Northern Territory v The Alyawarr, Kaytety Warumungu Wakaya Native Claim Group & Anor

[2006] HCATrans 251

[2006] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D3 of 2005

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAYA NATIVE TITLE CLAIM GROUP

First Respondent

CONSERVATION LAND COUNCIL

Second Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 MAY 2006, AT 9.34 AM

Copyright in the High Court of Australia

__________________

MS R.J. WEBB, QC:   If the Court please, I appear with MS S.L. BROWNHILL, for the applicant.  (instructed by Solicitor for the Northern Territory)

MR S.J. GAGELER, SC:   If the Court please, I appear with MR S.A. GLACKEN for the first respondent.  (instructed by Central Land Council)

KIRBY J:   Yes, Ms Webb.

MS WEBB:   Your Honours, this special leave application raises questions as to the test for extinguishment of native title and also as to whether extinguishment of native title can be disregarded in certain circumstances.  In Western Australia v Ward this Court held at paragraph 78 that:

where . . . there has been a grant of rights to third parties –

for the purposes of extinguishment of native title –

the question is whether rights are inconsistent with the alleged native title rights and interests.

That is to be found in the book of authorities and legislation at page 192.  At about point 7 of the page the Court described that test of inconsistency as:

an objective inquiry which requires identification of and comparison between the two sets of rights.  Reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used.

If your Honours go forward to paragraph 82 of the decision in Ward at page 194 of the book at about point 4 of the page, your Honours will see there the Court saying:

Two rights are inconsistent or they are not.  If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.

In the present case the Full Court has held that a native title right to live permanently and to erect permanent structures on land is not inconsistent with the rights that have been granted to a pastoral lessee.  If your Honours go to the application book at page 198, the relevant passage is paragraph 131.  This is where their Honours discuss this question.  If your Honours go to the last three sentences of that passage, beginning with

Just as the right to live permanently on the land does not necessarily give rise to inconsistency with the pastoral leaseholder’s rights, neither does the right to erect a permanent structure.  The existence of such a structure does not preclude a pastoralist’s right to require its removal in the event that it conflicts with a proposed exercise by the pastoralist of a right under the lease.  It is not inevitable that such a conflict will arise.

It is apparent from those last three sentences that what the Full Court has done in reaching its conclusion is to compare activities and to look for inevitability of conflict between the exercise of rights.  That is the approach, we say, that was expressly rejected by this Court in Ward at the page I took your Honours to.

HAYNE J:   Or is the Court doing any more than simply identifying what the rights entitle people to do?

MS WEBB:   Your Honour, what we say the court is doing is they are looking at the right to live and they are looking at an exercise of that right by the building of a permanent structure.  They are looking at the pastoralist’s right and by the exercise of that right to conduct pastoral activities and comparing the exercise of the right rather than to compare the actual right itself.  It is true, the Court said, you can look to the way a right is exercised to identify the right, but here we say that they have gone further and what they have done is in fact compare activities that are or might be conducted in the exercise of the right rather than compare the legal nature and incidence of the rights themselves.

That is expressly what the Court referred to in Ward when they stated the test in paragraph 78 and referred to Justice Gummow’s statement of the test in Wik v Queensland at pages 185 and 186, and that is Justice Gummow stressing that the relevant test for inconsistency was “a comparison between the legal nature and incidents of the right and of the statutory right”, not between the activities that might be conducted.

Now, what we say, with the greatest respect to their Honours, is that the Full Court has confused the application of the test for extinguishment, which is inconsistency of rights, with the question of whether in the event of a conflict of activities, pastoralist’s right prevail over the native title rights.  That question of pastoralist’s rights and activities prevailing over native title rights is dealt with in the decision of Ward at paragraphs 193 to 194 which your Honours will find in the book of authorities at page 207.

The question of rights prevailing over arises when the rights are not inconsistent but there may in fact in the exercise of those rights be conflict between activities that occur.  It can be readily seen that a native title right to live on land which involves setting up a temporary camp is not inconsistent with the rights of a pastoralist, although in the event of a conflict of activities the pastoralist could require the removal of the temporary camp, that is, the rights of the pastoralists will prevail if there is a conflict in the activities undertaken in the exercise of the right.

HAYNE J:   Is not the difficulty about this area the casting of propositions in absolute terms at a high level of abstraction, so, for example, reference to permanent structure might encompass many kinds of structure and many degrees of permanence?

