NTA is not relevant to the present proceedings, because they seek compensation and not a determination of native title.

6.        THE VALIDATION AND EXTINGUISHMENT PROVISIONS OF THE NTA AND THE VALIDATION ACT

6.1      THE VALIDATION REGIME UNDER THE NTA

65 I have explained the general operation of the ‘past acts’ regime established by Div 2 of Part 2 of the NTA (section 5.2, above). As I have noted, s 14(1) provides that:

‘if a past act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid.’

The expression ‘valid’ is defined in s 253 to include ‘having full force and effect’.

66 Section 15(1) of the NTA provides for the extinguishing effect of past acts attributable to the Commonwealth, as follows:

‘(1)     If a past act is an act attributable to the Commonwealth:

(a)if it is a category A past act other than one to which subsection 229(4) (which deals with public works) applies – the act extinguishes the native title concerned; and

(b)if it is a category A past act to which subsection 229(4) applies:

(i)in any case – the act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and

(ii)if paragraph 229(4)(a) applies – the extinguishment is taken to have happened on 1 January 1994; and

(c)if it is a category B past act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned – the act extinguishes the native title to the extent of the inconsistency; and

(d)if it is a category C past act or a category D past act – the non-extinguishment principle applies to the act.’

The term ‘extinguish’ in relation to native title is defined to mean ‘permanently extinguish the native title’: s 237A. The term ‘act’ is defined very broadly in s 226 (see par 60, above).

67 Both ss 14 and 15 use the expression ‘attributable to the Commonwealth’. That and analogous expressions are defined in s 239 of the NTA, as follows:

‘An act is attributable to the Commonwealth, a State or a Territory if the act is done by:

(a)the Crown in right of the Commonwealth, the State or the Territory; or

(b)the Parliament or Legislative Assembly of the Commonwealth, the State or the Territory; or

(c)any person under a law of the Commonwealth, the State or the Territory.’

68 Section 16 of the NTA provides as follows:

‘If:

(a)the act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal people or Torres Strait Islanders; or

(b)the doing of the act would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 15 affects that reservation or condition or those rights or interests’.

69 Section 228 defines ‘past act’. Section 228(2) provides that, subject to a presently irrelevant exception:

‘if:

(a)       either:

(i)at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or

(ii)at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and

(b)apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist;

the act is a past act in relation to the land or waters.’

Section 228 makes special provision for certain acts taking place after 1 January 1994. In the present case, no acts of extinguishment are said to have occurred after that date.

70 Past acts are divided into four categories, identified respectively in ss 229 to 232 of the NTA. Only category A and category D past acts are relevant to the present case. Section 229 relevantly defines a ‘category A past act’ as follows:

‘Grant of certain freehold estates

(3)A past act consisting of the grant of a freehold estate is a category A past act if:

(a)       either:

(i)the grant was made before 1 January 1994 and the estate existed on 1 January 1994; or

(ii)       …; and

(b)       the grant is not:

(i)a grant by a Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or

(ii)a grant made by or under legislation that grants freehold estates only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iii)      …

Grant of certain leases

(3)A past act consisting of the grant of:

(a)a commercial lease, an agricultural lease, a pastoral lease or a residential lease; or

(b)       …

is a category A past act if:

(c)       either:

(i)the grant was made before 1 January 1994 and the lease was in force on 1 January 1994; or

(ii)       …; and

(d)       the grant is not:

(i)a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or

(ii)a grant made by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iii)      …

Construction of public works

(4)A past act consisting of the construction or establishment of any public work is a category A past act if:

(a)the work commenced to be constructed or established before 1 January 1994 and the construction or establishment had not been completed by that day; or

(b)the work was constructed or established before 1 January 1994 and still existed on that day; or

…’

71 The expressions ‘Aboriginal peoples’ and ‘statutory authority’, both of which are used in s 229(2)(b) and (3)(d), are defined in s 253 of the NTA, as is the term ‘public work’, which appears in s 229(4). 

