Pocock v Director of National Parks and Wildlife

[2001] FCA 670

FEDERAL COURT OF AUSTRALIA

Pocock v Director of National Parks and Wildlife [2001] FCA 670

MINING – Miner’s Rights – Garden Areas – whether Northern Territory can lawfully deal with Miner’s Rights in land acquired by the Commonwealth – whether Miner’s Rights constitutes an “interest in land

AGENCY – whether the Northern Territory acted as an agent for the Commonwealth in exercising its powers under the Mining Act (NT)

DISCRIMINATION – whether the conduct of the Commonwealth amounted to discrimination against the applicant

National Parks and Wildlife Conservation Act 1975 (Cth) ss 6, 7, 8, 8B(1), 10(1A), 11(1) 11(8), 12, 15(1), 33
Mining Act 1904-1971 (WA) s 26(1)
Mining Act 1980 (NT) ss 191(1), 191(19)
Northern Territory Acceptance Act 1910 (Cth)
Northern Territory (Self-Government) Act 1978 (Cth) ss 56, 69, 70
Northern Territory (Administration) Act 1910 (Cth)
Real Property Act (NT) s 113
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 67A(2)
Mining Amendment Act 1984 (NT)
Native Title Act 1993 (Cth)
Mining Ordinance 1939 (NT) ss 17, 19, 22, 23, 36, 38, 39, 40, 81(1), 83
Mining Ordinance 1970 (NT) s 3
Transfer of Powers (Self-Government) Ordinance 1978 (NT) s 4

Adamson v Hayes (1973) 130 CLR 276 followed
Hunter Douglas Australia Pty Ltd v Perma Blinds (1969) 122 CLR 49 referred to
Newcrest Mining(WA) Ltd v The Commonwealth of Australia (1997) 190 CLR 513 followed
Margarula v Minister for Resources and Energy (1998) FCA 48 referred to
Margarula v Minister for Resources and Energy (1998) 157 ALR 160 cited
Commonwealth v Newcrest Mining (WA) Ltd (1995) 58 FCR 167 referred to
Grey v Pearson (1857) 6 HLC 61 cited
Caledonian Railway Co v North British Railway Co (1881) 6 App Cas 114 followed
Watson v Phipps (1985) 63 ALR 321 followed
Svikart v Stewart (1994) 181 CLR 548 cited
Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 cited

ROBERT CHARLES POCOCK v DIRECTOR OF NATIONAL PARKS AND WILDLIFE
NO DG 2 OF 1996

O’LOUGHLIN J
ADELAIDE (HEARD IN DARWIN
5 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG 2 OF 1996

BETWEEN:	ROBERT CHARLES POCOCK APPLICANT
AND:	DIRECTOR OF NATIONAL PARKS AND WILDLIFE RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	5 JUNE 2001
WHERE MADE:	ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1.That the application be dismissed and the injunction granted in favour of the applicant on the 31st day of January1996 be discharged.

2.That the respondent file and serve submissions as to costs and as to the appropriate orders for disposing of the cross-claim, within 14 days of this date.

3.That a copy of the respondent’s submissions be served on the applicant and on the solicitors for the Northern Territory of Australia within 14 days of this date.

4.That the applicant and the Territory be at liberty to file and serve their submissions (if any) within a period of 14 days from the service of the respondent’s submissions upon them.

5.That any party, including the Territory, be at liberty at any time after the expiration of 28 days from the date hereof to list this matter for further consideration.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG 2 OF 1996

BETWEEN:	ROBERT CHARLES POCOCK APPLICANT
AND:	DIRECTOR OF NATIONAL PARKS AND WILDLIFE RESPONDENT

JUDGE:	O’LOUGHLIN J
DATE:	5 JUNE 2001
PLACE:	ADELAIDE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

1. The applicant in these proceedings is Robert Charles Pocock (“Mr Pocock”); the respondent is the Director of National Parks and Wildlife (“the Director”), a corporation with perpetual succession that was established by subs 15(1) of the National Parks and Wildlife Conservation Act 1975 (Cth) (“the National Parks Act”). The Director is assisted in the performance of his functions under that Act by the Australian National Parks and Wildlife Service (“ANPWS”), which is now part of the Australian Nature Conservation Agency (“ANCA”); it was established for that purpose by s 33 of the National Parks Act.

2. Mr Pocock, and his father before him, have enjoyed certain occupational rights to approximately five acres of land at Four Mile Hole on the Wildman River in the Northern Territory of Australia.  I will hereafter refer to that land as “Four Mile Hole”.  These proceedings are concerned with the rights (if any) that Mr Pocock may now have to continue to occupy Four Mile Hole.

3. Four Mile Hole lies within Kakadu National Park (“Kakadu” or “the Park”) and more particularly within that part of the Park that is comprised in Northern Territory Portion 4061 (“Portion 4061”).  Mr Pocock has claimed that his father, Frederick Henry (“Fred”) Pocock, was granted a lease or a tenement of Four Mile Hole in July 1965 and that the nature of the grant was a “lease in perpetuity” pursuant to the provisions of the Mining Ordinance 1939 (NT) (“the Mining Ordinance”).  Mr Pocock has further claimed that his father transferred his interest in Four Mile Hole to him on 3 September 1992 and that he now possesses the same rights of occupation as were formerly enjoyed by his father.

4. The Director has rejected Mr Pocock’s claim to a right of occupancy and, in his cross-claim, he has sought several declarations, including a declaration that neither Mr Fred Pocock nor the applicant “could have acquired or did acquire any right, title or interest in Four Mile Hole as against the respondent”.  The Director’s case included an argument that any rights of occupation to Four Mile Hole were dependent upon the grant of a miners’ right:  if the miner’s right ceased, so also did the right of occupancy.  The Director has argued that Mr Fred Pocock ceased to hold a miner’s right on one of several alternative dates and, as a result, any right of occupation that he may then have enjoyed to Four Mile Hole was deemed, by virtue of the provisions of s 38 of the Mining Ordinance, to have been abandoned.

