Northern Territory v Alyawarr
[2005] FCAFC 135
•29 JULY 2005
FEDERAL COURT OF AUSTRALIA
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135
NATIVE TITLE - determination of native title rights and interests – native title holders – definition of native title holding group – whether several estate groups holding rights separately or one community encompassing all groups – membership, by recognition, of persons connected by birthplace, adoption and spousal affiliation – whether determination of native title rights and interests can incorporate specific processes for application of traditional law and custom – native title rights and interests – effect of prior partial extinguishment – control over access to land – control over use of land – whether particular rights relate to land – whether particular rights enforceable and cognisable by common law – right to control disclosure of knowledge – whether relates to land – right to determine membership – right to be acknowledged as traditional owners – whether enforceable and cognisable right - right to trade – whether supported by evidence – application of s 47B – proclamation of townsite – no subsequent action to develop townsite – whether proclamation for public purposes or particular purpose – meaning of ‘is to be used’ in s 47B – whether applicants occupied land at time of application
WORDS AND PHRASES - ‘connection’, ‘occupy’, ‘is to be used’, ‘public purposes’
Native Title Act 1993 (Cth) ss 47B, 223, 225
Validation (Native Title) Act 1999 (NT) ss 9K, 9L, 9M, 11
Crown Lands Ordinance 1931-1952 (NT) s 111Yarmirr v Northern Territory of Australia (1998) 82 FCR 533 cited
Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Ward v Western Australia (1998) 159 ALR 483 cited
Neowarra v State of Western Australia [2003] FCA 1402 cited
Western Australia v Ward (2002) 213 CLR 1 cited
Western Australia v Ward (2000) 99 FCR 316 cited
Fejo v Northern Territory (1998) 195 CLR 96 cited
Western Australia v Commonwealth (1994) 183 CLR 373 cited
Yanner v Eaton (1999) 201 CLR 351 cited
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 cited
Commonwealth v Yarmirr (2001) 208 CLR 1 cited
Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 cited
Sampi v State of Western Australia [2005] FCA 777 cited
De Rose v State of South Australia (No 2) [2005] FCAFC 110 cited
Wandarang People v Northern Territory (2000) 104 FCR 380 cited
Daniel v State of Western Australia [2003] FCA 666 cited
Lardil Peoples v State of Queensland [2004] FCA 298 cited
Daniel v State of Western Australia (No 2) [2003] FCA 1425 cited
Attorney-General (NT) v Ward (2003) 134 FCR 16 cited
Hayes v Northern Territory (1999) 97 FCR 32 cited
Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 cited
Rubibi Community v Western Australia (2001) 112 FCR 409 cited
Passi v Queensland [2001] FCA 697 cited
Sac and Fox Tribe of Indians of Oklahoma v United States (1967) 383 F 2d 991 cited
De Rose v State of South Australia [2002] FCA 1342 citedNORTHERN TERRITORY OF AUSTRALIA v THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAYA NATIVE TITLE CLAIM GROUP and CONSERVATION LAND CORPORATION
NTD 8 OF 2004WILCOX, FRENCH and WEINBERG JJ
29 JULY 2005
PERTH (Heard in Darwin)
IN THE FEDERAL COURT OF AUSTRALIA
Northern Territory DISTRICT REGISTRY
NTD 8 OF 2004
On Appeal from a Single Judge of the Federal Court of Australia
BETWEEN:
NORTHERN TERRITORY OF AUSTRALIA
APPELLANTAND:
THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAYA NATIVE TITLE CLAIM GROUP
FIRST RESPONDENTCONSERVATION LAND CORPORATION
SECOND RESPONDENTJUDGES:
WILCOX, FRENCH and WEINBERG JJ
DATE OF ORDER:
29 JULY 2005
WHERE MADE:
PERTH (Heard in Darwin)
THE COURT ORDERS THAT:
1. The appeal and cross appeal are allowed in part.
2.The determination made on 23 April 2004 is varied:
(i) by deleting therefrom pars 3(h) and (i), 7(b), 8(e)(vi) and the Note to par 8;
(ii)by varying the opening part of par 3 to substitute for the words ‘the right to conduct activities incidental to them’ the words ‘the right to conduct activities necessary to give effect to them’;
(iii)by varying pars 3(a), (c), (e), (f) and (g) to read respectively:
‘(a)the right to hunt and fish, to gather and use the resources of the land such as food and medicinal plants and trees, tubers, charcoal, ochre, stone and wax and to have access to and use of the water on or in the land.
(c)the right to do the following activities on the land:
(i)engage in cultural activities;
(ii)conduct ceremonies;
(iii)hold meetings;
(iv)teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and
(v)participate in cultural practices relating to birth and death, including burial rights.
(e)in respect of the Hatches Creek townsite only, the right to make decisions about access to the land by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(f)in respect of the Hatches Creek townsite only, the right to make decisions about the use and enjoyment of the land and waters and the subsistence and other traditional resources thereof, by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(g)the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.’
(iv)by varying par 1 to read:
‘Native title exists in relation to areas which comprise the land and waters covered by the Northern Territory Portions 4386 and 4387 and the Town of Hatches Creek (‘the determination area’)
The determination area does not include the areas set out in the Schedule.’
(v)by varying par 5 to read:
‘In relation to that part of the determination area identified as the Town of Hatches Creek the native title rights and interests of the common law holders confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.’
(vi)by varying par 7(a)(iv) to read:
‘Interests of the Crown pursuant to statute or otherwise in the exercise of its executive powers.’
3.The appeal and cross appeal are otherwise dismissed.
4.The parties are to bear their own costs of the appeal and the cross appeal unless within 14 days of this judgment one of the parties makes a written submission seeking a different costs order in which event the other party may reply in writing within 14 days thereafter and the question of costs will be determined on the papers.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
INDEX
Introduction [1] – [9]
The native title determination application [10] – [17]
The proceedings [18] – [20]
The judgment [21] – [53]
Grounds of Appeal [54] – [56]
Statutory Framework
- The Native Title Act 1993 (Cth) [57] – [60]
The developing law of native title [61] – [93]
Issue 1 – The identification of the native title
holders – the relevant part of the determination [94]
Issue 1 – The identification of the native title
holders – one community or seven estate groups[95] – [112]
Issue 1 – The identification of native title holders
– birthplace, adoption and non-descent connection [113] – [116]
Issue 1 – The identification of native title
holders – spousal affiliation[117]
Issue 1 – The identification of native title holders
- general conclusion[118]
Issue 2 – The native title rights and interests – general[119] – [120]
Issue 2 – The native title rights and interests – hunting
and fishing and use of resources[121]
Issue 2 – The native title rights and interests – the right to
live on the land and to erect structures[122] – [133]
Issue 2 – The native title rights and interests – teaching
physical and spiritual attributes on the land[134] – [135]
Issue 2 – The native title rights and interests – the right
to protect sites of importance[136] – [140]
Issue 2 – The native title rights and interests – the right to
make decisions about access to and use and enjoyment of
the land [141] – [151]
Issue 2 – The native title rights and interests – the right to trade [152] – [157]
Issue 2 – The native title rights and interests – the right to control
disclosure of spiritual beliefs or practices [158] – [164]
Issue 2 – The native title rights and interests – the right to
determine membership of the landholding group [165]
Issue 2 - The native title rights and interests – the right to be
acknowledged as the Aboriginal owners of the land [166] – [168]
Issue 3 – The Hatches Creek townsite and the application of
s 47B of the NT Act [169] – [196]
The cross appeal – general [197]
The cross appeal – determination paragraph 1 [198]
The cross appeal – determination paragraph 3(a) [199]
The cross appeal – determination paragraph 3(j) [200]
The cross appeal – determination paragraph 5 [201] – [203]
The cross appeal – determination paragraph 7 [204] – [210]
The cross appeal – determination paragraph 7(b) [211]
The cross appeal – determination paragraph 8 [212] – [217]
The cross appeal – the effect of CLP 1117 and the Note
to paragraph 8(e) [218] – [227]
The cross appeal – determination – proposed new
paragraph 8(f) [228] – [229]
Conclusion [230] – [231]
Annexure A – Map – Determination Area
Annexure B – Determination of Mansfield J
IN THE FEDERAL COURT OF AUSTRALIA
Northern Territory DISTRICT REGISTRY
NTD 8 OF 2004
On Appeal from a Single Judge of the Federal Court of Australia
BETWEEN:
NORTHERN TERRITORY OF AUSTRALIA
APPELLANTAND:
THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAYA NATIVE TITLE CLAIM GROUP
FIRST RESPONDENTCONSERVATION LAND CORPORATION
SECOND RESPONDENT
JUDGES:
WILCOX, FRENCH and WEINBERG JJ
DATE:
29 JULY 2005
PLACE:
PERTH (Heard in Darwin)
REASONS FOR JUDGMENT
The Court:
Introduction
South east of Tennant Creek in the Northern Territory is an area of land which is the traditional country of Aboriginal people comprising seven landholding estate groups. These are known as the Arrawatyen, Antarrengeny, Keranty, Lyentyawel, Tyaw, Warwepenty and Kelatnyerrang. On 20 November 1995 they lodged an application for a native title determination with the National Native Title Tribunal (the Tribunal). The application covered part of their traditional country. It comprised one large area of over 1,120 square kilometres and a separate area known as the Hatches Creek townsite comprising 27.12 hectares. A sketch of the claim area is Annexure A to these reasons. The Northern Territory proposes to create the Davenport Ranges National Park and an area for tourism and camping in the main section of the claim lands. The townsite, although proclaimed in 1953, has never been developed.
All of the areas under claim have been the subject of pastoral lease grants in the past. There is no current pastoral lease on any part of the claim area. However, the Conservation Land Corporation of the Northern Territory (the Corporation) holds a Crown Lease in Perpetuity over the whole of the area except for the old townsite. The Corporation holds that lease so that the land which it covers can be managed by the Conservation Commission of the Northern Territory (the Commission) under the Parks and Wildlife Commission Act (NT).