72 Section 230 of the NTA defines a ‘category B past act’ to include certain non-mining leases in force on 1 January 1994. A ‘category C past act’ is a past act consisting of grant of a mining lease: s 231. A ‘category D past act’ is any past act that is not a category A, category B or category C past act: s 232.

26.1.2  The Compensation Acts

747 In the present case, the compensation acts are attributable to the Territory. The extinguishing effects of those acts are determined by Parts 2, 3 and 3B of the Validation Act. Any entitlements to compensation in respect of those acts arise under s 20 or s 23J of the NTA.  It is convenient, however, to address the question primarily by reference to the provisions of Divs 2 and 2B of the NTA, rather than their counterparts in the Validation Act.

748  If the applicants’ construction argument relating to the definition of ‘previous exclusive possession act’ in the Validation Act is put to one side, I do not understand there to be any dispute that the various compensation acts satisfy that definition.  The freehold and leasehold grants in respect of the Application Area satisfy the definition because:

· they were valid (either at the time of the grants or in consequence of the validation effected by s 4 of the Validation Act);

·    they were made before 23 December 1996; and

·    they consisted of the grant of a freehold or leasehold estate.

749  Similarly, the Public Works (that is, Connellan Airport, the Lasseter Highway, the Roads and the bores) satisfy the definition because:

· the acts were valid (either at the time they were done or in consequence of the validation effected by s 4 of the Validation Act); and

·    they each consisted of the construction of a ‘public work’ as defined in the NTA, that commenced to be constructed or established before 23 December 1996.

26.1.3  The Legislative History

750  As I have noted, prior to the 1998 amendments, the NTA did not affect an act that was valid when done and which was effective at the time it was done to extinguish or impair native title.  In Mabo (No2), the High Court recognised that in Australia native title to land survived the Crown’s acquisition of sovereignty (at 69, per Brennan J). From the outset, however, the High Court accepted that native title rights and interests:

‘are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.  They can also be terminated by other inconsistent dealings with the land by the Crown’.

Mabo (No2) at 110, per Deane and Gaudron JJ; Fejo v Northern Territory (1998) 195 CLR 96 (‘Fejo’), at [42]-[48].

751  The position was summarised by the High Court in the Native Title Act Case as follows (at 452-453):

‘Under the common law, as stated in Mabo [No 2], Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown.  The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown’s (or a statutory authority’s) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title’.

752  Nonetheless, as the Court also pointed out in the Native Title Act Case (at 453), native title was substantially protected against extinguishment on and after 31 October 1975 by the operation of the RDAct. This is so because the RDAct, as a paramount Commonwealth law, renders inconsistent State and Territory laws inoperative or requires them to be read down, including laws and other acts which discriminate, albeit unintentionally, against native title holders: Native Title Act Case, at 454. 

753 The point of Div 2 of Part 2 of the NTA when enacted, so far as acts attributable to a State or Territory were concerned, was to permit the State or Territories to enact laws in the future:

‘to give full force and effect to earlier acts which purported to extinguish or impair native title but which were ineffective at the time when the acts were done’.

Native Title Act Case, at 454. To this end, s 19 of the NTA, when read with what is now s 7(3), removed any invalidating inconsistency between a future State or Territory law that validated past acts attributable to the State or Territory, on the one hand, and the RDAct or any other law of the Commonwealth, on the other: Native Title Act Case, at 455.

754  In Wik Peoples v Queensland (1996) 187 CLR 1 (‘Wik’), a majority of the High Court held that certain pastoral leases in Queensland did not confer a right to exclusive possession on the lessees and thus did not necessarily extinguish all incidents of native title.  The decision in Wik was thought by many to be inconsistent with the assumptions underlying the NTA.  In particular, the recitals to the NTA recorded that the High Court in Mabo (No 2) had:

‘held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates’.  (Emphasis added.)

755  On 8 May 1997 the Government announced a ‘10 Point Plan’ as its response to Wik.  The Native Title Amendment Bill 1997 (‘NTA Bill 1997’), which was introduced into the House of Representatives on 4 September 1997, was designed to implement the 10 Point Plan. 