5. Although Mr Pocock was initially aided by a legal practitioner in the preparation of his pleadings and during the course of some of the earlier directions hearings, that practitioner was never formally on the record and, after a period of time, because of his move to Fiji, he ceased to be available to assist Mr Pocock.  It fell thereafter to Mr Pocock to present his case, aided by his two sisters.

6. As will become apparent in due course, the issues that must be resolved in this litigation are not limited to Mr Pocock’s dispute with the Director.  On the first day of the trial, it became apparent that Mr Pocock’s personal dispute might be symptomatic of a larger dispute between the Commonwealth and the Northern Territory Governments.  In particular, the Territory is of the opinion that, as a sovereign body politic, it controls all mining tenements in the Territory – both within and without the boundaries of the Park.  As it then seemed to me that it might have been desirable for the Territory to be a party to these proceedings, I ordered the Director to serve forthwith upon the solicitors for the Territory a copy of the pleadings in this action, reserving to the Territory the right to seek access to copies of additional material on the Court file.  As a result, Mr Henwood appeared before the Court as counsel for the Territory on the last day of the hearing.  Although the Territory did not seek to be named as a party to the proceedings, Mr Henwood sought leave so that he might make submissions in the interests of the Territory.  As that proposition was acceptable to the litigants I acquiesced.  On 30 November 2000, I granted leave to the Northern Territory to file and serve written submissions with respect to all and any issues pertaining to matters of interpretation of Commonwealth and Territory legislation that were regarded by the Territory as relevant to the resolution of any issue in this litigation.  That leave did not extend to permitting the Territory to make submissions on Mr Pocock’s allegation that he had been the victim of discrimination at the suit of the Director.  The Territory’s submissions were received in due course.

7. The parties filed a statement of agreed facts for the purposes of these proceedings.  In that statement it was agreed that Mr Pocock’s mother (whom I find to be an Aboriginal woman) was born in the Northern Territory somewhere between the Daly River and the border of the Northern Territory and Western Australia.  It was not agreed, but I find that Mr Fred Pocock was of Anglo-Saxon descent.  Mr Fred Pocock died in Darwin on 21 November 1995, aged sixty-nine years.  Mr Pocock’s mother is still alive; she lives with the applicant and his family in suburban Darwin from time to time.  At other times she lives with one or other of her children or at Four Mile Hole.  Mr Pocock has five surviving adult siblings, all of whom have their own families.  An elder brother, who had the same Christian names as his father, died some time ago.  Mr Pocock does not presently reside at Four Mile Hole; he said that his residential address was in suburban Darwin where he has lived with his wife and family for about ten years.  At present, his brothers, William Albert and Frank James, and a nephew are residing at Four Mile Hole.  He said, and I accept, that all members of his family have strong cultural and spiritual ties with the land at Four Mile Hole, particularly as his father is buried on the site.  The parties further agreed that neither Mr Robert Pocock, nor his mother, nor any of his siblings has been recognised as a traditional Aboriginal owner of Four Mile Hole and it was also agreed that Mr Pocock was not claiming, in these proceedings or at all, native title rights (such as might have been claimed under the Native Title Act 1993 (Cth)).

   FOUR MILE HOLE AND WEST ALLIGATOR HEAD

8. Mr Pocock said that he and his brothers and sisters grew up at Four Mile Hole and that they spent a substantial part of their lives with their parents on the site.  Mr Pocock alleged in his pleadings that the value of the improvements on the site, together with the value of natural assets such as billabongs, flora and fauna, was in the vicinity of $3m.  The Director denied that and, as Mr Pocock called no evidence on value from any qualified witness, I am unable to accept his personal estimation.

9. Mr Pocock’s two sisters, Ms Elsie Pocock and Ms Lynette Jones, both told of their early lives at Four Mile Hole.  I accept their evidence; it was not challenged in cross-examination.  It described in quite graphic detail the hard life and the hard work that they, as children, had to undertake.  It also assisted in understanding how they and their siblings formed their attachment to the land.  Their evidence and that of Mr Pocock satisfies me that I should accept that Mr Pocock and his brothers and sisters have at all times maintained their Aboriginal identities and their association and connection with Four Mile Hole.

10. Mr Pocock, during the course of his evidence in chief, related his memories of his father’s activities at Four Mile Hole.  He said that there was a herd of about 400 goats – although his older sister, Ms Elsie Pocock, suggested in her evidence that the number was nearer 2000.  Their father reared (or caught) them for sale.  Mr Pocock also said that his father reared pigs and grew pumpkins for sale.  In addition to those activities, his father did some bull-catching and crocodile hunting.  Mr Fred Pocock did not, however, work as a miner nor did Ms Pocock suggest that her father was interested in mining.  It was her understanding that he obtained a miner’s right in respect of Four Mile Hole because “that was one way to get some sort of tenure on land …”.  The most that Mr Pocock could say about “mining” was that his father did some occasional fossicking.

11. Mr Harmer, an officer in the Territory’s Department of Mines and Energy, who has held the statutory appointment of Mining Registrar since 1974, explained that the obtaining of a miner’s right did not involve the holder in any obligations such as labour conditions.  In fact, he was aware of the practice of people using the acquisition of a miner’s right as a means of obtaining a “Garden Area” so that the land could be used for horticultural purposes.  Mr Harmer gave evidence under subpoena as part of the applicant’s case.  Although it will be necessary to discuss miners’ rights and Garden Areas later in these reasons, it can be noted at this stage that the Director, through his counsel, advised the Court that, having regard to Mr Pocock’s evidence, he accepted that, at all relevant times, the “Garden Area” at four Mile Hole had been “used for producing fruit and vegetables and the like”.  Based on this evidence and the Director’s concession, I find that the activities of Mr Fred Pocock at Four Mile Hole were pastoral, horticultural and agricultural – they were not mining.