The application was not resolved by mediation and was referred to the Court under s 74 of the Native Title Act 1993 (Cth) (the NT Act) in May 1998. It was heard by Mansfield J in September 2000 and March 2001. Final submissions were lodged on 21 January 2003. It appears that judgment was deferred pending the outcome of the High Court’s decisions in the cases known as Ward and Yorta Yorta. His Honour made a determination of native title in favour of the applicants on 23 April 2004. A copy of the determination is Annexure B to these reasons. The Northern Territory has appealed against that determination. It has raised some 56 grounds of appeal but they go to three broad issues.
The first issue concerns the proper definition of the native title holders and whether they are the members of one community comprising the seven estate groups or whether the seven estate groups hold their native title rights and interests severally in respect of their various estate areas. There is also a question about the inclusion in the group of persons affiliated by birthplace connections, spousal affiliations and adoption and what, if any, role communal recognition and acceptance of such persons play in determining its membership.
The second broad issue relates to the native title rights and interests defined in the determination. The Northern Territory challenges the inclusion of certain native title rights relating to control of access to the land where there are no exclusive native title rights in existence. It also challenges the formulation of other rights on the grounds that they do not relate to the land or are otherwise not cognisable by the common law.
The third issue concerns the existence of exclusive native title rights in the Hatches Creek townsite. That depends upon the operation of s 47B of the NT Act which allows prior extinguishment to be disregarded on vacant Crown land if the applicants occupied the land at the time of their application.
There are ancillary issues including questions of drafting raised in a cross appeal which seeks to vary some of the determined rights and to add to them.
For the reasons that follow, the learned trial judge did not err in defining the native title holders. However rights to control access to the land other than the Hatches Creek townsite should not have been included in the determination given the effects of past pastoral leases in the area. His Honour’s finding that s 47B applied to the Hatches Creek townsite and that exclusive rights operated in that area was correct. Some of the native title rights defined by his Honour required variation in minor respects, which are set out below.
The overall result is that the applicants hold their native title as a community embracing the seven estate groups. The intramural distribution of native title rights and interests comprising that native title is a matter of allocation according to traditional laws and customs. The membership of the community includes persons recognised as members by virtue of birthplace connection, adoption or spousal affiliation in accordance with traditional laws and customs. The native title holders do not have exclusive rights of the kind which would entitle them to prevent access to the determination area by third parties except in the Hatches Creek townsite. They do however retain a range of rights over the determination area including the right to hunt and fish and use the resources of the land, the right to live on the land and to camp and erect shelters and other structures there. They have the right to engage in cultural activities on the land and to teach its physical and spiritual attributes. They have the right of access to maintain and protect places of importance on the land. They retain the right to share or exchange subsistence and other traditional resources. However this does not extend to a right to trade. In relation to the part of the determination area identified as the town of Hatches Creek, their native title rights and interests are exclusive of the rights and interests of others.
The native title determination application
The native title determination application, which is the subject of this appeal, was lodged with the Tribunal on 20 November 1995 under the provisions of the NT Act which at that time required applications to be lodged first with the Tribunal and then, following a registration process, to be the subject of mediation by the Tribunal. The application was opposed and was unable to be resolved through mediation. It was referred to the Court pursuant to s 74 of the NT Act on 20 May 1998. Since being referred to the Court the application has been amended pursuant to orders made in July and September 1999 and March 2001.
At the time that the application went to trial there were twelve named applicants representing the native title claim group which was described as the ‘Alyawarr, Kaytetye, Warumungu, Wakaya Aboriginal People’. They are the first respondents to this appeal but will be referred to as the applicants. The applicants were described in the application as Alyawarr, Kaytetye, Warumungu and Wakaya Family Representatives who hold native title along with all other members of their families. The applicant families were said to encompass and represent the interests of the Alyawarr, Kaytetye, Warumungu, Wakaya and other Aboriginal people with traditional connections in the application area. The application described the native title claim group as comprising seven different sub-groups termed ‘land holding groups’. Each was said to be particularly affiliated with land and waters located in different parts of the application area. The names of the seven landholding groups and the applicants associated with each of those landholding groups as appears in the original application were as follows:
Arrawatyen Kwentyey (Gordon) Jangala Nappa
Lesley Foster AmpetyanAntarrengeny Nita Holmes Akemarr
Albert Bailey AkemarrKeranty/Anurret Kwementyey (Peggy) Wickham Apetyarr
(referred to by either of Barry Wickham Apetyarr
these names)Lyentyawel Ileparranem Peter Peterson Apetyarr
(referred to by either of Alan Philimac Kngwarrey
these names)Tyaw Alan Philimac Kngwarrey
Jemima Foster ApetyarrWarwepenty Murphy Jappanangka
Jorna Murphy NappingardiKelatnyerrang Jimmy Jones Ampetyan
There was some transposition of the names of applicants against the estate groups in the judgment but nothing turns on this discrepancy.
The claim area comprises two separate areas of land lying to the east of the Stuart Highway and south east of Tennant Creek. The Davenport Ranges and the Murchison Ranges are adjacent to the claim area. The principal claim area comprises land in the Northern Territory Portions 4386 and 4387 and is the subject of Perpetual Lease CLP 1117. Portion 4386 covers 1,120 square kilometres. Portion 4387 comprises 5 hectares and 7,800 square metres. It lies on the edge of Portion 4386 towards its north west extremity. It is proposed that a national park, to be called the Davenport Ranges National Park, will be created in the area covered by Portion 4386 and that the area covered by Portion 4387 will be set aside for tourism and a camping ground.
The second claim area comprises 27.12 hectares known as the Hatches Creek Township. It is vacant crown land which was proclaimed and set apart for a proposed townsite in 1953. No township has ever been established there.
The applicants describe the general area of the Davenport and Murchison Ranges by the name ‘Ithwelepenty’. There are a number of rivers and streams flowing from the Davenport Ranges near the claim area. The Ranges contain reliable sources of water including large streams with intermittent and perennial waterholes. Water reaching the end of the creeks floods into the surrounding desert which provides high value areas for hunting and foraging. The claim area lies within the Tanami Bioregion which is the largest bioregion in the Northern Territory covering almost the entire central area from east to west. According to a Draft Management Plan for the proposed Davenport Range National Park, which Plan was prepared in 1998, the National Park will be the only major protected area within the Bioregion and will be the only major part within the Tennant Creek District.
The claim area is surrounded by four pastoral properties and land vested in an Aboriginal Land Trust. Its northern boundary is adjacent to Kurundi Station. The western side is bounded partly by Singleton Station and partly by Murray Downs Station which also adjoins its south western extremities. On the eastern section of its southern border the claim area adjoins Elkedra Station. The eastern section of the area comprises two fingers of land surrounding an area of land owned by the Anurrete Aboriginal Lands Trust. Within that Lands Trust area is the Hatches Creek townsite which comprises the second parcel of the claim. The townsite does not form part of the Anurrete Aboriginal Lands Trust as it could not be claimed under the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act), not being unalienated Crown land within the definition of that term in s 3(1) of the Act.
The application disclosed a number of existing grants and interests over all or part of the claimed areas. They included a Crown Lease in Perpetuity 1117 granted to the Corporation pursuant to the Crown Lands Act 1992 from 30 August 1993. The application also acknowledged that on 25 June 1953 the Governor-General had made a proclamation setting apart 67 acres of Crown land as town lands for the proposed township of Hatches Creek. In addition there was a long history of pastoral leasehold grants which had expired and other forms of licences and permits over the lands the subject of the application.
Schedule J to the application set out the draft order sought by the applicants. The native title rights and interests which they proposed for recognition were as follows:
(a)To possess, occupy, use and enjoy the application area.
(b)To speak for and to make decisions about the use and enjoyment of the application area.
(c)To reside upon and otherwise to have access to and within the application area.
(d)To control the access of others to the application area.
(e)To use and enjoy the resources of the application area.
(f)To control the use and enjoyment of others of the resources of the application area.
(g) To share, exchange and/or trade resources derived on and from the application area.
(h)To maintain and protect places of importance under traditional laws, customs and practices in the application area.
(i)To maintain, protect, prevent the misuse of and transmit to others their cultural knowledge, customs and practices associated with the application area.
(j)To determine and regulate membership of, and recruitment to, a landholding group.
The proceedings
The parties to the proceedings at first instance were:
1.The Applicants
2.The Northern Territory
3.The Corporation – this body was established by s 27 of the Parks and Wildlife Commission Act (NT) (the Commission Act). That Act also established the Commission. The Corporation did not participate in the hearing beyond lodging a written submission at the outset and adopting the final submissions of the Northern Territory on extinguishment.
4.Mr J Love representing the Warumungu Prospectors and Leaseholders Association. Neither Mr Love nor any other person on behalf of the Association took any part in the hearing.
5.Mr CP Eaton and Mr and Mrs C Hall who, at the time of the application, had exploration licences over part of the land comprising the claim area. They did not participate in the hearing. Their exploration licences have expired.
The parties that actively participated in the hearing were the applicants and the Northern Territory.
His Honour received evidence at a number of sites in the claim area and viewed ceremonies performed by the applicants. The bulk of the evidence other than that taken on site from Aboriginal people was expert evidence, public records and witness statements tendered by consent. The applicants’ experts were an anthropologist, Dr Craig Elliott, a historian, Dr Petronella Vaarzon-Morel, a linguist, Dr Harold Koch, and an archaeologist, Dr MA Smith. A genealogical report was also received. The Northern Territory relied upon the evidence of a linguist, Professor Francesca Merlan, and an archaeologist, Dr Scott Mitchell. His Honour observed in the judgment that the hearing was greatly facilitated by the parties and their legal representatives. The Northern Territory consented to the tender of voluminous documentary and expert evidence so that the proceedings were focussed on the real issues in the case.