756  The NTA Bill 1997 was passed by the House of Representatives on 29 October 1997.  The Senate subsequently passed the Bill but amended it extensively.  The Bill was reintroduced into the House on 9 March 1998.  Many of the Senate’s amendments were accepted by the House of Representatives and the NTA Bill 1997 was amended to incorporate these changes.  It was this version of the NTA Bill 1997 to which the 1997 Explanatory Memorandum was directed.

757  I note in passing that at the time the 1997 Explanatory Memorandum was circulated (9 March 1998), litigation was under way to challenge the apparently clear proposition that the grant of a freehold estate in land necessarily extinguished all native title rights and interests in that land.  The challenge had failed in the Federal Court on 27 February 1998 (Fejo v Northern Territory (1998) 152 ALR 477), but in early March 1998 an appeal from this decision was apparently in contemplation. Part of that appeal was ultimately removed to the High Court and the challenge was finally rejected by the High Court on 10 September 1998, shortly before the NTAA came into force.

758  The 1997 Explanatory Memorandum stated (par 5.1) that Div 2B was to be inserted in Part 2 of the NTA in order to achieve points 2 and 4 of the 10 Point Plan.  Those points relevantly provided as follows:

‘Point 2     Confirmation of extinguishment of native title on “exclusive”  tenures

States and Territories would be able to confirm that ‘exclusive’ tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title.  Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended.  Any current or former pastoral lease conferring exclusive possession would also be included.

…

Point 4      Native title and pastoral leases

As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under [Point] 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralist.

All activities pursuant to, or incidental to, “primary production” would be allowed on pastoral leases…’

759  The 1997 Explanatory Memorandum noted that Div 2B confirmed the effect on native title of various types of Commonwealth acts done before 23 December 1996 and that the legislation attempted to reflect the Government’s understanding of the common law of native title after Wik (par 5.1).  It also noted that Div 2B permitted the States and Territories to confirm the effect of acts they had done prior to 23 December 1996.  The 1997 Explanatory Memorandum continued as follows:

‘5.2Generally speaking, the existing NTA only provides a framework for dealing with native title. The NTA currently says little about whether or where native title may still exist in Australia, and apart from the very limited validation provisions in Division 2 of Part 2, says nothing about whether native title may or may not have been extinguished. The NTA generally leaves these issues to be determined by the common law. This has given rise to significant uncertainty for native title claimants and the holders of other interests in land.

5.3The purpose of the proposed amendments dealing with confirmation of extinguishment of native title is to limit this uncertainty.  The effect will be to confirm that the native title is extinguished on exclusive tenures (such as freehold and residential leases) and extinguished to the extent of any inconsistency on non-exclusive agricultural and pastoral leases.  Consistent with the Wik decision, the rationale for such confirmation is that the rights conferred and/or the nature of the use of the land is such that the exclusion of others (including native title holders) must have been presumed when the tenure was granted.  The amendments will put the matter beyond doubt.’

760  Paragraph 5.28 of the 1997 Explanatory Memorandum addressed the effect of confirmation of extinguishment on the provisions dealing with past acts, as follows:

‘If native title has been extinguished by a previous exclusive possession act or a previous non-exclusive possession act, the provisions that deal with the effects of past acts… on native title do not apply [subsections23C(3) and 23G(3) …].  These provisions [included] existing section 15 of the NTA … Subsections 23C(3) and 23G(3) ensure that there is no overlap between the provisions that extinguish native title. For example, the non-extinguishment principle applies to the grant by the Commonwealth of freehold validated under Division 2 if it was no longer in existence on 1 January 1994 (see subsection 229(2) and section 232) but by reason of s 23C(1), the native title will now be taken to have been extinguished by that grant.’ (Emphasis in original.)

761 The example given in the last sentence of par 5.28 refers to s 15(1)(d) of the NTA, which provides that the non-extinguishment principle applies to a category D past act. A category D past act includes the grant of a freehold estate, where the grant was made before 1 January 1994 but the estate did not exist on 1 January 1994: s 229(2)(a), (4). Section 23C(1) provides that a previous exclusive possession act (which includes the grant of a freehold estate validated under Div 2) extinguishes native title and does so from the date the act was done. As par 5.28 implies, the effect of s 23C(3) is to exclude s 15 of the NTA from applying to the previous exclusive possession act notwithstanding that it was also a past act.  Thus the non-extinguishment principle does not apply to the category D past act.