12. In par 30 of the cross-claim, the Director has pleaded that, at no time, did Mr Fred Pocock or his son, the applicant, occupy Four Mile Hole for the purpose of a market garden associated with mining as required by reg 83 of the Mining Regulations.  The evidence of the members of the Pocock family would justify a finding in those terms.  However, I do not consider that the early failures to occupy the site in the prescribed manner can now assist the Director.  There have been material changes to the law, not the least of which is Self Government for the Territory.  In my opinion, the appropriate means of resolving the present conflicts will be better achieved by having regard to the changes that have taken place in the Commonwealth and the Territory legislation and by assessing their affect upon Mr Pocock’s claims. 

13. On 10 October 1975, the Commonwealth of Australia (“the Commonwealth”) granted Mr Fred Pocock an Occupation Licence (No 964) for a term of five years under the Crown Lands Ordinance 1931 for an area of land on the coast to the north of, and not far from, Four Mile Hole.  The site of this piece of land is commonly known as “West Alligator Head” and it is part of the Park.  It was agreed by the parties that Mr Fred Pocock resided at West Alligator Head from November 1975 until about September 1987 when he returned to Four Mile Hole.  However, despite the length of his residence, it was also agreed that Occupation Licence No 964 had earlier expired in November 1980.  Although the land at West Alligator Head is not included in these proceedings as part of Mr Pocock’s claim, it has some part to play in the history of the Pocock family’s attempts to cement their occupancy rights in the Park.  Hence, reference to West Alligator Head will crop up from time to time.

    MINER’S RIGHT AND GARDEN AREA

14. I turn now to consider the history of the Pocock family’s entitlements under the mining legislation.

15. The parties have agreed that in May 1965, Mr Fred Pocock was granted a miner’s right No. 12938 for a period of one year. That miner’s right was granted by the Commonwealth. The grant was made pursuant to the provisions of s 19 of the Mining Ordinance. Section 17 of that Ordinance empowered the Administrator, the Director of Mines and certain other officer-bearers to issue miners’ rights. Section 19 stated that a miner’s right would only be in force for one year from the date of issue and s 22 stated that, save as provided by regulations, a miner’s right was not transferable. Under s 36 of the Ordinance, the holder could, at any time within thirty days of the expiration of the right, apply for a further miner’s right. If it was granted, it would date from the expiration of the previous right. Section 23 set out, in detail, the rights and privileges that were conferred by a miner’s right. The rights, which were limited in their application to crown land and which did not extend to private land, entitled the holder of a miner’s right (inter alia):

    “(a)to take possession of, mine and occupy crown land for mining purposes;

    (b)to take possession of and occupy Crown land as an authorised holding;

    …”

    Subject to some minor qualifications that are not significant for present purposes, subs 30(1) of the Mining Ordinance stated that a person who took up and occupied Crown land by virtue of a miner’s right was deemed to be possessed of the land.

16. On 26 May 1965, Mr Fred Pocock completed an application that was entitled:

    “Application for registration of a mining tenement other than a lease.”

    The printed form which he completed stated that the application was made pursuant to the Mining Ordinance and that it was for the registration of “the land taken possession of” by Mr Fred Pocock as a “Garden Area”.  The words “Garden Area” were inserted in handwriting.  There was also a reference in the application to “Miner’s Right No 12938 dated 26.5.65” That application led to the issue of a “Certificate of Registration” on 23 July 1965.  It bore the number “GA 36A” and it certified that the Mining Registrar had, on that day, “registered Frederick Henry Pocock of Adelaide River NT as a holder of the whole interest in Garden Area 36A, containing 5 acres and situate at Wildman River …”.  The certificate did not state that the registration was for any particular period of time.

17. On 23 July 1992 Mr Fred Pocock signed a form of transfer whereby he transferred to Mr Robert Pocock, his “right title and interest in Garden Area 36A (HLDN15)”.  Mr Pocock identified his and his father’s signature on the form of transfer.  On 3 September 1992, the Warden of the Agicondi Goldfield, an officer of the Territory, signed an endorsement on the Certificate of Registration which was in the following terms:

    “Whole interest transferred to Robert Pocock vide transfer D5683 Registered 3/9/92”

    On the same day, the Warden also signed a “Certificate of Transfer of a Mining Tenement or Interest therein other than a lease”.  That certificate was in the following terms:

    “THIS IS TO CERTIFY that I have this day registered a transfer of the whole interest in GA36A situated at Agicondi Gold Field (or Mineral Field) from Frederick Henry POCOCK to Robert POCOCK of Leanyer and the said Robert POCOCK is now the registered holder thereof, subject to the provisions of the Mining Ordinance 1939 and Regulations thereunder.”

    The reference to the “Mining Ordinance 1939 and Regulation thereunder” was an obvious error as the Northern Territory’s Mining Act 1980 (NT) had come into operation on 1 July 1982.

18. The Territory’s Mining Registrar issued a certificate entitled “Search Certificate” on 24 May 1993.  The subject of the certificate was “Holding (Northern): 15”, the form of identification for GA 36A that came into use after the introduction of the Mining Act.  The information in the Certificate disclosed that there had been an application in 1965 and a grant on 23 July 1965.  Alongside the words “Name of Lease”, the letters and figures “GA 36A” had been typed.  The Certificate recorded Frederick Henry Pocock as the previous holder and Robert Charles Pocock as the current holder.  It noted that a transfer had been lodged on 23 July 1992 and approved and registered on 3 September 1992.  There then followed a handwritten endorsement that:

    “Rental has been paid up to and including rent for the year of 2231.  The next rental payment is due on 01/01/2232 being $2.50”.