There was a fair degree of agreement between the parties on the legal principles applicable. The significant exception to what his Honour described as ‘the general accord’ related to the definition of the relevant native title community. The applicants contended that the relevant native title community was that defined in their application. The Northern Territory, on the other hand, argued that the native title rights and interests were held at the level of each of the seven separate estate groups.
The judgment
The essential elements of his Honour’s judgment and his findings, insofar as they are related to this appeal, are set out below. Supplementary references to particular aspects of the judgment will be made later in relation to specific issues raised on the appeal.
The time at which the Crown first asserted sovereignty over the land in the claim area was 1788 for the area to the east of meridian 135 degrees east (in accordance with the proclamation of Governor Arthur Phillip in 1788) and 1825 for the area to the west of meridian 135 degrees east and meridian 129 degrees east (in accordance with the proclamation of Governor Darling in 1825). This reflected the findings by Olney J in Yarmirr v Northern Territory of Australia (1998) 82 FCR 533 at 551 and was not in dispute. The different dates upon which sovereignty was established over the claim area were not of significance in determining the native title claim. There was no European entry into the claim area or its environment until after 1825. There was nothing to indicate that indigenous uses of the relevant land altered significantly between 1788 and 1825.
The claim area covers only a small proportion of the country of the seven estate groups. However the learned trial judge did not think the applicants’ claims should be viewed in isolation by reference to that limited area alone. Because of prior extinguishment and previous grants under the Act a claim area might not reflect the geographical range of the traditional country of the applicant group. Evidence was therefore admitted which related to areas close to but not included within the claim area.
His Honour found that ancestors of the applicants had inhabited the claim area from before the acquisition of sovereignty (be it 1825 or 1788). The continuity of that connection had not been broken by European contact. Aspects of traditional law and customs which had been observed by ethnographers, Spencer and Gillen, in 1901 dated back to sovereignty and earlier. That conclusion was supported by reference to the intricacy of those laws and customs and the almost complete absence of European contact prior to 1871.
The traditional laws and customs observed by the applicants had continued substantially uninterrupted since sovereignty in relation to the claim area and its surrounds. The evidence to that effect was strong. It came from the ethnographic material, from reports of European settlers in the area, from the historical and anthropological evidence and from the oral evidence of a significant number of members of the putative claimant group. The Northern Territory acknowledged that the expert evidence demonstrated that parts of the claim area had been occupied for a considerable time in the past and that it was a reasonable inference that the present communities are descended from the Aboriginal inhabitants of the region in the sense that there is a substantial degree of ancestral connection between the community now in place and the original community. His Honour said (at [112]):
‘I have found that the original community or landholding groups or claim group of the area were an identifiable community and an organised society under traditional laws and traditional customs.’
The Northern Territory contended, however, that the claim group was not a true single community of native title holders but a confederation resulting from the fragmentation of the remaining areas of traditional use and occupation by European utilisation of the claim area. His Honour found that the evidence clearly established a strong sense of community or ‘family’ within the applicants’ identified claim group which extended across the seven landholding groups. He cited Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at [61] for the proposition that communal native title could comprise subgroups or indeed individuals with particular rights and interest in the community’s lands. Examples were cited from the judgment of Lee J in Wardv Western Australia (1998) 159 ALR 483 at first instance, the judgment of Olney J in Yarmirr and that of Sundberg J in Neowarra v State of Western Australia [2003] FCA 1402. His Honour held that the claimant group was one community operating under a common set of laws and customs and containing sub-groups with particular responsibilities under the common laws and customs.
The claim group or community had its ancestral source in the community which occupied the claim area at the time of sovereignty. The evidence demonstrated, at that earlier period, the existence of a communal title wider than an estate based title. The Aboriginal evidence indicated that within the claim area there was one set of avoidance relationship rules, one set of mourning customs, one set of gender restriction rules and the same general rules relating to looking after country, whether or not the country was specifically identified by reference to a particular estate group. There were aspects of common ceremonial practice consistent throughout the claim area which did not differ by reference to separate estate groups. There was no significant evidence to indicate that individual country or estate groups functioned separately as communities with different rules or customs or with different ceremonies or with separate and isolated residential arrangements. They shared ceremonies and members of each of the four language groups would attend them. There was considerable evidence of marriage between linguistic or tribal groups and between members of different estate groups within the claim group. There was a set of rules to determine whether proposed marriages were permissible in accordance with traditional laws and customs. There was commonality of ceremonial and dreaming connections in the claim area between the four language or tribal groups and between the seven estate groups. Those connections extended across the areas of the different tribal estate groups. Ceremonies carried out throughout the claim area were and had been the same wherever the ceremonies were conducted and irrespective of estate groups. These included ceremonies relating to young man’s business, womens’ awely ceremonies, mourning customs and the like. His Honour said (at [140]):
‘The same traditional laws and customs regulate throughout the claim area what a particular person is entitled to know or to see, or to participate in, and what particular places a person is entitled to go to.’
The hunting practices and use of bush resources by the applicants were consistent and shared among all members of the claim group independently of particular estate groups. There was no evidence of separate estate groups conducting ceremonies independently of the other groups or in other ways regarding themselves as a separate community distinct from a general community in the claim area.
His Honour referred to the evidence of both Dr Elliott and Dr Koch as expressing the view that there were no different systems or principles of land tenure operating in different parts of the claim area notwithstanding the existence of the seven separate estate groups. The relative ‘definability’ of areas applicable to each estate group seemed, on Dr Koch’s evidence, to correlate to some extent with the availability of reliable water supplies.
In dealing with the submissions put by the Northern Territory about the existence of the estate groups as separate landholding entities, his Honour referred to evidence relied upon by the Northern Territory that each estate group had ‘its own country’. So the evidence of Kurundi B Kngwarrey was that the Kaytetye people at Hatches Creek had their own country at or near the Barrow Creek area. He described an area known as the ‘Black Tank’ area which was at Alepeyewenh in the land of the Anurette as being his particular country. He did not think he had the right to talk about any other country. A number of witnesses had used the expression ‘my country’ or ‘my father’s country’ to refer to particular parts of the country. His Honour observed that this evidence generally referred to the place where the particular witness grew up or with which the witness had a particularly strong link.
The Northern Territory submitted to his Honour that there were handover points in the claim area where there was a shift in the responsibility of the land or dreaming stories so that the persons entitled to exercise comparable rights over the land moved from one landholding group to another. There was also evidence of certain dreamings passing from one group to another from the claim area and its surrounds to other groups unrelated to the four language groups or the seven estate groups within them. Despite the Northern Territory’s submissions in reliance upon these matters, his Honour agreed with Dr Elliott’s conclusion that the seven landholding groups in combination operate as a community. Dr Elliott said, in a passage quoted by his Honour (at [146]):
‘This is evidenced in that the applicants claim kinship relatedness (both through descent and intermarriage) and regard themselves as “one mob” with “one law” (over and above localised territorial affiliations); they share in common a wide variety of social and religious customs and beliefs; many applicants habitually reside together in the same locations and exist in a common social universe, both historically and currently. These communal interrelationships are not inhibited in any sense by language differences, since multilingualism in the application area is quite widespread and the local form of ‘Aboriginal English’ is ubiquitous.’
His Honour found a sophisticated structure for membership of the community and responsibilities for the claim area demonstrated by the traditional laws and customs of the claim group. Indicative of the existence of the wider claim group to which he referred, certain members of the claim group claimed to have the status of kwertenital for country or parts of the claim area where they had no known genealogical relationship but which arose because of their close connections with people who worked on that country.
His Honour found that the evidence indicated that apmerek-artwey were members of the claim group by patrilineal descent who could fairly be described as owners of the estate or the traditional owners of it and sometimes as ‘boss’ of the land. Kwertengerl, which arises through persons who identify with an estate through their mother’s father, their father’s mother or their mother’s mother, were caretakers of the land through matrifiliation with a limited and proximate principle of succession. In addition to the formal structure of the ranking system, the evidence indicated exceptions based on knowledge, seniority and long term residence. In the estate area of Lyentyawel-Ileparranem, where there were limited surviving members of the group, a man called Alec Petersen knew the country and had the responsibility of looking after it even though he was not part of the direct lineal descent group. This is because he was born close to that country and was given that responsibility by a person from that country.
In Dr Elliott’s supplementary report he described, correctly as his Honour found, the effect of the evidence thus (at [150]):
‘... an underlying basis for the right to exercise territorial rights is knowledge: that is, whether an individual “knows” the country or not. The local belief is that someone who “knows” the country will know where to go and where not to go; what activities are permissible and those that are not; in the company of who and for how long etc. An individual possessing this knowledge and attendant rights is highly likely to be a member of the applicant community and, as far as practicable, obliged to regulate the territorial rights of others (including Aboriginal “strangers” and non-Aboriginal “strangers”) by participating in meetings over land interest issues.’
His Honour considered the membership of the native title claim group and found that acquisition of rights by ‘descent’ includes acquisition by those who have been adopted as minors and have been ‘grown up’ as children of adopted parents so that the child is placed into the group as biologically descended from the adoptive parent. The evidence on that topic was uncontested.
The question whether native title rights and interests could arise simply by birth on the claim area was not clearly resolved on the evidence. His Honour was of the view that the simple fact of birth on the claim area was not sufficient to establish membership of the claim group but that, under the traditional laws and customs of the group, subsequent activities and acceptance as a member of the community through knowledge and/or participation in the activities of the group enabled such membership to be established. It was not necessary to identify precisely how that occurred. That was a matter for the traditional laws and customs of the claim group.