762  The 1997 Explanatory Memorandum also addressed the question of compensation for confirmation of extinguishment, as follows

‘5.41If native title has already been extinguished otherwise than under the NTA (e.g. in accordance with common law principles that [sic] other legislation has extinguished native title), compensation is not payable under the NTA. However, if Division 2B does extinguish native title to a greater extent than otherwise would have been the case without the NTA, compensation is payable to that extent [subsection23J(1)].  This ensures that Division 2B does not create a right to compensation for acts where it would not be payable without Division 2B.

5.42As discussed in paragraph 5.3, Division 2B is intended to reflect the common law. Therefore it is not expected that section 23J will need to operate. It is included as a safeguard in the event that a court finds that extinguishment under Division 2B goes further than the common law.’ (Emphasis in original.)

26.1.4  The Relationship Between Div 2 and Div 2B

763  The 1997 Explanatory Memorandum suggests that Div 2B was inserted into Part 2 of the NTA in order to specify the extinguishing effects of all previous exclusive possession acts, regardless of whether such acts were also past acts for the purposes of Div 2.  Paragraph 5.28 emphasises that if native title has been extinguished by a previous exclusive possession act, the provisions that deal with the effects of past acts do not apply.  More particularly, par 5.28 makes it clear that there is to be no overlap between the provisions that extinguish native title.  The example given by par 5.28, to which I have referred, reinforces the point.

764  The language of Div 2B gives effect to the objectives outlined in the 1997 Explanatory Memorandum. Section 15 of the NTA, which provides for the extinguishing effects of pasts acts, does not apply if an act is a previous exclusive possession act attributable to the Commonwealth: NTA, s 23C(3). Whatever the position before the 1998 amendments to the NTA, the extinguishing effect of such an act is determined by s 23C and by no other provision in the NTA. Section 23C(1) provides that an act other than a public work, being a previous exclusive possession act under s 23B(2), extinguishes native title in relation to the land concerned. Section 23C(2) provides that if an act is a previous exclusive possession act under s 23B(7) (which deals with public works), the act also extinguishes native title in relation to the land concerned. Section 23C(1)(b) expressly states that the extinguishment effected by a previous exclusive possession act under s 23B(2) of the NTA ‘is taken to have happened when the act was done’. Similarly, s 23C(2)(b) states that the extinguishment effected by a public work ‘is taken to have happened when the construction or establishment of the public work began’.

765 The fact that Div 2B specifies the consequences for extinguishment of native title by previous exclusive possession acts does not necessarily mean that the native title holders’ entitlement to compensation is created by Div 2B rather than Div 2. In the case of an act attributable to the Commonwealth, s 17(1) (in Div 2) simply provides that if the act is a category A past act, the native title holders are entitled to compensation for the act. However, s 17 has to be read with s 15, which states (relevantly) that a category A past act attributable to the Commonwealth extinguishes the native title concerned. The entitlement to compensation created by s 17(1), although said to be ‘for the act’, assumes that the past act has extinguished native title in accordance with s 15. In other words, s 17 creates an entitlement to compensation because s 15 provides that the past act extinguishes native title.

766  Following the 1998 amendments to the NTA, Div 2B specifies the extinguishing effects on native title of previous exclusive possession acts, including those that are also past acts for the purposes of Div 2. The consequences of a previous exclusive possession act for native title rights and interests are determined by s 23C of the NTA (in Div 2B) and not by s 15 (in Div 2). It follows, in my opinion, that the extinguishment of native title by reason of a previous exclusive possession act takes place ‘under [Div 2B]’ for the purposes of s 23J of the NTA. Thus the entitlement to compensation for the extinguishment arises under s 23J and not s 17 of the NTA.