MS WEBB:   It was in fact before Justice Merkel when this discussion of degrees of permanency arose.  I think it was expressed there as a qualitative difference between the right to live and the right to live permanently.  That is so, your Honour.  The permanency that we are concerned with is in fact the establishment of, in a sense, permanent structures, a community to live permanently at an area on a pastoral lease.  It is not the concept of staying at a place, living permanently on the area but doing that by moving around.  There are different concepts of permanency.

What is concerned here, and it is in fact the way the right to live is being interpreted, in practice, is a right to establish a community with houses, with schools, with medical centres, et cetera, relying on the native title right to live on a pastoral lease.  On that point we would say, just as it can be readily seen that a right to live and to build permanent structures, maintain communities anywhere on land, we would say that can be seen to be inconsistent with a pastoral leaseholder’s right to conduct pastoral activities on their land.  Being inconsistent on the test in Ward, the general principles in Ward, that right would be extinguished and under section 237A of the Native Title Act that extinguishment is permanent. 

The error in the approach of the Full Court, we say, can be well demonstrated in the manner that we have set out in our submissions in reply at paragraph 8.  That is at application book 275.  To summarise that, on that approach the situation is this.  The native title right to live permanently on the land and to establish permanent structures is subject to the pastoral lessee’s right to require the removal if it impedes pastoral activities.  That is the way it is stated by the Full Court.  But what follows if the pastoral lease comes to an end is that the native title right is no longer subject to pastoral lessee’s rights and then become enlarged to an unqualified right and in essence ‑ ‑ ‑

HAYNE J:   Well, can I interrupt you there and go back to the determination.  Do I find that at pages 130 and following?

MS WEBB:   The determinations made by ‑ ‑ ‑

HAYNE J:   Justice Mansfield.

MS WEBB:   ‑ ‑ ‑ Justice Mansfield is at 130, your Honour, yes.

HAYNE J:   And at 131 we find 3(b)?

MS WEBB:   Yes, we do.

HAYNE J:   And 3(b) is the one presently in issue?

MS WEBB:   Yes, it is, your Honour.

HAYNE J:   And the right given by Justice Mansfield is “the right to live on the land, to camp, erect shelters and other structures”?

MS WEBB:   Yes, your Honour.

HAYNE J:   Where does this great debate about permanency intrude, given the form of order made?

MS WEBB:   The great debate intrudes because prior to the hearing before Justice Mansfield and submissions there were two decisions at first instance where the right to erect permanent structures and the right to live permanently arose and two judges at first instance looked at that right to see whether the right to live could include the element of permanency and both found it was inconsistent and formulated the right.  So that is how it arose, your Honour.

HAYNE J:   Maybe, but the order that you would seek special leave to challenge is cast, is it still, in the form of an order in 3(b)?

MS WEBB:   Yes, it is, your Honour.  What we had asked in the appeal, your Honour, was that that right to live be expressed in a way that it was not a right to live permanently.  That was the subject of the appeal.  What we were asking for on our appeal in the special leave is that the right be expressed as the right to live temporarily on the land, and to camp, and erect temporary shelters for that purpose, and to travel over and visit any part of the land and waters.  That is at application book 247 and that arises out of the appeal that was made to the Full Court on this particular ground.

KIRBY J:   Where does the Full Court deal with that?

MS WEBB:   The Full Court deals with that at page 198, paragraph 131 that I took your Honours to, but the issue that was raised is dealt with at application book 194 through until I think it is 199, your Honour.  Your Honours will see at paragraph 123:

The Northern Territory took issue with this right as formulated on the basis that it embraced a right to live permanently on the land in the sense of establishing permanent communities and erecting permanent structures.

That was the ground of the appeal.

HAYNE J:   But it comes down, does it not, to a debate about the manner of formulation, you say an important question about formulation of the right, and the right to live, you say, should be qualified by some word like “temporarily”?

MS WEBB:   It comes down to an important debate about the formulation of the words as to whether a right to live permanently on land that has been subject to the grant of a pastoral lease has been extinguished by that grant.  It is a live issue, your Honour, in a number of areas, a number of cases.

HAYNE J:   But is it not an issue that is better determined case by case according to what structure either has been or is sought to be erected?