In relation to marriage and the position of spouses, his Honour found that membership of the claim group with some native title rights and interests in the claim area could be acquired by marriage to a person who was a member of the claim group. The consistent picture presented by the evidence was that a spouse of a member of the claim group was regarded as, and became a member of, the group with some native title rights and interests in respect of the claim area. The determination as to their nature and extent was a matter for the traditional laws and customs of the group. His Honour did not find it necessary to determine them.
Turning to the content of the native title rights and interests, his Honour found that there is a customary right of the applicants and the claim group to occupy, use and enjoy the claim area. That right rested primarily with the apmerek-artwey, the kwertengerl and the anyanyarl-akem of the particular estate group whose country was in question but it was plain that the applicants generally have rights of use and enjoyment over the claim area in accordance with the traditional laws and customs of the claim group. His Honour held that the nature and extent of each individual’s rights are best determined by the traditional laws and customs of the claim group, but are obviously dependent upon the extent to which the individual knows the particular part of the claim area.
The evidence about control of access of others to the claim area was not so clear. There was no evidence of significant instances of persons other than the claim group seeking to come on to the claim area or to use its resources with or without their permission. There was evidence that Warlpiri persons and others came onto and worked around Hatches Creek during the time that it was functioning as a mine. There was no suggestion that they sought the permission of members of the claim group to do so, or that any action was taken to prevent them coming into that part of the claim area. The evidence was that Aboriginal people from other regions and non-Aboriginal people should ask the applicants for permission to enter the country essentially so that they could be told not to damage sacred places and so that they could be told how to preserve the resources of the area. His Honour concluded that, primarily for the purpose of protecting sacred sites and the resources of the claim area, the traditional laws and customs of the claim group involved the exercise and assertion of a right to control access of others to the claim area. Persons were expected to seek permission before entering the claim area and would be removed if they did not comply with the terms of such permission.
The use or exercise of the right to use and enjoy the resources of the claim area was found to be amply supported. While there was little or no evidence of actual control of the use and enjoyment by others of the resources of the claim area, that might simply be because the occasion for the assertion of that right did not routinely arise. It was consistent with the evidence that the applicants, under their traditional laws and customs, have the right to share, exchange or trade subsistence and other traditional resources obtained from the land and waters constituting the claim area. The learned trial judge drew a distinction between asserting the right to take flora and fauna from the area and the right to ‘own’ the flora and fauna of the claim area. There could be no finding that the applicants had property in the flora and fauna in the claim area.
His Honour found a right and a serious obligation on the applicants to physically maintain and protect places of importance in the claim area according to their traditional laws and customs and that this had been done over a long period of time. The evidence as to where that obligation lay in respect of particular places of importance was complex and sophisticated. It was not necessary to refer to its detail. The claim group, in accordance with its traditional laws and customs, exercised the right to regulate and prevent the disclosure of its beliefs and practices including songs, rituals, ceremonies and representations of sacred images which relate to areas of land or waters within the claim area. This was not disputed by the Northern Territory which contended, however, that the asserted right was not a native title right because it was not one which related to the land.
His Honour was satisfied that the claim group, according to its traditional laws and customs, has the right to regulate and determine its membership. He concluded that the claim group, according to its traditional laws and customs, enjoys the rights and interests within the claim area which were asserted in the proposed determination.
The question of extinguishment was next considered. The applicants accepted that the right to exclude all others from the claim area was extinguished by the grant of pastoral leases that conferred rights inconsistent with the native title right to control access to the land. That acknowledgment was found to be appropriate having regard to the High Court’s decision in Western Australia v Ward (2002) 213 CLR 1 (Ward HC) and, in particular, the judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ at [192], [417] and [422]. The claim to exercise native title rights and interests in respect of Hatches Creek to the exclusion of all others was maintained.
His Honour referred to the legal basis for the grant of pastoral leases in the Northern Territory and generally to principles relating to extinguishment. He considered particular extinguishing acts. The only current instrument granting rights in respect of the land claim area is the Perpetual Lease CLP 1117 in favour of the Corporation. There is no current grant relevant to Hatches Creek. Historically, all of the claim area has, between 1881 and 1902, been subject to pastoral leases. There have also been other pastoral tenures including pastoral claims and permits and grazing licences.
Since October 1881 the claim area has been subject continuously, in various parts and at various times, to a total of 20 pastoral leases. The first relevant pastoral lease (PL 207) was issued under the Northern Territory Land Act 1872 (SA). It covered only a small section of the southern boundary of the claim area. It was cancelled on 3 April 1890. It had been granted for ‘grazing and other pastoral purposes’ and was subject to reservations including reservations ‘for and on account of the present Aboriginal inhabitants of the Province and their descendants’. The reservation guaranteed:
‘...full and free right of ingress, egress and regress into and upon, and over the said Waste Lands of the Crown hereby demised and every part thereof and in and to the springs and surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this demise had not been made.’
Further pastoral leases had been granted by 1890 under the Northern Territory Crown Lands Consolidation Act 1882 (SA). Some of these covered the whole of the eastern part of the claim area to an area a little to the west of the Anurette Aboriginal Lands Trust area. Each was for grazing and other pastoral purposes and contained a reservation of rights for Aboriginal occupants and their descendants in terms similar to those which operated under the 1872 Act. Pastoral leases also issued in respect of the western part of the claim area and they were granted under the Northern Territory Crown Lands Act 1890 (SA). Each of them contained the reservation in favour of Aboriginal people in similar terms. The pastoral leases had all been cancelled by 16 January 1902. There followed an hiatus and then a regime of pastoral permits and grazing licences which was established until 1922, first through South Australia and then through the Commonwealth.
Two pastoral leases, issued in October 1921 under the Crown Lands Ordinance 1912-1923 (Cth), covered a large proportion of the principal claim area and areas to its north, but not its northwest section or its south eastern section. They did not contain any reservation in favour of Aboriginal people. Subsequently three leases were issued under the Crown Lands Ordinance 1924-1927 and a further pastoral lease under the Crown Lands Ordinance 1931-1959 (Cth).
Three pastoral leases commenced on 1 July 1928 covering all of the claim area other than its northwest section and Hatches Creek. One of those leases was determined in 1938 and two others in July 1962. There were grazing licences issued over the area of the first determined pastoral lease and in 1956 the remaining north western portion of the claim was occupied together with an area to its west by Grazing Licence 1583. That licence was cancelled on 8 April 1958 but subsequently became Grazing Licence 1658 issued on 11 August 1958 which expired on 30 June 1959.
The Northern Territory maintained that there had been partial extinguishment of Aboriginal rights and interests in respect of the claim area generally. It did not contend that any of the pastoral leases granted in respect of the principal claim area or Hatches Creek were previous exclusive possession acts as defined in s 23B of the NT Act. Rather, it submitted that they were previous non-exclusive possession acts as defined in s 23F(2) of the Act, being non-exclusive pastoral leases which were valid and granted before 23 December 1996. Native title rights had been extinguished to the extent of the inconsistency with the rights and interests granted under the pastoral leases.
His Honour concluded that native title rights to control access to the claim area and to make decisions about its use were not so inconsistent with rights under the pastoral leases as to result in their total extinguishment. The right to make such decisions was extinguished only to the extent that it was inconsistent with the rights of a pastoral lessee to make decisions concerning those matters. He referred to the Full Court in Western Australia v Ward (2000) 99 FCR 316 (Ward FC 1) and the High Court in Ward HC. He held that a general right to make decisions about the use and enjoyment of the land, subject to the rights of pastoral lessees and others who may use the land under statutory or other entitlements, was not of itself inconsistent with the rights of a lessee to make decisions about the land for pastoral purposes. His Honour gave as an example of such decisions the decision that a type of bush food should not be exploited in certain areas at certain times.
The Perpetual Lease CLP 1117 was granted to the Corporation in perpetuity to carry out the functions of the Parks and Wildlife Commission in accordance with the Territory Parks and Wildlife Commission Act (NT) and the Territory Parks and Wildlife Conservation Act (NT). His Honour held it to be a Category D past act and, as was common ground between the parties, not a previous exclusive possession act. As a Category D past act it was validated by s 8 of the Validation (Native Title) Act 1999 (NT) (the Validation Act) and the non-extinguishment principle applied. It was wholly inconsistent with the continued existence of a non-exclusive native title right to control access of persons to the principal claim area. It was also wholly inconsistent with the continued existence of a continuing non-exclusive native title right to make decisions about the principal claim area. By reason of the grant of CLP 1117 the principal claim area came under the care, control and management of the Parks and Wildlife Commission. This had the effect, in his Honour’s judgment, that the applicants’ native title rights and interests had not been further extinguished by CLP 1117 beyond the extinguishment effected by previous pastoral leases.
His Honour then considered public works in the principal claim area, including access roads, a camping area and camp site and a day-use and camping area. The works were valid notwithstanding that there had been no declaration of a proposed park which it was proposed they would serve.
His Honour considered the application of s 47B of the NT Act to the Hatches Creek townsite. In order to take advantage of s 47B, it was necessary that the native title claim group establish that one or more of its members had occupied Hatches Creek at the time of the application. There was no direct evidence on that topic. But the evidence led to that inference. Members of the native title group resided nearby and in the traditional way hunted and traversed land including Hatches Creek. Occupation at the time of application having been established, he was satisfied that s 47B did apply to Hatches Creek and that the rights of the claim group which he had found to exist were, in relation to Hatches Creek, exclusive. This result flowed from the facility provided by s 47B for the disregarding of prior extinguishing acts where its conditions were satisfied.
His Honour then discussed the precise terms of the determination including the native title rights and interests to be included in it.
Grounds of appeal
The issues emerging from the grounds of appeal, as set out in the notice of appeal, could broadly be defined as follows:
1.Whether his Honour erred in the identification of the native title holders as a group comprising:
(i) the members of the seven landholding groups;
(ii) persons with birthplace affiliations to the claim area;
(iii) spouses of members of the landholding groups;
and whether he adequately defined the members of the group (grounds 1 to 10 and 51 to 53).