767  I appreciate that par 5.2 of the 1997 Explanatory Memorandum states that it is not expected that s 23J will need to operate and that it is only included as a ‘safeguard’ in the event that a court finds that Div 2B goes further than the common law. However, I interpret par 5.42 as intended to convey that s 23J will not create any greater entitlement to compensation than the NTA provided before the 1998 amendments, unless Div 2B is found to have extinguished native title to a greater extent.

768  In any event, par 5.42 of 1997 Explanatory Memorandum cannot control the meaning of Div 2B. For reasons I have given, s 23J of the NTA, in my view, creates an entitlement in native title holders to compensation for the extinguishment of native title effected by a previous exclusive possession act.  This is so notwithstanding that the previous exclusive possession act is also a past act for the purposes of Div 2.

769 This view receives support from the observations concerning s 23J made by Gaudron, Gummow and Hayne JJ in Wilson v Anderson. Their Honours said this (at [51]):

‘Sub-section (1) of s 23J has the effect of conferring upon native title holders an entitlement to compensation only where the statutory extinguishment exceeds the extinguishment that would have occurred at common law. The evident purpose s 23J is to limit, so far as possible, the entitlement to compensation under s 23J, to cases where the “act” is invalid by reason of the Racial Discrimination Act 1975 (Cth) … and is subsequently validated by s 14 of the NTA or [equivalent State or Territory legislation]. However, s 23J also may be attracted in respect of a valid “act” which, although satisfying the definition of “previous exclusive possession act”, would not completely extinguish native title at common law. That a different result may be reached under Div 2B of Pt 2 of the NTA or Pt 4 of the State Act emphasises the point that it is the statutory criteria provided for by those provisions which are to applied when determining issues of extinguishment’.

Their Honours’ observations proceed on the basis that s 23J of the NTA creates an entitlement to compensation in cases where an act is invalid by reason of the RDAct but is subsequently validated by s 14 of the NTA or a State or Territory counterpart. Such an act presumably would be a ‘past act’ as defined in s 228(2) of the NTA as well as a ‘previous exclusive possession act’ as defined in s 23B of the NTA.

770 This construction of Div 2B of the NTA does not leave Div 2 without any work to do. Not all past acts are previous exclusive possession acts for the purposes of Div 2B of the NTA. For example, the grant of an estate is not a previous exclusive possession act if the grant involves the establishment of a national park for the purpose of preserving the natural environment: s 23B(9A). Yet such a grant may vest a right of exclusive possession in the grantee which is capable of extinguishing native title rights and interests: Ward (HC), at [258]. If the grant was invalid under the RDAct by reason of its effect on native title, it could be a past act (s 228(2)) and could be validated by s 14 of the NTA. The effect on native title of the grant would be determined by s 15 of the NTA and the entitlement to compensation would arise under s 17.

771  As Mr Hughston pointed out, this construction of Div 2B accords with what will often be the practical realities and avoids what otherwise would be strange consequences.  Previous exclusive possession acts include grants of fee simple estates or leases and the construction of public works.  Some of these acts may have been invalid when done by reason of the RDAct (and thus would have been ‘past acts’), but this would not have been known at the time.   The practical consequences of these acts usually would have included the de facto loss or impairment of native title rights and interests.  It makes sense that any right to compensation in respect of the validation of those acts is to be determined as at the date the acts took place. 

772  The contrary view could lead to the statutory entitlement to compensation including compensation for the added value of public works and other improvement to the land after the extinguishing acts took place.  For example, in the present case members of the compensation claim group would be entitled to compensation for the value of Connellan Airport, the construction of which was completed in 1981.  Presumably, this would be in addition to other heads of compensation for the loss of native title rights and interests over the land on which the Airport was constructed.  While it may well be appropriate (as the Commonwealth appears to accept) that native title holders should receive interest if compensation is assessed at the date of statutory extinguishment of their rights and interests, it is difficult to imagine that the compensation regime in the NTA is intended to provide the windfall benefits to claimants that are implicit in the applicants’ arguments.