    The issue of importance is whether the Territory had the right, as a matter of law, to deal with the holding at all.

19. In par 3 of his amended statement of claim, Mr Pocock pleaded that on 3 September 1992, Four Mile Hole was “transferred” to him by his father. As to that allegation, the Director acknowledged in its defence that HLDN 15 “was purportedly transferred” from Mr Fred Pocock on that date, but he denied that the purported transfer was lawful or effective. He made that denial notwithstanding that he acknowledged that the Mining Registrar of the Territory has recorded the applicant as the holder of an Authorised Holding (HLDN 15) under the Mining Act in respect of Four Mile Hole. The Director claims in these proceedings that it was beyond the power of the Territory to implement that transfer because the land was subject to the provisions of the National Parks Act and because the land had ceased to be under the control of the Territory.

1. It is now necessary to have regard to some defined terms in the Ordinance.  “Mining tenement” meant primarily “any land applied for, held, occupied, used or enjoyed under a lease or application therefor, or as a claim”.  However, it also meant “… any area … held, occupied, used or enjoyed under or by virtue of a miner’s right”.  It is the latter part of the definition that is relevant to these proceedings.  A further definition in the Ordinance that needs to be referred to is that of “authorised holding”; that meant any mining tenement other than “a lease, an application for a lease, a claim or a prospecting area”.  I am satisfied that the width of the definition of “authorised holding” encapsulated a Garden Area so that a Garden Area can properly be described both as an “authorised holding” and as a “mining tenement”.  That conclusion is supported by the provisions that are contained in Reg 81 of the Mining Regulations that were made under the Mining Ordinance.  Subregulation 81(1) relevantly provides as follows:

   “81.(1)A Miner may at any time take possession of, mark off and apply for registration of such area, as is hereinafter set forth, of the surface only of any Crown land within a proclaimed gold-field, mineral field or district, as an authorised holding, for any of the following purposes:-

   (a)…

   (b)…

   (c)…

   (d)…

   (e)…

   (f)A Market Garden Area, not exceeding five areas, for poultry farming or growing fruit, vegetables, fodder or garden produce of any kind.”

2. The “miner” to whom subreg 81(1) refers is the holder of a miner’s right:  see subpar 4(4) which states that the holder of a miner’s right must produce his miner’s right “as evidence of his right to take possession …”.  That explains why it was necessary for Mr Pocock to quote his Miner’s Right No 12938 when he applied for the Garden Area.  In other words, in 1965, Four Mile Hole, being an area that was held, occupied, used and enjoyed by Mr Fred Pocock by virtue of his miner’s right, was also, because of the Certificate of Registration GA36A, an authorised holding and a mining tenement for the purposes of the Mining Ordinance.  Mr Fred Pocock held his miner’s right and the Garden Area from the Commonwealth.  Those rights did not, however, amount to a lease nor were they derived from the Northern Territory as was claimed by Mr Pocock in his pleadings.

3. An immediate question is whether the provisions of the Mining Ordinance should lead to the conclusion that a miner’s right should be regarded as “an interest in land”. Quite apart from the provisions of s 23 of the Ordinance (with its express statement that the holder of a miner’s right was entitled “to take possession of, mine and occupy Crown land for mining purposes”), there were other provisions in the Ordinance that pointed to the miner’s right being more than a mere licence to work as a miner. For example, s 39 empowered the Administrator to grant to a person a lease of any Crown land for mining for gold and for purposes ancillary to that primary object. However, s 40 then proceeded to state that “land occupied by virtue of a miner’s right” was exempt from the provisions of s 39. The same formula was to be found in ss 45 and 46. The former allowed for the grant of mineral leases whilst the latter provided that “land occupied by virtue of a miner’s right” was exempt from the operation of s 45. Section 60 supported the argument that the nature of the miner’s right is an interest in land by providing that when an application was successfully made for a lease of any land, a part or the whole of which was held by the applicant under a miner’s right, the interest held under the miner’s right would merge in the interest that was held under the lease.

4. The nature of a miner’s right was considered by Stephen J in the High Court in Adamson v Hayes (1973) 130 CLR 276. That case was concerned with the Mining Act 1904-1971 (WA), a different statutory regime to that of the Territory; furthermore, the issues were dissimilar to those in this case.  However, subs 26(1) of the Western Australian legislation, like par 23(a) of the Territory legislation, enabled the holder of a miner’s right to take possession of, mine and occupy Crown land for mining purposes.  At p 315, his Honour considered a particular argument put on behalf of the respondents to the effect that there could be no dealing with a right to work and get minerals without also dealing with a miner’s right.  Stephen J said:

   “This argument mistakes, I think, the effect of the possession of a miner’s right;  it is true that it is a necessary first step, a necessary qualification, before the right to mine may be acquired but it is no more than that.  It places a person in a position lawfully to take possession of Crown land but not until possession of an area, the claim, is taken does any land become subject to the right to mine which right, until that time, is inchoate and lacking in subject matter.  The situation upon a transfer of a claim illustrates this;  the transferee must be the holder of a miner’s right but until the claim or a share in it is transferred to him that miner’s right gives him no rights whatever to minerals in the land comprised in the claim.” 

5. Applying his Honour’s remarks to the facts of this case, it becomes apparent that the Director expressed himself inappropriately when he claimed that Commonwealth land cannot be the subject of a grant of a miner’s right.  Such a proposition assumes erroneously, that a miner’s right attaches to an identifiable parcel of land.  It does not.  It merely represents the first step in a chain which could, in light of subsequent events, lead to a right to mine on a particular parcel of land or – as in this case – a right to acquire an authorised holding.  A miner’s right is, therefore, not an “interest in land”.