2.Whether his Honour erred in his formulation of various of the native title rights and interests and his inclusion of certain others having regard to:
.the requirement that the native title rights and interests relate to the land and waters in the determination area;
.the extinguishing effects of historical grants of pastoral leases negating the exclusive aspects of pre-existing native title rights and interests (grounds 11 to 47, 55 and 56).
Under the rubric of ground 47 the Northern Territory also sought the insertion of a provision in the determination that all native title rights and interests determined were of no effect during the currency of CLP 1117 other than the rights to use the area for hunting, food gathering, religious and ceremonial purposes.
3.Whether s 47B of the NT Act had application to the Hatches Creek townsite (grounds 45 to 50).
One aspect of the grounds relating to the Hatches Creek townsite area reflected a contention not agitated before his Honour. That was whether, because of a 1953 proclamation affecting the area, the applicants could not rely upon s 47B to disregard historical pastoral lease extinguishment. The Northern Territory government’s contention was based upon the proposition that the proclamation of the townsite made in 1953 was a proclamation of the kind referred to in s 47B(1)(b)(ii) and so excluded the area covered by it from the operation of the section. The second limb of the grounds relating to s 47B was that the learned trial judge erred in finding that the applicants ‘occupied’ that part of the claim area at the time of the application.
A cross-appeal was filed proposing a number of changes to the determination which will be dealt with below. It did not raise any major issues of principle.
Statutory framework – The Native Title Act 1993 (Cth)
It is sufficient for present purposes to set out the provisions of the NT Act on which the submissions in this appeal were focussed. The two principal provisions which were the subject of debate were s 223, which defines native title and native title rights and interests, and s 225, which defines the content of a determination of native title. Section 47B, dealing with the qualified revival of native title against prior historical extinguishment, was also debated.
Section 223 provides, in the relevant parts:
‘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.’
Subsections (3), (3A) and (4) are not material for present purposes.
Section 225 provides:
‘A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.’
Section 47B of the Act appears in Div 4 of Pt 2 of the Act entitled ‘Other Provisions Relating to Native Title’. It provides, in the relevant parts:
‘When section applies
(1) This section applies if:
(a)a claimant application is made in relation to an area; and
(b)when the application is made, the area is not:
(i)covered by a freehold estate or a lease; or
(ii)covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii)subject to a resumption process (see paragraph (5)(b)); and
(c)when the application is made, one or more members of the native title claim group occupy the area.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to this application, any extinguishment, of the native title rights and interests in relation to the area (sic) that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.
Effect of determination
(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i)the validity of the creation of any prior interest in relation to the area; or
(ii)any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b)the non-extinguishment principle applies to the creation of any prior interest in relation to the area.
...’
Subsections (4) and (5) of the section are not material for present purposes.
The developing law of native title
The primary questions to be decided by the Court upon an application for a native title determination are whether or not native title exists in relation to a particular area, if so who holds it and what is the nature and extent of the native title rights and interests in relation to that area.
The class of ‘native title rights and interests’ is defined in s 223 of the NT Act. In considering the construction and application of that definition it is desirable to keep in mind the stated purpose of the Parliament in enacting the NT Act. The Preamble to the Act sets out ‘... considerations taken into account by the Parliament of Australia in enacting the law ...’. Those considerations include:
(i)the acknowledgment of the Aboriginal and Torres Strait Islander people as the original inhabitants of Australia;
(ii)their uncompensated and involuntary dispossession;
(iii)their comprehensive social disadvantage in Australian society.
The Preamble refers to and recites the proposition taken from the decision of the High Court in Mabo (No 2) that:
‘[T]he common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands.’
It also declares the intention behind the enactment of the NT Act thus:
‘(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.’
The Preamble declares the moral foundation upon which the NT Act rests. It makes explicit the legislative intention to recognise, support and protect native title. That moral foundation and that intention stand despite the inclusion in the NT Act of substantive provisions, which are adverse to native title rights and interests and provide for their extinguishment, permanent and temporary, for the validation of past acts and for the authorisation of future acts affecting native title. The first of the main objects of the NT Act set out in s 3(a) is:
‘to provide for the recognition and protection of native title;’
The overview of the NT Act, in s 4(1) states:
‘This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.’
The idea of recognition is central to the common law of native title and of the NT Act. The common law and the NT Act define the circumstances in which recognition will be accorded to native title rights and interests and the conditions upon which it will be withheld or withdrawn. It is a concept which operates in a universe of legal discourse. It derives from the human act by which one people recognises and thereby respects another. By the process, which it names, aspects of an indigenous society’s relationship to land and waters are translated into a set of rights and interests existing under non-indigenous laws. The choice of the term ‘recognition’ links it to the normative framework established by the common law and by the Act itself as evidenced in the Preamble. Recognition is not a process which has any transforming effect upon traditional laws and customs or the rights and interests to which, in their own terms, they give rise. The term ‘extinguishment’ merely refers to the withholding or withdrawal of recognition of native title rights and interests where the exercise of non-indigenous sovereignty is reflected in legislative or executive acts inconsistent with such recognition. Extinguishment, like recognition, is silent on the rights and interests which arise under traditional law and custom and the relationship which they may reflect between an indigenous society and its country.
As the High Court observed in Fejo v Northern Territory (1998) 195 CLR 96, native title originates in the traditional laws acknowledged and customs observed by the indigenous people who possess the native title. It is not an institution of the common law nor a form of common law tenure, but is recognised by the common law. The Court perceived ‘an intersection of traditional laws and customs with the common law’ (at 128). While the existence of the traditional laws and customs is a necessary condition for the existence of native title it is not a sufficient basis for its recognition.
The rules which govern the recognition of native title rights and interests at common law were set out in the decision of the High Court in Mabo (No 2). The basic propositions to be derived from that case are:
1.The colonisation of Australia by Great Britain did not extinguish rights and interests in land held by Aboriginal and Torres Strait Islander people according to their own law and custom.
2.The native title of Aboriginal and Torres Strait Islander people under their law and custom will be recognised by the common law of Australia and can be protected under that law.
3.When the Crown acquired each of the Australian colonies it acquired sovereignty over the land within them. In the exercise of that sovereignty native title could be extinguished by laws or executive grants that indicated a plain and clear intention to do so – eg grants of freehold title.
4.To secure the recognition of native title it is necessary to show that the Aboriginal or Torres Strait Islander group said to hold the native title:
(a)has a continuing connection with the land in question and the rights and interests in the land under Aboriginal or Torres Strait Islander traditional law and custom, as the case may be;
(b)continues to observe laws and customs which define the ownership of rights and interests in the land.
5.Under common law, native title has the following characteristics:
(a)it is communal in character although it may give rise to individual rights;
(b)it cannot be bought or sold but can be surrendered to the Crown;
(c)it may be transmitted from one group to another according to traditional law and customs;
(d)the traditional law and custom under which native title arises can change over time and in response to historical circumstances;
(e)native title is subject to existing valid laws and rights created under such laws.
A global statement of these propositions appeared in the judgment of six justices of the High Court in Western Australia v Commonwealth (1994) 183 CLR 373 (at 452-3):
‘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.’
The importance of the spiritual, cultural and social connection of the people with the land as an aspect of the ‘socially constituted fact of native title rights and interests that is recognised by the common law’ was acknowledged in Yanner v Eaton (1999) 201 CLR 351 at 373 per Gleeson CJ, Gaudron, Kirby and Hayne JJ. Their Honours cited and adopted the observation of Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 (at 358):
‘Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights.’
And the further statement by Brennan J (at 358):
‘Traditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it.’
The communal character of native title emerges from the observations of Brennan J in Mabo (No 2) (at 62) that:
‘A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community’s lands.’
His Honour also said that the recognition of the rights and interests of a sub-group or individual which are dependent upon a communal native title is not prevented by the absence of a communal law for the resolution of any point in contest between rival claimants. Such points may be settled by community consensus or in some other customary manner.
Notwithstanding the existence of groups and individuals with particular native title rights and interests in Mabo (No 2) the form of declaration made by the Court was global, namely that the Meriam people were entitled ‘as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’.
Under s 225 of the NT Act, read with s 223, the Court is required to identify, in relation to the determination area, ‘rights and interests ... possessed under the traditional laws acknowledged and the traditional customs observed’ by the relevant peoples. The people, by those laws and customs, must have a connection with the land or waters and the rights and interests must be recognised by the common law of Australia. These aspects of the definition of native title rights and interests have their origin in the majority judgment in Mabo (No 2) and could not have been intended to undercut the fundamental principle of the communal character of native title.
The High Court has focussed attention on the statutory definition of ‘native title’ and ‘native title rights and interests’ in its decisions in Commonwealth v Yarmirr (2001) 208 CLR 1, Ward HC; and Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422. In Yarmirr Gleeson CJ, Gaudron, Gummow and Hayne JJ identified three necessary characteristics of the rights and interests with which the NT Act deals under s 223(1):
1.They are possessed under the traditional laws acknowledged and the traditional customs observed by the people concerned.
2.The people, by those laws and customs, must have a ‘connection’ with the land or waters.
3.The rights and interests must be recognised by the common law of Australia.
No prior assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are those supported by some communally organised and enforced system of sanctions. Although the reference to rights and interests enjoyed under traditional laws and customs requires or invites attention to how breaches of rights and interests might be dealt with, it also invites attention to how they are observed (at 39 [16]).
In the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward HC, their Honours said of s 223(1)(b) (at 85 [64]):
‘In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a “connection” with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters in question.’
It also emerges from their Honours’ judgment that while the use to which land or waters are put may indicate the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned, the absence of evidence of recent use does not lead necessarily to the conclusion that there can be no relevant connection. That depends upon the content of the traditional law and custom and what is meant by ‘connection’ by those laws and customs. As to that, their Honours expressed no view on the nature of the connection that must be shown to exist or when a ‘spiritual connection’ would suffice.