773  Thus far I have referred to the position under the NTA in respect of previous exclusive possession acts attributable to the Commonwealth. A similar analysis applies to previous exclusive possession acts attributable to the Territory. Section 9H(1) of the Validation Act provides that such an act, other than a public work, extinguishes native title in relation to the land concerned. Section 9H(2) of the Validation Act, which is the analogue to s 23C(1)(b) of the NTA, states that the extinguishment is taken to have happened when the act was done. Section 9J of the Validation Act contains provisions in relation to public works attributable to the Territory corresponding to those in s 23C(2) of the NTA.

774 It follows from what I have said that any right of the native title holders to compensation ‘for any extinguishment … of their native title rights and interests’ by an act attributable to the Territory arises under s 23J(1) of the NTA. When s 23J(1) of the NTA is read with ss 9H(2) and 9J(2) of the Validation Act, any such right to compensation arises (or is taken to arise) when the extinguishment is taken to have happened.  In the case of acts other than public works, this is the date the act was done; in the case of public works it is the date the construction or establishment of the public work began.

26.2     AN ACCRUED RIGHT TO COMPENSATION?

775 One of the arguments advanced by the applicants against the ‘primacy’ of Div 2B of the NTA is that this construction could deprive a native title holder of an accrued right to compensation under s 17 of the NTA. This could occur, so it is said, because the entitlement to compensation for a past act under s 17 arose when the NTA came into force (1994), while the entitlement to compensation under s 23J is taken to have arisen when the relevant act was done. A person whose native title rights and interests came into existence after a past act took place, but before 1994 (for example, a native title holder born between those two dates), might be deprived of an ‘accrued right’ to compensation.

776 This argument appears to assume that a person whose native title rights and interests came into existence after the past act took place has a right to compensation under s 17. I doubt that the assumption is correct. Section 14 of the NTA provides that if a past act is attributable to the Commonwealth, the act is valid and is taken always to have been valid. Section 15 provides that, in the case of a category A past act, the act extinguishes native title. Although s 15 does not expressly state when native title is extinguished, reading ss 14 and 15 together the intent would appear to be that the extinguishment is to be taken as having occurred at the time the validated act took place. After all, that act must be taken ‘always to have been valid’. Since the entitlement to compensation provided by s 17 of the NTA is ‘for the act’, the better view would seem to be that the only persons or groups entitled to compensation are those who held native title rights and interests at the date the past act occurred.

777 In any event, if the effect of inserting Div 2B into the NTA was to deprive some native title holders of an accrued right to compensation, it would be necessary to take s 53(1) of the NTA into account.  This subsection provides that if the application of any of the provisions of the NTA would result in a ‘paragraph 51(xxxi) acquisition of property’ otherwise than on just terms, a person is entitled to such compensation as is necessary to ensure that just terms are provided. The loss of an ‘accrued right’ to compensation in respect of the extinguishment of native title rights and interests may well constitute an acquisition of property otherwise than on just terms, attracting the protection s 53(1). It is not necessary to consider that possibility further in the present case.

26.3     THE CONSTITUTIONAL VALIDITY OF NTA, S 23E

778 The applicants’ written submissions suggest that s 23E of the NTA, insofar as it authorises the States or Territories to legislate for the acquisition of property otherwise than on just terms, contravenes s 51(xxxi) of the Constitution.  The suggestion was not developed in oral argument. 

779 Nonetheless, Dr Perry on behalf of the Commonwealth responded to the suggestion. She pointed out that s 23E is analogous to s 19 of the NTA. The latter allows a law of a State or Territory to provide that past acts attributable to the State or Territory are valid and are taken always to have been valid. Section 23E allows a law of a State or Territory to make provision to the same effect as s 23C in respect of previous exclusive possession acts attributable to the State or Territory (that is, to provide that previous exclusive possession acts extinguish native title).

780  In the Native Title Act Case, the High Court upheld the validity of s 19 of the NTA. The Court observed (at 468) that s 11(1) of the NTA protects native title from extinguishment. Section 19 merely:

‘define[s] the area within which State and Territory laws have a field of operation with respect to native title. Those provisions are exceptions to the general sterilisation of extinguishing acts declared by s 11(1)’.