MS WEBB:   We say no, your Honour, because the test really was what was granted to the pastoral lessee inconsistent with a right to live permanently and erect permanent structures of any type, and the question is not to be determined by when those structures are erected or if those structures are erected or whether the pastoralist wants to conduct activities.  It is a test of inconsistency of rights.  That is how the two judges at first instance, Justices Nicholson and Justice Sundberg, applied the test and found that the right to live did not include a right to live permanently and erect permanent structures, and formulated that right in a way that made it clear that it was a right to live temporarily.

However, the Full Court has now reached a conclusion to the contrary and of course judges at first instance are bound by that specific decision of the Full Court on the precise right, the right to live, and it is a dilemma, we say, because we say that the Full Court’s decision simply does not apply the principles that are set out in Ward High Court.

KIRBY J:   But what is wrong with the Full Court’s formulation that it is not necessarily inconsistent to have permanent living and permanent structures, and then they go on to say:

The existence of such a structure does not preclude the pastoralist’s right to require its removal in the event that it conflicts with a proposed exercise by the pastoralist of a right under the lease.

CRENNAN J:   So that maintains consistency between the two rights.

MS WEBB:   Your Honour, what it does is it deals with the conflict of the activities or the exercise of the right to live and the right to conduct pastoral activities and it is, with respect, difficult to imagine a more profound demonstration of inconsistency between two rights than that which the Full Court relies upon as a basis for non‑extinguishment; namely, a right of a pastoralist to require the removal of a permanent structure erected by a native title holder in the exercise of a right to live permanently and to erect permanent structures on the land.  We say that is the error and we say that ‑ ‑ ‑

KIRBY J:   But going back to the principle in Wik and the recognition of the fact that these pastoral leases are sometimes as big as a European country, the notion that somewhere out in the middle of one of these leases a permanent or semi‑permanent structure is built by Aboriginals living after traditional ways and that they live in those structures and that is what they have been doing for eons, but that the pastoralist can, if the development of the pastoral lease requires that it be removed, give notice and have it removed, that does not seem to be inconsistent with the fundamental idea of Wik and Ward, which is that the two rights have to somehow co‑exist together.

MS WEBB:   Yes.  Well, your Honours, I can only say what we say, that we say the right is inconsistent and it is demonstrated by the very fact that the exercise of the right can require the removal of the structure that is erected and we say that that difficulty can only be ‑ ‑ ‑

CRENNAN J:   That is a way of reconciling the rights, of rendering them consistent.

MS WEBB:   It is a way of reconciling the rights and rendering them consistent, and that is in fact what we say the error is.  The test has not been applied.  What has been searched for is an application of a test which will render rights inconsistent where they plainly are inconsistent.

KIRBY J:   Well, I understand the force of what you say and, had that extra sentence not been there, I would have thought that there was great power in your submission, but when you look at that extra sentence and the way in which the Federal Court have endeavoured to reconcile the right in law which is then manifested by activities in practice, then it seems to me that they have not fallen into an error that we should correct, at least in the circumstances of this case.

MS WEBB:   Your Honour, I need to move on to the next point.  May I just briefly refer to our reply where we deal with that.  What we say has happened is that how the Full Court has dealt with it is to say that the pastoralist’s rights – the question of inconsistency is resolved by saying the rights are not inconsistent except to the extent that they are inconsistent, and that really is the error, your Honour.

KIRBY J:   Yes.  Well, you had better move on to your next point.

MS WEBB:   Yes, thank you. Your Honour, the next point is the point regarding the operation of section 47B in respect of an area which is the subject of a proclamation of a town site at the date an application was made. Now, section 47B was enacted as part of the Parliament’s response to Wik.  It is a statutory mechanism.  It is reached as a product of compromise and political negotiation designed to allow a claim to be made to vacant Crown land.  We claim it is an occupation of land notwithstanding possible extinguishment by an historical Act.

Now, it can be seen from section 47B(1)(b)(ii) and (iii) that Parliament intended to preserve a broad range of different ways for governments to allocate vacant land for future uses and where governments have formally allocated land to a future use the section is not intended to apply to disregard prior extinguishment of native title. It should not be thought here ‑ ‑ ‑

KIRBY J:   This town site is not used at the moment and is not intended to be used, as I understand it.