In Yorta Yorta the centrality of the statutory definition of native title rights and interests and ‘determination of native title’ was emphasised. A determination under the NT Act was said to be ‘... a creature of that Act, not the common law’ (per Gleeson CJ, Gummow and Hayne JJ at 440 [32]). Three characteristics of native title rights and interests which can be the subject of a determination under the NT Act were stated thus:
1.They must be possessed under the traditional laws acknowledged and the traditional customs observed by the people concerned. That is they must find their source in traditional law and custom, not in the common law.
2.The rights and interests must have the characteristic that by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those people have a ‘connection with’ the land or waters. The source of the connection is traditional law and custom, not the common law.
3.The rights and interests in relation to land must be recognised by the common law of Australia.
The traditional laws or customs which are the source of the native title rights and interests must have a ‘normative content’. They must derive ‘from a body of norms or normative system – the body of norms or normative system that existed before sovereignty’ (Yorta Yorta at 441 [38]). This does not require fine distinctions to be drawn between legal rules and moral obligations. The interests may arise under both law and custom. There nevertheless must be some kind of ‘rules’ which have a ‘normative content’. Absent such rules there may merely be observable behaviour patterns but no rights or interests in relation to the land.
In order to be cognisable by the common law any rights and interests in the land must have their origin in the system of traditional law and custom in existence at the time of the acquisition of sovereignty by the Crown. After sovereignty that system of traditional law and custom could not validly create new rights or interests cognisable by the common law (Yorta Yorta at 443 [43]). That does not prevent the recognition of rights and interests transmitted according to rules of transmission which existed at sovereignty. Nor does it prevent the significant adaptation of traditional law and custom post-sovereignty. The joint judgment in Yorta Yorta required that (at 444 [46]):
‘... the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown.’
The normative system must have had ‘a continuous existence and vitality since sovereignty’ (444 [47]). Any interregnum in its existence would cause the rights and interests derived from it to cease beyond revival in the eyes of the common law (445 [47]).
The laws and customs, from which the native title rights and interests derive their existence, must necessarily be those of a society or group. This proposition was derived from the general observation of Professor Honore that ‘all laws are laws of a society or group’ (445 [49]-[50]). It followed that the rights and interests possessed under a body of laws and customs are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes them. If that society ceases to exist so too do the laws and customs which it observed. When a society that existed at sovereignty ceases to exist and its laws and customs are adopted post-sovereignty by some new society the rights and interests to which they give rise would not be rooted in post-sovereignty laws and customs (446-447 [52] and [55]). The Court said (at 447 [55]):
‘... laws and customs and the society which acknowledges and observes them are inextricably interlinked.’
The consequence of these considerations is that the inquiry in relation to native title rights and interests under s 223 requires consideration of the relationship between traditional laws and customs now acknowledged and observed and those which were acknowledged and observed at the time of the acquisition of sovereignty by the Crown. It must be shown that the society under whose laws and customs the native title rights and interests are said to be possessed has continued to exist from sovereignty to the present day ‘... as a body united by its acknowledgment and observance of the laws and customs’ (at 457 [89]). However, change or adaptation in traditional law and custom or some interruption of enjoyment or exercise of native title rights is not necessarily fatal to that continuity (at 455 [83]).
The elements of a determination of native title are set out in s 225. It requires a determination of ‘who the persons, or each group of persons, holding the common or group rights comprising the native title are’. That requires consideration of whether the persons said to be native title holders are members of a society or community which has existed from sovereignty to the present time as a group, united by its acknowledgement of the laws and customs under which the native title rights and interests claimed are said to be possessed. That involves two inquiries. The first is whether such a society exists today. The second is whether it has existed since sovereignty. The concept of a ‘society’ in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta. The relevant ordinary meaning of society is ‘a body of people forming a community or living under the same government’ – Shorter Oxford English Dictionary. It does not require arcane construction. It is not a word which appears in the NT Act. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as ‘societies’. The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes.
The determinations which may be made under s 225 cover a range of possibilities which depend upon the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title rights and interests claimed. In some cases the members of the community identified as the relevant society may enjoy communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans. This was the case in Sampi v State of Western Australia [2005] FCA 777. The relevant community in that case was geographically confined to the Dampier Peninsula. Lawmen had global responsibilities encompassing law grounds in each of the clan estates. There was an area accessible to all members of the community and regency arrangements in relation to vacant estates. The traditional laws and customs, as explained in the evidence, supported a principle of communal ownership.
If, on the other hand, the society identified as the repository of the traditional laws and customs is a cultural bloc whose members are dispersed in groups over a large arid or semi-arid area an inference of communal ownership of native title rights and interests derived from its laws and customs may be difficult if not impossible to draw. In De Rose v State of South Australia (No 2) [2005] FCAFC 110 the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part. That was identified as the Western Desert Bloc. It was not necessary that the native title holders constituted a society or community in their own right. Each case will, of course, depend upon its own facts.
There have been native title determination cases, preceding the decision in Yorta Yorta, which involved multiple groups. These were cited as well as post Yorta Yorta cases, but each turns on the facts found at first instance. In Ward, Lee J found the Miriuwung and Gajerrong groups, which were territorially adjacent and shared economic and social links, could be regarded as a composite community with shared interests. There was ‘an ancestral connection’ with the Aboriginal community or communities which occupied the claim area at sovereignty. The historical ‘societal’ analysis described in Yorta Yorta was not expressly adverted to. There may be a question whether ancestral connection with a pre-sovereignty community would be sufficient to establish the continuity of traditional law and custom required under the NT Act as interpreted in Yorta Yorta although in context it may amount to a finding of societal continuity. The Full Court rejected a contention on appeal that the evidence before the trial judge did not show that the Miriuwung and Gajerrong people were a single community. Although there were witnesses whose full array of rights only existed in particular estate areas, this did not preclude the existence of ‘a Miriuwung and Gajerrong community which acknowledges and observes traditional laws and customs under which different members of the community employ differing arrays of rights within and outside their particular family or estate country’ – Ward FC 1 at [239]. What this says, relevant to the present case, is that a composite community of estate holding groups may comprise a community which enjoys communal ownership of the native title rights and interests albeit there may be intramural allocations between particular family or clan groups or other sub-sets of the community.
In Yarmirr, the applicants were members of five different estate groups. Although each estate group asserted traditional rights in respect of discrete areas of land and sea their members saw themselves as a single community and brought their application on that basis. Olney J, who was the trial judge, said (at 570):
‘Such an approach was adopted in the declaration made in Mabo (No 2) and was clearly contemplated by the reference in s 223(1) of the Native Title Act to “the communal group or individual rights and interests of Aboriginal peoples ...”.’
His Honour made a global determination in that case that the native title was held by the members of the several clans.
Wandarang People v Northern Territory (2000) 104 FCR 380 was an application by twelve groups of Aboriginal people in respect of land and waters associated with four language groups on the basis that the claim area encompassed the whole or part of the traditional country of the several groups. In that case the Northern Territory accepted that the community of native title holders comprised the members of the twelve groups. It was also common ground that the contemporary claimant community had a ‘substantial degree of ancestral connection’ with the original inhabitants of the claim area.
In Neowarra, the State submitted that the native title should be recognised on a ‘dambun’ or perhaps language level. But Sundberg J found that the claimants regarded themselves as part of a community. There was an emphasis on shared customs and traditions that transcended the particular dambun or language area with which individuals were associated. His Honour rejected a dambun-based formulation of the native title rights and interests in that case because it ‘... would not accommodate the evidence that close relatives of dambun members have rights and interests in the land’ – (at [387]). His Honour found that evidence identified the society as the Ngarinyin, Wunanbal and Worrororra people. They were united by their acknowledgement and observance of the traditional laws and customs from which their native title rights and interests derived – (at [394]).
The Northern Territory accepted that, if its grounds of appeal 48, 49 and 50 relating to the application of s 47B to the Hatches Creek townsite were unsuccessful, then the formulation of par 5 proposed by the applicants would accord with the requirements of s 225(e) of the NT Act. On that basis the Northern Territory accepted that the applicants’ formulation of par 5 should be preferred to that which currently appears in the determination.
Having regard to the dismissal of the Northern Territory’s appeal so far as it related to the Hatches Creek townsite, par 5 should be varied as proposed by the applicants.
The cross appeal – determination paragraph 7
The applicants seek variations to par 7(a) which defines the nature and extent of other interests in relation to the main part of the claim area, namely Northern Territory Portions 4386 and 4387. The subparagraphs of par (a) with which the applicants are concerned are (iv) and (v). Paragraph 7(a)(iv) presently refers to:
‘interests of the Crown pursuant to statute or otherwise in exercise of its executive power or held as the result of the assertion of sovereignty.’
Subparagraph (v) defines:
‘rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power.’
The reformulation of these paragraphs proposed by the applicants is as follows:
‘(iv)the interest of the Northern Territory as holder of the radical title to the determination area exercisable in accordance with Part 2, Division 3 of the Native Title Act 1993 (Cth);
(v)rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power exercisable in accordance with Part 2, Division 3 of the Native Title Act 1993 (Cth).’
The applicants submitted that there is a lack of clarity in the present formulation of par 7(a)(iv) referring to interests of the Crown ‘held as a result of the assertion of sovereignty’. This formulation was apparently used in the draft determination proposed in De Rose at [922]. The applicants submitted that their proposed variation properly described the nature of the Crown’s interests in the determination area attributable to the Northern Territory as the holder of radical title.