6. Unlike the miner’s right, the Garden Area did not have to be the subject of an annual application for a fresh grant.  Under the Mining Ordinance it continued so long as its holder continued to hold a miner’s right, subject only to the risk of forfeiture for non compliance or voluntary surrender.  That position initially continued after Self-Government but then changed following upon the introduction of the Mining Act 1980 (NT) on 1 July 1982.

7. The importance of the connection between a miner’s right and a mining tenement was emphasised by the contents of s 38 of the Mining Ordinance.  It provided that any mining tenement (and a Garden Area was one such tenement) of which any person may have taken possession by virtue of a miner’s right, shall, on such person ceasing to be the holder of a miner’s right, be deemed abandoned. 

8. Windeyer J in Hunter Douglas Australia Pty Ltd v Perma Blinds (1969) 122 CLR 49 at 65 – 67 discussed, at length, the many meanings of the words “deem” and “deemed”. After explaining that, in some cases, they can be used to create a statutory fiction, his Honour went on to explain that the words, when used in a statute, often stated merely:

   “… the effect or meaning which some matter or thing has – the way in which it is to be adjudged.  This need not import artificiality or fiction.  It may be simply the statement of an indisputable conclusion …”

   In my opinion, that is the case here.  The loss of a miner’s right led to the “indisputable conclusion” that the Garden Area was abandoned.

9. Mr Fred Pocock paid the prescribed rent annually for his successive miners’ rights until 1980.  Although his registration was not recorded as having been renewed because of the alleged non-payment of the 1975 rent, his records were corrected on 17 January 1977 after it was established that the rent in question had, in fact, been paid on 23 December 1974, two days before the calamitous event of Cyclone Tracy.  No point has been taken about this temporary lapse in formal registration.  Thus in successive years, Mr Fred Pocock enjoyed the annual grant of a miner’s right.  Prior to 1 July 1978, when the Self Government Act came into operation, the annual right was granted by the Commonwealth under the Mining Ordinance.  After self-government, Mr Fred Pocock’s annual miner’s right was granted by the Northern Territory Government through its Department of Mines and Energy.  The right of the Territory to do that has also been challenged by the Director in these proceedings.

   SELF GOVERNMENT

10. From 1 January 1911, when the Commonwealth took over the Territory from South Australia, to the commencement of Self Government, the fee simple interest in the land that now comprises Kakadu was vested in the Commonwealth of Australia by virtue of the Northern Territory Acceptance Act 1910 (Cth). On 1 July 1978, the Northern Territory (Self-Government) Act 1978 (Cth) (“the Self-Government Act”) came into operation; it established the Northern Territory of Australia as a body politic.

11. By force of statute, all interests of the Commonwealth in land in the Territory, including Kakadu, (with some exceptions that are not relevant to these proceedings) were vested in the Territory on the commencement date: see subs 69(2) of the Self-Government Act. Subsection (3) of s 69 then proceeded to state:

    “(3)All interests in land in the Territory held from the Commonwealth immediately before the commencement date are, by force of this section, held from the Territory on and after that date on the same terms and conditions as those on which they were held from the Commonwealth.”

    The effect of those two last mentioned subsections, in their application to Four Mile Hole, was first, to vest the fee simple in the land from the Commonwealth to the Territory and secondly, to reserve to Mr Fred Pocock such rights and interests as he then enjoyed upon the same terms and conditions save that he thereafter held his rights and interests in Four Mile Hole from the Territory in place of the Commonwealth.

12. Sections 1, 2 and 70 of the Self-Government Act came into operation on the day on which the Act received the Royal assent – 22 June 1978. Section 2 provided that the remaining provisions of the Act were to come into operation on 1 July 1978. Section 1 merely stated the name of the Act, but s 70 set up an important procedure for the acquisition back of certain land by the Commonwealth that would otherwise have remained vested in the Territory. In fact, the Commonwealth used its powers in s 70, in the manner hereinafter described, to take back the fee simple interest in the land in Kakadu. Before considering the provisions of section 70, however, it is first necessary to mention the effect of ss 56 and 57 of the Self-Government Act. Those sections provided that the existing laws of the Territory were to continue in force. The expression “existing law of the Territory” meant (inter alia) any Ordinance and any law in force in the Territory immediately before 1 July 1978 other than Commonwealth legislation. “Ordinance” was defined to mean an Ordinance made under the Northern Territory (Administration) Act 1910 (Cth). Thus the Mining Ordinance became a law of the Territory, thereby giving to the Territory the right, inter alia, to issue miners’ rights and mining tenements, including authorised holdings, over Crown land. However, as will be explained later, “Crown land” no longer included Commonwealth land as it had prior to Self Government.

13. Under s 70 of the Self-Government Act, the Minister was empowered to recommend to the Governor-General that any interest in land, that was vested or to be vested in the Territory by subs 69(2), be acquired from the Territory by the Commonwealth; the section also allowed for the Governor-General, acting upon such a recommendation, to authorise the acquisition of the interest for a public purpose that was approved by the Governor-General. In those cases where the Governor-General gave such an authorisation, the Minister was to publish in the Commonwealth of Australia Gazette (“the Gazette”) notice of the Governor-General’s authorisation; that notice had to contain a declaration that the interest was acquired under s 70 for the public purpose that had been approved by the Governor-General.