MS WEBB:   No, it is not, your Honour, but the same issue arises in respect of, and has arisen in respect of, a claim over Broome, a claim over Darwin, it arises in a claim over Perth, and both ‑ ‑ ‑

KIRBY J:   They may not be the circumstances in which this Court would become involved.  You see, we have to respect the role of the Federal Court in dealing with matters under the Native Title Act unless there is some important question of principle.  If an issue in Darwin or Broome came up where there is a real town, that would be one thing, but here there is a sort of notional township.  It does not seem to require our intervention.

MS WEBB:   Your Honour, I notice my light is on.  Can I seek ‑ ‑ ‑

KIRBY J:   No, proceed.

MS WEBB:   Your Honour, the difficulty is this.  The way the Court has proceeded – and this we say correctly – you look to what is on the face of the proclamation or the document and the legislation, and it matters not what happens after that.  It is the intention that is disclosed on the proclamation and the legislation.  That being the case ‑ ‑ ‑

KIRBY J:   I realise the force of that and I would accept the arguability of what you are pressing on the Court in your written submissions and what you have said orally, but the question is, is this the occasion for us to visit the issue, or is the occasion presented where there is a real township and real issues?  This is a theoretical question.

MS WEBB:   Well, your Honour, we would say it arises now because the interpretation is exactly the same whether it is a dead letter town or whether it is a real town, your Honour.

KIRBY J:   Well, it may be it is a question of the occasion.  We can only do so many cases a year and we have to conserve the cases we do to those where there is a real need for the final court to intervene.  Anyway, I think we understand your argument ‑ ‑ ‑

MS WEBB:   Yes, thank you, your Honour.

KIRBY J:   ‑ ‑ ‑ and it is an arguable point.

MS WEBB:   Yes, it is indeed, and it is recognised by the Full Court as being arguable.  In fact, the difference is a narrow interpretation and a broad interpretation of that section, your Honour.  If the Court please.

KIRBY J:   Thank you, Ms Webb.  Yes, Mr Gageler.

MR GAGELER:   Your Honours, could I put the section 47B point in perspective by asking your Honours to turn to the map at page 231 of the application book. Your Honours see the so‑called town of Hatches Creek in the inset towards the right‑hand side of the map. On the main map it is but a speck below that inset.

KIRBY J:   Well, that is hardly a good point.  Anything on the map of the Northern Territory of Australia is just a speck.  I mean, it is a huge area.

MR GAGELER:   The point, your Honour, is this, that it is an area of some 2.7 square kilometres.  As your Honours have seen, it was proclaimed as a town in 1953 and never developed, but importantly since 1990 it has been a speck within an area of some 600 square kilometres which completely surround it and are held in fee simple by an Aboriginal land trust under the Aboriginal Land Rights Act and as the ‑ ‑ ‑

HAYNE J:   Now, Ms Webb’s point against you, as I understand it, is that the point may or may not loom large in this determination, but it looms large in the broader consideration of native title issues.  What do you say to that?

MR GAGELER:   Well, your Honour has to take into account what the point is and the way in which the point was put before the Full Court and is put there.  What was put before the Full Court and appears to be the point that is sought to be made here again focuses simply upon the form of one part of the proclamation that your Honours see at page 215, the proclamation being made in reliance upon the provision of the 1931 Ordinance that your Honours see at the previous page, 214, at about line 8, and that statutory provision allowed the Governor‑General by a proclamation to:

constitute and define the boundaries of new counties, hundreds, and towns, and distinguish each by a name.

What the relevant part of the proclamation at page 215 did was pursuant to section ‑ ‑ ‑

HAYNE J:   Well, you have really got to go on, Mr Gageler, to subsection (3), have you not?

MR GAGELER:   But, your Honour, can I point this out:  subsection (3) simply was not relied upon by the Full Court – in the argument in the Full Court.  Your Honours see the argument at the top of page 216 about line 4.  That was the argument; that is the argument.  It was an argument raised for the first time in the Full Court.  That is the argument and their Honours’ answer to that argument, which is not a subsection (3) argument – it is a paragraph 1(a) argument – is, in our submission, entirely correct, modest and confined.  Their Honours’ answer is at the top of page 218, line 2 where their Honours say:

It is sufficient to say that the mere proclamation of a townsite, which might comprise largely private property holdings by lease or otherwise, does not define public purposes or a particular public purpose within the meaning of s 47B(1)(b)(ii).