Accordingly, so the Court held (at 469) the term ‘valid’ in s 19:

‘must be taken to mean having, or not having, (as the case may be) full force and effect upon the regime of protection of native title otherwise prescribed by the Act.  In other words, those terms are not used in reference to the power to make or to the making of a State or Territory law but in reference to the effect which a State law, when validly made, might have in creating an exception to the blanket protection of native title by s 11(1).  In using the terms “valid” and “invalid”, the Act marks out the areas relating to native title left to regulation by State and Territory laws or the areas relating to native title regulated exclusively by the Commonwealth regime.’

781 A similar analysis applies to s 23E of the NTA. Like s 19, it defines the areas within which State and Territory laws can extinguish native title. It, too, is an exception to the general sterilisation of extinguishing acts declared by s 11(1). Viewed in this way, its constitutional validity is not in doubt.

782 In any event, s 53(1) of the NTA ensures that if the application of any provision in the NTA, including s 23E, would result in an acquisition of property within the meaning of s 51(xxxi) of the Constitution, the person affected is entitled to just terms. Section 53(1) is clearly intended to ensure, in the event of any doubt, that provisions such as s 23E do not fall foul of s 51(xxxi) of the Constitution. If, therefore, the applicants intend to challenge the validity of s 23E of the NTA, that challenge fails.

27.      SUMMARY ON EXTINGUISHMENT AND COMPENSATION

783  I have addressed the related questions of extinguishment of native title and the entitlement of the compensation claim group to compensation in respect of that extinguishment on the basis of an assumption that is contrary to the findings I have made earlier.  The assumption is that the applicants have established that native title rights and interests subsisted over the Application Area in accordance with the traditional laws and customs of the Western Desert bloc, until extinguished by the compensations acts.

784  On that assumption, I reject the Commonwealth’s submission that all surviving native title rights and interests were validly extinguished before the NTA came into force. In particular, having regard to the operation of s 10(1) of the RDAct, I reject the Commonwealth’s contentions that native title rights and interests were validly extinguished before the commencement of the NTA by:

·the registration under the Real Property Act of the first grants of fee simple estates over lots on the Application Area; or

·the construction of the Public Works by the Territory on land within the Application Area.

It follows that I do not accept the Commonwealth’s submission that members of the compensation claim group would not be entitled to compensation under the NTA in respect of the extinguishment of native title rights and interests over the Application Area.  I do not accept that those interests would have been validly extinguished prior to the commencement of the NTA.

785  On the other hand, I reject the applicants’ submission that any entitlement to compensation under the NTA arose only on 10 March 1994, the date the Validation Act commenced.  The applicants’ submission is largely based upon the proposition that a ‘past act’ attributable to the Territory cannot be a ‘previous exclusive possession act’ for the purposes of the NTA and the Validation Act. For the reasons I have given, in my view that proposition is not correct. Accordingly, any right to compensation in respect of the extinguishment of native title rights and interests arises under s 23J of the NTA, not under s 20 of the NTA. On the correct construction of s 23J, when read in conjunction with ss 9H and 9J of the Validation Act, the entitlement to compensation is taken to have arisen at the time the extinguishment acts were done or, in the case of public works, when the construction or establishment of the particular public work began.  Accordingly, if the compensation claim group were entitled to compensation for the extinguishment of native rights and interests, the quantum of compensation would be assessed without reference to any improvements on the land the construction of which post-dated the relevant extinguishing acts or events.

786  The answers to the three questions I posed (par 742, above) are as follows:

(i)If there were any native title rights and interests subsisting over the Application Area immediately before the compensation acts occurred, they were extinguished by previous exclusive possession acts attributable to the Territory, as provided for in Part 3B of the Validation Act.

(ii)In the case of previous exclusive possession acts affecting the Application Area, insofar as they consist of the grant of freehold estates or leasehold estates conferring rights to exclusive possession, any extinguishment of native title rights and interests is taken to have occurred at the time the grants were made: Validation Act, s 9H(2). In the case of Public Works constructed on the Application Area, the extinguishment is taken to have happened when the construction or establishment of the Public Works began: Validation Act, s 9J(2).