14. The Minister and the Governor-General acted under s 70 and, as a result, the fee simple interest in the land that was identified in the schedule to a Proclamation that appeared in the Gazette of 29 June 1978 was acquired by the Commonwealth. According to the evidence of Mr Wellings, the outer boundaries of the land, as described in the schedule to the Proclamation that was published in the Gazette, encompassed the areas that came to be known as Stages 1, 2 and 3 of Kakadu National Park. Mr Wellings is the Assistant Secretary of Parks Australia Northern Branch and the officer who has the responsibility for the day-to-day management of the Parks Australia Northern Branch. He deposed that the Branch is responsible for the management of Kakadu. Mr Wellings took up his present position in September 1999. Prior to that, and since July 1980, he has lived and worked in the Park in a variety of positions, starting as a Park Ranger and progressing, successively, to a District Supervisor, Park Manager, Executive Officer of the Kakadu Board of Management and spending his last two years as the Project Manager for Aboriginal Programs. Having regard to Mr Welling’s position of seniority, as well as his experience, I am satisfied that he was competent to give evidence about the location of the land at Four Mile Hole and to state that it is within the Park.

15. If, at or about the time of the publication of the notice in the Gazette of 29 June 1978, Mr Fred Pocock had any entitlement of any nature whatsoever to Four Mile Hole, that entitlement was qualified by the provisions of subs 70(4) of the Self Government Act. That subs provides as follows:

    “Upon publication of the notice in the Gazette or immediately after the commencement of section 69, whichever is the later, the interest to which the notice relates is, by force of this section:

    (a)     vested in the Commonwealth; and

    (b)freed and discharged from any restriction, dedication or reservation made by or under any enactment (not being an interest to which subsection (6) applies);

    to the intent that the legal estate in the interest, and all rights and powers incident to that estate or conferred by the Lands Acquisition Act 1989 in relation to that estate, are vested in the Commonwealth.”

16. Sub-section 70(6) of the Self-Government Act is in these terms:

    “Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory.”

17. Section 69 commenced on 1 July 1978 and as that is the later of the two dates, it would appear that it would be the date upon which the land in Kakadu vested in the Commonwealth. Short of a successful challenge to the validity of the notice – and no such challenge has been made in this case – the Commonwealth acquired Kakadu on 1 July 1978, “freed and discharged from any restriction, dedication or reservation …” but subject to subs 70(6). Arguably, after Self Government, Mr Fred Pocock would have held such rights and interests as he may have previously enjoyed in Four Mile Hole from the Commonwealth.

18. Gummow J, however, viewed the matter differently in Newcrest Mining(WA) Ltd v The Commonwealth of Australia (1997) 190 CLR 513 at 627 (“Newcrest”). He discussed the effect of s 70 and, in particular, subs 70(6) saying:

    “Once its true scope is perceived, the construction of s 70 presents no great difficulties.  Notices under s 70 were not to be published after 1 July 1979, this being one year after the date of general commencement of the statute (s 70(10)).  However, as proved to be the case, notices might be published in the interval between the commencement of s 70 on 22 June 1978 and 1 July 1978.  The later date was the commencement date for s 69 and the other substantive provisions of the statute.  In that interval, the Territory would not yet have come into existence as a body politic.  Accordingly, there were no interests in the subject land held from the Territory immediately before the acquisition by the Commonwealth upon the commencement of s 69.  There would be no interests held by the then non-existent body politic, the Territory, which were derived from the interest acquired by the Commonwealth under s 70 upon the commencement of s 69.”

19. In Newcrest, a mining company had asserted an interest in mining leases over parcels of land in Kakadu.  The original terms of some leases had expired but the original terms of other leases were current.  The Northern Territory had purported to renew the leases of which the original terms had expired and, in doing so, had purported to act pursuant to the terms of the Mining Ordinance.  Gummow J pointed out that that right of renewal was “not conditional upon favourable exercise of a discretion” and the statute did not contain any provision that directed that the renewal was to be “upon application or in a particular form”.  This led his Honour to conclude that Newcrest’s right of renewal “was exercisable by the lessee and required for its effectiveness no approval or other exercise of government authority”.  The effect of the High Court’s decision in the Newcrest case was to acknowledge that the mining company was in a position whereby it could exercise its rights of renewal without having to call in aid either the Territory or the Commonwealth Authorities.  That is a very different situation to the facts of this case where the holder of a miner’s right had no entitlement to demand a renewal or an extension of his existing right and no right to demand the grant of a replacement miner’s right.  Under subs 36(2) of the Mining Ordinance there was a discretionary power reserved to an authorised person to issue a miner’s right.  Whilst that power could not be used arbitrarily or capriciously to deny an application, the fact remained that there was no unilateral right reserved to the miner to demand the issue of a fresh right.  He or she required the approval of the issuing authority.

20. Sackville J in Margarula v Minister for Resources and Energy (1998) FCA 48 noted that Gummow J, in making the remarks that are quoted above, did not refer to subs 70(4), commenting at p 55 that there may be a question:

    “… as to whether Gummow J’s reasoning gives full effect to s 70(4) of the Self-Government Act, which provided that the notice was not to take effect until immediately after the commencement of s 69 …”

    However, Sackville J went on to add that the question “would not be pursued here”.  An appeal in Margarula’s case was unsuccessful: Margarula v Minister for Resources and Energy (1998) 157 ALR 160, but the Full Court did not find it necessary to comment on the contents of subs 70(4) of the Self Government Act. Dr Renwick, counsel for the Director, whilst submitting that subs 70(4) operated to avoid any gap in time prior to the creation of the new body politic, recognised that the remarks of Gummow J were part of the ratio decidendi in Newcrest and that this Court was bound by those remarks. 

21. Should that be the case, it would mean that, upon the occasion of Self Government, and as a result of the provision of the Self Government Act, the Commonwealth acquired Kakadu from the Territory “freed and discharged from any restriction …”.  In other words, Mr Fred Pocock would have lost the benefit of his authorised holding and his subsequent attempt, fourteen years later in 1992, to transfer his interests in Four Mile Hole to his son, the applicant, would have been of no legal effect.