HAYNE J:   Do you say that holding of the Court should be understood as confined to that aspect of the proclamation that engaged section 111(1)(a)?

MR GAGELER:   Correct, and that was the argument that was put ‑ ‑ ‑

HAYNE J:   And that there is no holding of the Court concerning the operation of a proclamation which sets apart as town lands Crown land within the boundaries of a town?

MR GAGELER:   Correct.  They dealt with the argument that was put and the way in which they dealt with it was, in our submission, indisputably correct because if the argument was correct for a town, then it would have to be correct for counties and hundreds, which demonstrates the absurdity of the proposition that was put to the Full Court.  So, your Honours, this case, to the extent that it deals with something that in other cases may or may not be of some significance, really does not preclude such arguments as might be put in those other cases where the point might matter.  Really what I was seeking to say in a preliminary way was the point simply does not matter in any practical way in the present case.

Your Honours, can I move on to our learned friends’ other and principal argument presented orally.  That really reduces to a complaint, to some extent semantic, to some extent theoretical, and certainly at a very high level of abstraction, about the form of declaration 3(b) that your Honours have seen at page 131 of the application book at about line 10.  The argument was really very much an afterthought to the conduct of the trial.  In our submission, it deals very much with something that is in the context of this case a matter of detail ‑ ‑ ‑

KIRBY J:   Is there any reflection in the final orders, the orders that emanated from the Full Court, of that passage in their Honours’ reasons at paragraph 131, I think it is, that the pastoralists have the right to require the removal of permanent structures if that interferes in the conduct of the pastoral lease?

MR GAGELER:   No, that is not reflected in the form of the final order.  But can I show your Honours how the thing developed at trial, and the difficulty with dealing with any argument of this nature now is the way in which the case was conducted at trial.  If your Honours go to page 31 of the application book, your Honours will see at about line 18, paragraph (b) of the rights as asserted by the claimants.  Now, that paragraph (b) became paragraph 3(b) of the ultimate declaration.  Your Honours will see then at page 35, line 17 and following the competing rights as asserted by the present applicant and your Honours will see that paragraph (a) was cast simply in terms of:

The right to have access to and reside upon any of the land and waters.

KIRBY J:   But that could include permanent residence.

MR GAGELER:   Well, the point is that this supposed distinction between permanent and temporary was not one that was made at the trial, so it was simply not explored.  Your Honours will see that when your Honours go to page 73 of the judgment of Justice Mansfield at first instance.  What his Honour says in the last two lines at page 73 is:

As the Northern Territory’s proposed determination illustrates, albeit in different terms, it does not contend that non‑exclusive rights as expressed in pars (a), (b) and (g) of the applicants’ proposed determination should not be determined.

Paragraph (b) is again set out there and that resulted in paragraph 3(b) of the determination.  It was as a result of that, that is, that there was really no issue about this at trial, but your Honours see at page 69, about line 3, the last sentence of the paragraph that ends at the top of the page, his Honour says:

Moreover, as the Northern Territory does not dispute certain of the claimed rights and interests, to that extent it is also not necessary to refer in detail to the evidentiary foundation for them.

So what one does not get in this case is any exploration of any of the evidence that may have gone to the nature of the native title right to live on the land.  It simply was not in issue.  Then if your Honours turn to page 252, to the proposed orders that are sought by the applicant in its proposed draft notice of appeal to this Court, your Honours see the form of paragraph 3(b) as they would have it.  They accept a right to live; they accept a right to erect shelters – they prefer to call it shelters rather than structures – but they want a reference to “temporary” or “temporarily” inserted ‑ ‑ ‑

KIRBY J:   Well, that is consistent with what Ms Webb has been putting to us.

MR GAGELER:   That is exactly right, your Honour, but the difficulty is that the content of this notion of temporary as opposed apparently to a notion of permanence is not only undefined in the proposed form of order that is sought, but it is obviously a matter of degree and completely unexplored in the evidence and in the findings of fact that have been made.

KIRBY J:   Now, can I ask a question which is important to me, and I would like you to answer it on behalf of your clients.  Do you your clients accept that the “existence of such a structure does not preclude a pastoralist’s right to require its removal in the event that it conflicts with a proposed exercise by the pastoralist of a right under the lease”?

MR GAGELER:   Yes.

KIRBY J:   Very well.