(iii)Any entitlement to compensation in respect of the extinguishment of native title rights and interests over the Application Area arises under s 23J of the NTA. The entitlement is taken to have arisen on the date or dates the extinguishing acts or events occurred.  Thus members of the compensation claim group would not be entitled to compensation in respect of improvements to the land effected after those acts or events occurred.

787  Since I have found that the applicants have not established the existence of native title rights and interests over the Application Area immediately prior to the compensation acts, it is not necessary to identify each act or event that is taken to have extinguished native rights and interests over the various lots within the Application Area.  My present view, however, is that the analysis advanced by the Territory (summarised in par 628, above), generally speaking, accurately reflects the reasoning I have adopted.

28.      CONCLUSION

788  The question to be resolved in this judgment is whether the applicants have established that the Territory is liable to pay compensation to members of the compensation claim group by reason of the extinguishment of native title rights and interests over the Application Area.  The threshold issue is whether the applicants have shown that at the time the compensation acts occurred (no earlier than 1979), any native title rights and interests subsisted over the Application Area.  If there were no such rights and interests, the compensation acts could not have extinguished them.

789  On my findings, the applicants have not succeeded on the threshold issue, for two independent reasons:

·    First, the applicants have not shown, on the evidence, that the indigenous witnesses, or members of the compensation claim group, acknowledged and observed at the relevant times the laws and customs of the Western Desert bloc as pleaded in the Points of Claim.

·    Secondly, I am not satisfied that any laws and customs relating to rights and interests in land that may have been acknowledged and observed by the Aboriginal witnesses are the traditional laws and customs of the Western Desert bloc, within the meaning of s 223(1) of the NTA.

790  In the second part of the judgment I address the issues relating to extinguishment of native title that would have arisen had the applicants (contrary to my findings) succeeded on the threshold question.  On that assumption, I have concluded that the native title rights and interests of members of the compensation claim group would not have been validly extinguished prior to the compensation acts taking place (although some interests would have been extinguished by the pastoral leases granted in 1882 and 1896).  Thus at least some members of the compensation claim group would have been entitled to compensation.  However, contrary to the applicants’ submissions, I conclude that any such entitlement would have arisen at the time major construction works on the Application Area commenced (that is, before any substantial works had been undertaken on the land).  Accordingly, any entitlement to compensation would not include the value of any building or works on the Application Area.

791  I emphasise, as I have elsewhere in this judgment, that I have addressed the compensation case the applicants have chosen to put forward.  My conclusions do not necessarily imply that none of the applicants or members of the compensation claim group could have established an entitlement to native title rights and interests over the Yulara block had the case been conducted differently.  However, I am not entitled to consider some alternative or different case that the applicants perhaps might have advanced in the light of the anthropological literature and the evidence of indigenous witnesses.  Indeed I was not asked to do so.

792  I reiterate that this comment is not intended as a criticism of the manner in which the applicants’ case was presented.  There may have been very good reasons why the applicants chose to proceed in the manner they have.  But they are bound by the conduct of their case.

793  The result is that the applicants have not established that the Territory is liable to pay compensation to any member of the compensation claim group.  The compensation application must therefore be dismissed.  I shall give the parties an opportunity to make submissions on costs and on any consequential orders that may be required.

I certify that the preceding seven hundred and ninety-three (793) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             31 March 2006

Counsel for the applicants:	Mr J Basten QC with Mr D Parsons SC, Mr R Blowes SC and Ms A Keely
Solicitor for the applicants:	Central Land Council
Counsel for the first respondent:	Mr T Pauling QC with Ms J Kelly
Solicitor for the first respondent:	Solicitor for the Nothern Territory
Solicitors for the second respondent:	Ward Keller Lawyers
Counsel for the third respondent:	Mr V Hughston SC with Dr M Perry QC
Solicitor for the third respondent:	Australian Government Solicitor
Dates of hearing:	21–24, 27–31 October, 3–7 November 2003, 19–23, 26–28 April, 17–20, 24–25 May, 9 August, 22–26 November, 6–7 December 2004, 2 February, 7–8, 11–13 April 2005
Date of judgment:	31 March 2006