22. Should I be wrong, however, in my interpretation of the remarks of Gummow J, I will proceed to consider the further arguments that were advanced on behalf of the Director.  However, before doing that I should set out the chain of events that occurred on 1 July 1978, as seen through the eyes of Mr Pocock:

    ·immediately prior to 1 July 1978, Mr Fred Pocock held his authorised holding from the Commonwealth;

    ·on 1 July 1978, the fee simple in the land over which Mr Fred Pocock had a right through his authorised holding was vested in the Territory; subs 69(2) of the Self-Government Act;

    ·all interests in land in the Territory that were previously held from the Commonwealth (including Mr Fred Pocock’s Garden Area) were thereafter held from the Territory but on the same terms and conditions; sub 69(3) of the Self-Government Act;

    ·the Commonwealth gave notice under s 70 of the Self-Government Act that it acquired certain land (which included Four Mile Hole);

    ·the fee simple in the land so acquired thereafter vested in the Commonwealth; subs 70(4) of the Self-Government Act;

    ·all interests in such land in the Territory that were previously held from the Territory (including Mr Fred Pocock’s Garden Area) were thereafter held from the Commonwealth but on the same terms and conditions; subs 70(6) of the Self-Government Act.

    ·Notwithstanding the views of Gummow J to the contrary, Mr Fred Pocock thereafter held his authorised holding from the Commonwealth. 

1. Dr Renwick was prepared to accept that the chain of events that occurred on 1 July 1978 might have culminated with Mr Fred Pocock holding his miner’s right and his Garden Area from the Commonwealth. He arrived at that conclusion because of the provisions of subs 69(3) and subs 70(6) of the Self Government Act. He pointed to the definition of the word “interest” in s 56 of the Self Government Act:

   “any right, title, estate, power, privilege, claim, demand, charge, lien or encumbrance, whether at law or in equity”

   submitting that both the miner’s right and the Garden Area were caught by the definition.

2. I do not consider that the breadth of this definition is relevant to the issues in these proceedings.  Subsection 69(3) deals with “interests in land” but notwithstanding the breadth of the definition of the word “interest”, it does not affect a miner’s right because a miner’s right, as distinct from an authorised holding, is not, in my opinion, an “interest in land”.  Contrary to the views expressed by counsel for the Director, I am of the opinion that Adamson v Hayes stands for the proposition that a miner’s right is not an interest in land on which ss 69 and 70 of the Self Government Act could operate.

3. Dr Renwick next claimed that the Self Government Act did not give to the Territory any power to renew a right that was not held from it.  I do not agree with that submission:  it confuses the Commonwealth’s ownership of land with the Territory’s legislative powers.  In the first place, the fact that the fee simple in the land had vested in the Commonwealth, did not mean that Mr Fred Pocock held his miner’s right from the Commonwealth.  The Commonwealth had given up its rights to issue miner’s rights under the Mining Ordinance when it gave Self Government to the Territory.  Secondly, the statement that the Territory did not have the power to renew a right that was not held from it, fails to address the powers of the Territory.  As between the Territory and the Commonwealth, the only body capable of issuing miners’ rights over land within the Territory was the Territory.  The question in this litigation is, not whether the Territory had power to issue a miner’s right, but whether a miner’s right could be the basis for the grant by the Territory of some interest in land that was owned by the Commonwealth.

   THE MEANING OF CROWN LAND

4. The term “Crown land” was initially defined in the Mining Ordinance as meaning (inter alia):

   “all land of the Crown.”

   The definition then went on to identify certain reserves and other areas that were to be included in the definition and certain other interests that were excluded from the definition.  Those additional matters are not relevant for present purposes.

5. The definition of “Crown land” was, however, amended by s 3 of the Mining Ordinance 1970 (NT) to include the words “or of the Commonwealth” after the words “land of the Crown”.  So far as it is relevant for present purposes, this meant that from 1970, the expression “Crown land” in the Mining Ordinance meant, subject to the additions and deletions that were set out in detail:

   “… all land of the Crown or of the Commonwealth.”

6. As a preparatory step towards Self-Government, the Legislative Assembly for the Northern Territory passed the Transfer of Powers (Self-Government) Ordinance 1978 (NT).  It came into operation on 1 July 1978 and it amended the Ordinances that were specified in its s 4, Sch 1 Pt VIII.  One such amendment was to delete the words “or of the Commonwealth” from the definition of “Crown land” in the Mining Ordinance.

7. This change in the legislative definition of “Crown land” was used by the Director against the interests of Mr Fred Pocock in this fashion:

   ·miner’s rights and mining tenements only gave rights over Crown land: (See s 23 of the Mining Ordinance and reg 81);

   ·as a result of the amendment to the definition of “Crown land” in the 1970 amending legislation, Crown land included land of the Commonwealth;

   ·however, the removal of the words “or of the Commonwealth” in 1978, coupled with the establishment of the new body politic, meant that any miner’s rights and any mining tenement thereafter granted by the Northern Territory Government could only be in respect of “Crown land” which meant land held by the Crown in right of the Territory;

   ·from 1 July 1978, it was no longer possible for the Territory to grant miner’s rights or mining tenements that would have effect over Commonwealth land.

8. This subject was referred to by Black CJ and Foster J in their joint majority judgment in the Full Court of the Federal Court in Commonwealth v Newcrest Mining (WA) Ltd (1995) 58 FCR 167 at 183 where their Honours, after reciting the changes to the legislation, said:

   “All future leases were to be granted by the relevant Northern Territory Minister only in respect of land vested in the Territory.  There was no power in the Ordinance to grant leases over Commonwealth land …”

   Their Honours’ decision was overturned on appeal by the High Court:  (see Newcrest above) but for reasons that did not affect the accuracy of that statement: see the remarks of Gummow J at p 629 and the dissenting judgment of Brennan CJ at 528.