MR GAGELER:   Your Honour, can I also put that in the historical perspective that the Full Court was ‑ ‑ ‑

KIRBY J:   I do not want any prevarication or qualifications.

MR GAGELER:   No.  The answer is yes.

KIRBY J:   That is the balance that the Full Court has expressed.

MR GAGELER:   The answer is yes, your Honour, and I will not say any more.

KIRBY J:   Very well.

MR GAGELER:   Your Honour, the submission that what the Full Court was doing was inconsistent with Ward is somewhat ironic given, as the Full Court itself noted at page 198 just before paragraph 131 of which the complaint is made, the order proposed or the declaration proposed as paragraph 3(b) was very much in the form of the declaration in fact made in Ward by consent between the parties in that case following remittal from this Court.  Your Honours, I think I need say no more about that.  If the Court pleases.

KIRBY J:   Yes.  Yes, thank you, Ms Webb.

MS WEBB:   Thank you, your Honours.  Just very briefly, if I could just deal with the question of the right to live permanently.  Your Honours of

course would be aware that since the decision in Yorta Yorta it is now clear that rights can evolve since sovereignty and the right now we see can encompass the building, or is said to encompass the building of, say, six‑bedroom brick houses, permanent communities. 

Our problem is that the Full Court accepted the right to live can encompass such a right to live permanently and build permanent structures.  In the context of non‑exclusive you would have to ask how the construction of such a community could not be exclusive, and also we would say it would be completely unrealistic, your Honours, to imagine a pastoralist having to go to court to get a court order to remove the structures.

In respect to the section 47B argument that was put to the Full Court, your Honours will see at application book 216 what paragraph 181 does is simply a shorthand statement for the Northern Territory’s argument. In fact, we relied on both steps. If your Honours go down into paragraph 182, their Honours go on to say:

As the Hatches Creek case illustrated, the mere fact that an area was constituted as a town, its boundaries defined and the land within it set apart as town lands did not mean that the land would be used for any purpose, let alone a particular purpose.

Indeed, the setting apart of the town lands was part of the argument and the proclamation that is on application book 215 indeed constitutes and defines the boundaries, distinguish the town, gives it a name and sets apart the Crown lands.  We ask how can it be said by the Full Court that the constitution of a town, identifying boundaries, setting apart from other Crown land and naming it as the town of Hatches Creek does not display, one, an intention that the land is to be used, and we also say an intention it is to be used for public purposes.

What the Full Court has done is say, “Well, public purposes might encompass such a thing, but we are going to reject that in favour of a narrower interpretation because there might be private holdings”, and then to say the town site was not for a particular purpose because it had a number of possible purposes.  We say that is the error.  It should have been a broader construction.  But certainly the setting apart of towns was part of the argument.  If the Court pleases.

KIRBY J:   The Court will adjourn briefly to consider the disposition of this matter.

AT 10.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.17 AM:

KIRBY J:   Did you want to say anything more, Ms Webb?

MS WEBB:   No, thank you, your Honour.

KIRBY J:   I will ask Justice Hayne to give the reasons of the Court and to pronounce its orders.

HAYNE J:   The Northern Territory seeks special leave to appeal to challenge the way in which one aspect of the determination of native title was expressed by the trial judge.  That determination provided that the native titleholders have “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”.  The Northern Territory sought in the Full Court, and would seek in this Court, the modification of that right by a word such as “temporarily”.

The point which it is sought to agitate in this Court is one which invites attention to the drafting of the determination rather than the substantive definition of the rights reflected in it.  It raises no point suitable to a grant of special leave.  The issues which the applicant would seek to agitate are questions that would arise, if at all, only in the context of particular facts and circumstances that may or may not happen in the future.  If they do, they would be solved, as the respondents explicitly accepted, in the manner described by the Full Court in paragraph 131 of its reasons. 

The Northern Territory further sought special leave to challenge the Full Court’s decision concerning the operation of section 47B of the Native Title Act 1993 (Cth). The Full Court’s reasoning concerned the effect of a proclamation made under section 111(1)(a) of the Crown Lands Ordinance 1931 (NT) defining the boundaries of “new counties, hundreds, and towns”. Understood and confined in that way, the decision of the Full Court is not attended by sufficient doubt to warrant a grant of special leave to appeal to this Court. Accordingly, special leave is refused and refused with costs.

AT 10.20 AM THE MATTER WAS CONCLUDED