As appears from the reasons for judgment in the present case at [192] the Northern Territory had sought the inclusion of subpar (iv) albeit its numbering in the then proposed determination would have been 9(a)(iv). His Honour acknowledged that the Northern Territory’s submission was based upon expressions used by O’Loughlin J in the De Rose case. He said (at [193]):
‘The applicants submit that the first of those proposed descriptions is a little ambiguous, but would accept the inclusion of an expression such as:
‘the interests of the Crown pursuant to statute or otherwise in the exercise of its executive power’.
Having regard to s 11 of the NT Act, the interests of the Crown to which it refers must mean the existing interests of the Crown.’
Given the acceptance by the applicants of the first limb of what is now par 7(a)(iv) there was no appealable error in the use of that formulation by his Honour. The Northern Territory accepts that the words ‘or held as the result of the assertion of sovereignty’ add little to the definition of interest in 7(a)(iv) and could be deleted. It is not immediately apparent what interests would be encompassed by that collocation. In the circumstances it should be deleted. On that basis par 7(a)(iv) will be varied to read:
‘(iv)interests of the Crown pursuant to statute or otherwise in the exercise of its executive power.’
As to par 7(a)(v) the applicants submit that s 225(c) requires a determination of the nature and extent of any other interests in relation to the determination area. They submitted that the ‘other interests’ referred to were interests in existence at the time of the determination. The proposed addition to the terms of par 7(a)(v) qualifies the relevant rights or interests by the requirement that they be exercisable in accordance with the future act provisions of the NT Act. As the Northern Territory submitted, this addition is otiose. The statutory requirements in relation to future acts and the consequences of failure to comply with those requirements exist independently of the form of the determination. There should therefore be no variation of par 7(a)(v).
To the extent that the applicants’ submissions encompassed the deletion of par 7(a)(v) those submissions are also rejected. As the Northern Territory submitted, the paragraph is a catch all provision included because of the in rem nature of determinations of native title. It was designed to ensure that rights or interests existing as at the date of determination but which have been erroneously omitted from it are not terminated or extinguished by virtue of their omission.
The cross appeal – determination paragraph 7(b)
For the reasons already outlined the Northern Territory’s appeal on the application of s 47B to the Hatches Creek townsite being unsuccessful, par 7(b) should be excluded.
The cross appeal – determination paragraph 8
Paragraph 8 of the determination specifies the relationships between the native title rights and interests described in par 3 and the other rights and interests referred to in par 7.
Paragraph 8(b) in the determination presently provides:
‘(b)(i) to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist, but have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and
(ii)otherwise, the existence of the native title rights and interests do not prevent the doing of the activity required or permitted to be done by or under the other rights and interests; and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevails over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.’
The applicants seek the deletion of par 8(b)(ii). This paragraph was par 10(b) of the Northern Territory’s proposed determination and was adopted by his Honour. The applicants’ submission was that subpar (b)(ii) adds nothing to subpars 8(b)(i) and 8(c). It was said to be implicit in those provisions that the existence of the native title rights and interests would not prevent the doing of any activity required or permitted by or giving effect to, the other rights and interests. The remaining words are repeated in par 8(c). Subparagraph 8(b)(ii) was said to be unnecessary. It is sufficient for present purposes to say that this objection does not disclose any appealable error even if par 8(b)(ii) involves some duplication.
Paragraph 8(c) presently reads:
‘the doing of any activity giving effect to the other rights and interests prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them.’
The proposed variation is:
‘Subject to subparagraph (d), the doing of any activity giving effect to the other rights and interests identified in paragraph 7(a)(i), (ii) and (iii) prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them;’
It was submitted that the first of the variations proposed is structural as par 8(c) is intended to be subject to the operation of subpar (d). The second addition was said to seek greater clarity but might be considered unnecessary. Absent agreement, it is not necessary to explore the merits of this proposed variation as it does not even purport to flow from any appealable error on the part of the learned trial judge.
The applicants also proposed the rewriting of par 8(d) which variation was said in their submissions to be ‘stylistic’. It is no part of the function of an appeal court to improve on the style of the trial judge. There must be some appealable error exposed. None was exposed by the applicants’ submission.
The cross appeal – the effect of CLP 1117 and the Note to paragraph 8(e)
CLP 1117 was granted to the Corporation in perpetuity with effect from 30 August 1993. The Corporation thereby became the lessee of the whole of the claim area other than the Hatches Creek townsite. The lease was granted to the Corporation for the purpose of carrying out the functions of the Commission in accordance with the Commission Act and the Territory Parks and Wildlife Conservation Act (NT) (TPWC Act). Under s 39(6) of the Commission Act, the Commission has the care, conduct and management of all land acquired or held by the Corporation. In the exercise of its powers the Commission is subject to the TPWC Act.
It was common ground that CLP 1117 was not a previous exclusive possession act – [281]. Nor was it a previous non-exclusive possession act. That was because it was not an agricultural or pastoral lease and did not fall within the definition of previous non-exclusive possession act set out in s 23F of the NT Act. It was accepted by the Northern Territory that CLP 1117 had the same effect as the lease to the Corporation which had been considered in Ward HC. That lease was held to confer exclusive possession on the Corporation but to have been invalidated by the Racial Discrimination Act 1975 (Cth) (RD Act) to the extent that it affected native title. The majority joint judgment in Ward HC said (at 201 [439]):
‘... there was a conferral of exclusive possession with the consequence that so much of native title rights and interests as had survived the loss of the right to be asked permission to use or have access to the land, consequent upon the preceding pastoral leases, was, subject to the operation of the RDA extinguished.’
The Corporation being a statutory authority of the Crown, CLP 1117 was a Category D past act. His Honour held that it conferred a right of exclusive possession subject to the reservations expressed in s 122 of the TPWC Act. That section provides that nothing in the TPWC Act limits the rights of Aborigines who have traditionally used an area of land or waters from continuing to use that area in accordance with Aboriginal tradition for hunting, food gathering (other than for the purposes of sale) and for ceremonial and religious purposes. The operation and effect of the Act was also expressed to be subject to the NT Act.
By virtue of s 8 of the Validation Act the non-extinguishment principle applies to CLP 1117. His Honour said (at [288]):
‘It is only the native title rights to control access to the claim area, and to make decisions about the land, which are said to have been affected by CLP 1117. Those two rights are not expressly within the reservation recognised by s 122 of the TPWC Act. In respect of the other native title rights and interests which I have found to exist, CLP 1117 has no extinguishing effect beyond that already effected by the grant of pastoral leases.’
There had been no adoption in any plan of management for a proposed park in the area under s 18 of the TPWC Act and therefore there had been no further extinguishment of native title – [291]. By reason of s 44H of the NT Act the exercise of rights under the lease would prevail over the applicants’ native title rights and interests.
In the cross appeal the applicants sought the deletion of the Note to par 8(e) on the basis that it added nothing to the other parts of par (e), particularly pars 8(b)(i) and 8(e). The deletion they sought is necessary but not for the reasons they advanced. It is necessary because the Northern Territory succeeded on its challenge to pars 3(e) and 3(f) of the determination in its application to the claim area other than the Hatches Creek townsite which is not covered by CLP 1117. The Note depends upon those paragraphs for its utility. The deletion of the Note is a consequence of their removal from the determination so far as it applies to the principal claim area.
The Northern Territory did not wish to stop at the deletion of the Note to par 8(e). It sought the insertion of a provision in par 8 to give effect to its contention that the grant of CLP 1117 as a lease conferring exclusive possession was wholly inconsistent with all remaining native title rights and interests except those referred to in s 122 of the TPWC Act. The contention was reflected in a proposed amended 8(e) which would read as follows:
‘In relation to the Northern Territory Portions 4386 and 4387 all of the native title rights and interests set out in paragraph 3 are inconsistent (as described in paragraph 8(b)(i)) with the other interests referred to in paragraph 7(a)(i), (ii) and (iii), except to the extent to which they fall within paragraph 8(b)(iv) and (v).’
Apart from being almost unreadable, the proposed variation to par 8 is not reflected in a ground of appeal. Appeal ground 47 was concerned solely with the impact of CLP 1117 on the rights determined in par 3(e) and (f).
Other rights outside the range of those with which ground 47 was concerned and arguably not covered by s 122 of the TPWC Act, include the right to live on the land and to camp, erect shelters and other structures thereon (3(b)). They also include the right specified in par 3(d) allowing access to maintain and protect places and areas of importance and the right in par 3(g) to share or exchange subsistence and other traditional resources obtained on or from the land and waters. All of these rights, on the Northern Territory’s submission, would be of no effect during the currency of CLP 1117.
The applicants said that the Northern Territory’s contentions ignored the effect of s 238 of the NT Act on the grant of CLP 1117. Section 238 defines the non-extinguishment principle and provides, inter alia:
‘(1)Effect of references This section sets out the effect of a reference to the non-extinguishment principle applying to an act.
(2)Native title not extinguished If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly.
(3)Rights and interests wholly ineffective In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act.
(4)Rights and interests partly ineffective If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.’
The other subsections are not relevant for present purposes.
In the joint judgment of the majority in Ward HC, the operation of s 238 with respect to the grant of a special lease and a Crown special lease in the Northern Territory was considered on the basis that they were Category D past acts. The Court was unable to come to any conclusion ‘whether, in respect of the remaining native title rights and interests after the extinguishment effected by the pastoral leases, the respective grants were wholly or partly inconsistent with the continued existence, enjoyment and exercise of the native title rights and interests in question’. As the applicants submitted, had the conferral of a right of exclusive possession been a relevant consideration for the purpose of s 238, the Court could have reached the conclusion that the grants were wholly inconsistent with any subsisting native title rights and interests.
While it is not disputed that CLP 1117 confers a right of exclusive possession upon the Corporation, the stated purpose of the lease is ‘Conservation Land Corporation purposes’ as set out in a search certificate. Terms and conditions of the lease appear in a Memorandum of Common Provisions which provides, inter alia, that:
‘Subject to the Act the lessee will not use the lease for a purpose other than the purpose for which it is leased.’
That purpose may be inferred from the terms of the Commission Act which gives to the Commission the care, control and management of all land acquired or held by the Corporation. The purpose of the lease is plainly related to the conservation and protection of the natural environment. It is not necessarily inconsistent with the native title rights which remain in par 3 of the determination.
The amendment to par 8 proposed by the Northern Territory is refused.
The cross appeal – determination – proposed new paragraph 8(f)
The applicants sought, on the cross appeal, to obtain the inclusion in the determination of a new subpar 8(f) to read as follows:
‘co-existing rights that are not inconsistent to any extent must be exercised reasonably, each party having regard to the interests of the other.’
His Honour declined to include this provision on the basis that the position was covered by s 44H of the NT Act.
The applicants submitted that the notion that rights should be exercised reasonably had been adopted in a number of determinations and was helpfully included as an express element of the determination. The submission is an invitation to this Court to rewrite his Honour’s determination not because of any error on his part, but because it may be a preferable way of doing things. This is not a function which this Court will adopt.
Conclusion
For the preceding reasons the appeal will be allowed in part by varying the native title rights and interests set out in par 3 of the determination. Variation in accordance with these reasons will be directed in relation to pars 3(a), (c), (e), (f) and (g) and the deletion of pars 3(h) and (i). Paragraphs 1, 5 and 7(a)(iv) will also be varied. The appeal and cross appeal should otherwise be dismissed.
Given the mixed results on the appeal and the cross appeal it does not seem appropriate to make any order other than that the parties bear their own costs. In the event that the parties seek a different order they will have the opportunity to make written submissions in that respect.
I certify that the preceding two hundred and thirty one (231) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 29 July 2005
Counsel for the Appellant: Ms RJ Webb QC and Ms SL Brownhill Solicitors for the Appellant: Solicitor for the Northern Territory Counsel for the First Respondents: Mr J Basten QC and Mr T Keeley Solicitor for the First Respondents:
Solicitor for the Second Respondent:
Central Land Council
Clayton Utz
Dates of Hearing: 22, 23 and 24 November 2004 Date of Judgment: 29 July 2005 Annexure A
Annexure B
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6002 OF 1998
BETWEEN:
THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAY NATIVE TITLE CLAIM GROUP
APPLICANTAND:
NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENTCONSERVATION LAND CORPORATION
SECOND RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
23 APRIL 2004
WHERE MADE:
ALICE SPRINGS
THE COURT ORDERS DECLARES AND DETERMINES:
1.Native title exists in relation to the determination areas which comprise the land and waters covered by the Northern Territory Portions 4386 and 4387 and the Town of Hatches Creek.
The determination area does not include the areas set out in the Schedule.
2.The persons who hold the communal or group rights comprising the native title as common law holders are the Aboriginal persons who are:
(a) members of one or more of the seven landholding groups (Arrawatyen, Antarrengeny, Akweranty/Anwerret, Lyentyawal Ileparranem, Tyaw, Warwepenty and Kelantyerrang) by virtue of descent through his or her father’s father, father’s mother, mothers’ father and mother’s mother; or
(b) recognised by the persons referred to in sub-paragraph (a) hereof, as members of one or more of the seven landholding groups by virtue of non-descent based connections, including adoption or birthplace affiliation;
(c) spouses of persons referred to in sub-paragraphs (a) or (b) and are recognised, by the persons referred to in sub-paragraph (a) hereof, as having native title rights and interests in the determination area.
3.Subject to paragraphs 4 and 5, the nature and extent of the native title rights and interests recognised by the common law in relation to the determination area are the rights set out below, including the right to conduct activities incidental to them.
(a)the right to hunt and fish together and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax and to have access to and use of water on or in the land;
(b)the right to live on the land, to camp, erect shelters and other structures, and to travel over and visit any part of the land and waters;
(c)the right to engage in cultural activities on the land, to conduct ceremonies and hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters and to participate in cultural practices relating to birth and death, including burial rights;
(d)the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements;
(e)the right to make decisions about access to the land and waters by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(f)the right to make decisions about the use and enjoyment of the land and waters and the subsistence and other traditional resources thereof, by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(g)the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters;
(h)the right to control the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters;
(i)the right to determine and regulate the membership of and recruitment to a landholding group;
4.In relation to that part of the determination area identified as Northern Territory Portions 4386 and 4387 the native title rights and interests are not exclusive of the rights and interests of others.
5.In relation to that part of the determination area identified as the Town of Hatches Creek the native title rights and interests are exclusive of the rights and interests of others, subject to subclause 7(b) hereof.
6.The native title rights and interests of members of the respective landholding groups referred to in paragraph 2 above, are held subject to and are exercisable in accordance with the traditional laws and customs of the common law holders.
7.The nature and extent of other interests in relation to the determination area (the other rights and interests) are as follows:
(a)In relation to Northern Territory Portions 4386 and 4387:
(i)the interest of the Conservation Land Corporation as the holder of Crown Lease Perpetual No 1117;
(ii)the interest of the Parks and Wildlife Commission of the Northern Territory in the care, control and management of the land comprised in Crown Lease Perpetual No 1117 pursuant to its functions and powers under the Parks and Wildlife Commission Act (NT);
(iii)the interest of the Parks and Wildlife Commission in any buildings, structures or other works constructed or established on the land;
(iv)interests of the Crown pursuant to statute or otherwise in exercise of its executive power or held as the result of the assertion of sovereignty;
(v)rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power;
(vi)rights of access to the land by agents, employees or instrumentalities of the Crown (in right of the Territory or the Commonwealth) as required in the performance of their statutory or common law duties;
(vii)the interests of members of the public with rights of access to the land arising under statute.
(b)In relation to the Town of Hatches Creek, the interest of any person with a right of access to the land conferred by or arising under a law of the Northern Territory or the Commonwealth.
8.The relationship between the native title rights and interests described in paragraph 3 and the other rights and interests referred to in paragraph 7 is that:
(a)the other rights and interests co-exist with the native title rights and interests;
(b)(i) to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist, but have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and
(ii)otherwise, the existence of the native title rights and interests do not prevent the doing of the activity required or permitted to be done by or under the other rights and interests; and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevails over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.
(c)the doing of any activity giving effect to the other rights and interests prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them;
(d)in relation to the rights and interests conferred by or arising under Crown Lease Perpetual No 1117 (the lease):
(i)the Crown Lands Act (NT) and the lease are the source of the rights and interests of the Conservation Land Corporation, the function of which is set out in s 39 of the Parks and Wildlife Commission Act (NT);
(ii)section 39(6) of the Parks and Wildlife Commission Act (NT) is the source of the rights and interests of the Parks and Wildlife Commission, the functions of which are set out in s 19 of the Act and which are limited to promoting the conservation and protection of the natural environment and the protection, conservation and sustainable use of wildlife;
(iii)the land and waters comprised in the lease have not been declared a park or reserve under s 121(1) of the Territory Parks and Wildlife Conservation Act (NT);
(iv)Aboriginal people who have traditionally used the land and waters have the right to continue to do so in accordance with Aboriginal tradition for hunting, food gathering (otherwise than for the purpose of sale) and for ceremonial and religious purposes under s 122 of the Territory Parks and Wildlife Conservation Act (NT);
(v)Aboriginal people have a right of access to sacred sites in accordance with Aboriginal tradition under s 46 of the Northern Territory Aboriginal Sacred Sites Act (NT).
(e)In relation to the Northern Territory Portions 4386 and 4387, the native title rights and interests that are not inconsistent with and may be exercised notwithstanding the other rights and interests referred to in paragraph 7(a) are:
(i)the right to use the land and waters for hunting, fishing and the gathering of traditional resources for food and other domestic purposes, according to traditional laws and customs;
(ii)the right to use the land and waters for ceremonial and religious purposes, including conducting ceremonies, participating in other cultural practices and the transmission of cultural knowledge;
(iii)the right to live on the land for the purpose of conducting such activities;
(iv)the right to make decisions about access to and the use and enjoyment of the land and waters and the traditional resources thereof, for the purpose of conducting such activities;
(v)the right to access places and areas of importance and to maintain and protect them from damage, disturbance or interference;
(vi)the right to assert and to be acknowledged as the Aboriginal owners of the land and waters in accordance with traditional laws and customs.
Note: In respect of the rights referred to in paragraph 3(e) and paragraph 3(f) hereof, the Court has determined that those rights are inconsistent with the rights granted by, or by reason of Crown Lease Perpetual No 1117 to the Conservation Land Corporation over Northern Territory Portions 4386 and 4387. Those rights continue to exist but have no effect in relation to the grant of the Crown Lease Perpetual 1117 because the non-extinguishment principle applies to them: section 238, Native Title Act 1993 (Cth).
AND THE COURT FURTHER ORDERS THAT
9. The native title is not to be held in trust.
10. An Aboriginal Corporation whose name will be provided within 3 months is to:
(a)be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth); and
(b)perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth).
SCHEDULE
Exclusions from the Determination Area1.Areas subject to previous exclusive possession acts, having been excluded from the native title determination application, are excluded from the determination area in accordance with section 61A of the Native Title Act 1993 (Cth).
Public works
The areas on which the following public work as defined in s 253 of Native Title Act 1993 (Cth) are situated, including the land and waters defined in s 251D of the Act, are excluded from the determination area:(i)the two wheel drive access road to the Old Police Station Waterhole (Athethew) (North Loop);
(ii)the four wheel drive access road to the Irminga (Irrmeng) Waterhole and Whistle Duck Creek day use camping area;
(iii)the land and waters adjacent to the two roads referred to in (i) and (ii) hereof the use of which the construction, establishment or operation of the two roads.
2.To avoid doubt, the roads excluded from NT Portions 4386 and 4387 as delineated on plan number S93/20A dated 30 August 1993 are excluded from the determination area.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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