9. In the history of this matter, Mr Fred Pocock enjoyed a Miner’s Right No 26101 that expired on 14 December 1978.  The Director then argued, that if it be assumed for present purposes, that this miner’s right remained operational to its expiry date, notwithstanding the change in the definition of “Crown land”, it would mean that in December 1978, Four Mile Hole, then being Commonwealth land, it was beyond the power of the Territory to grant a fresh miner’s right:  and if that be correct then thirty days later the authorised holding was deemed abandoned.

10. There is, in my opinion, a fallacy in this argument because it overlooks the fact that a miner’s right does not attach to an identifiable piece of land:  only the authorised holding, that is, the Garden Area, was identified with the five acres of land at Four Mile Hole.  However, unlike the miner’s right, there was no need, on 1 July 1978 or at anytime thereafter, to renew the Garden Area, or to apply for an extension of the terms of the Garden Area or to apply for a new grant of the Garden Area. 

11. The change in the definition of “Crown Land” in 1978 did not, therefore, affect either Mr Fred Pocock’s miner’s right or his Garden Area. It did not affect his miner’s right because a miner’s right was merely a right to conduct an activity – it did not attach to land. It did not affect his Garden Area because, subject to my interpretation of the remarks of Gummow J, subs 70(6) of the Self Government Act would have preserved his rights. Furthermore, a change to the status of that tenement (so that it no longer applied to Four Mile Hole) would have amounted to an acquisition of property otherwise than on just terms: and that would have offended the provisions of subs 50(2) of the Self Government Act. Section 50 of the Self Government Act provides that any acquisition of property must be on just terms.

    THE ESTABLISHMENT OF KAKADU NATIONAL PARK AND THE NATIONAL PARKS AND WILDLIFE CONSERVATION ACT 1975 (CTH)

12. Part II of the National Parks Act, comprising ss 6 to 14A is entitled “Parks and Reserves”. The object of the Part is to make provision for the establishment and management of parks and reserves: see subs 6(1). Subsection 7(2) empowers the Governor-General, by Proclamation to declare an area, that is specified in the Proclamation, to be a park or a reserve and to assign a name to it. The word “area”, as used in s 7, is defined to include various subject matters but relevantly, for the purposes of this litigation, it means “an area of land owned … by the Commonwealth …”. However, “area” can also mean “an area of Aboriginal land held under lease by the Director”. Subsection 7(7) provides that:

    “Upon the declaration of a park or reserve, any interest held by the Commonwealth in respect of the land (including any sea-bed or any subsoil) within the park or reserve, but not in respect of any minerals, becomes, by force of this subsection, vested in the Director.”

    Section 8 then allows for the lodgment of a copy of any Proclamation under s 7 with the Registrar of Titles for Territory; that lodgment then empowers the Registrar to make all appropriate entries in his or her register “as are necessary to reflect the operation of section 7 in relation to the land by virtue of the Proclamation.”

13. By a Proclamation that was published in the Gazette of 5 April 1979, the Governor-General declared the area of land specified in the schedule to the Proclamation to be “a park”; he further assigned to that Park the name “Kakadu National Park”. Six areas of land, that were within the boundaries of the land as described in the schedule, were excluded from the operation of the Proclamation. Portion 4061 (in which Four Mile Hole was situated) was part of one of the areas that was excluded. That position changed five years later. By a Proclamation that was published in the Gazette of 28 February 1984, the Governor-General declared the area of land specified in the schedule to the Proclamation to be “a park” and he proceeded in the Proclamation to assign to it the name “Kakadu (Stage 2) National Park”. Portion 4061 (and therefore the land at Four Mile Hole), which was land that was owned by the Commonwealth as a result of the notice that was published in the Gazette of 29 June 1978, now became part of the Park. The effect of the Proclamation was to vest the Commonwealth’s interest in the land in the Park in the Director of National Parks and Wildlife, the respondent in these proceedings. That came about as a result of the provisions of subs 7(7) of the National Parks Act to which reference has already been made.

14. The vesting of the freehold interest in Northern Territory Portion 4061 in the Director was ultimately registered by the Registrar-General for the Northern Territory, as provided for by s 8 of the National Parks Act and s 113 of the Real Property Act (NT), on 16 April 1993. It is now part of the land that is described in Certificate as to Title Register Book Volume 305 Folio 136. No reservation of any rights or interests in favour of any member of the Pocock family is noted on the title.

15. A minor change occurred in December 1985 when the Proclamation that had established Kakadu (Stage 2) National Park was revoked.  At the same time, the 1979 proclamation with respect to the establishment of Kakadu National Park was amended to include the land that had formerly constituted Kakadu (Stage 2) National Park.  That change does not have any effect on the issues that are to be resolved in this case.

16. As I have already said, the power of the Territory to issue a miner’s right after Self-Government has been challenged by the Director in these proceedings. In the first place, the Director claimed that Mr Fred Pocock ceased to be the holder of a miner’s right from the date of the first purported issue by the Territory of a miner’s right after 1 July 1978; the Director claimed that the Territory had no power to grant a fresh miner’s right, but I have rejected that claim. Secondly, the Director has relied on the provisions of the National Parks Act, arguing that from the time when the land at Four Mile Hole became part of the Park under the National Parks Act on 28 February 1984, any new issue of a miner’s right, if it had not previously ceased, was subject to the operation of s 8B of the National Parks Act.

17. Section 8B was introduced into the Act by the National Parks and Wildlife Conservation Amendment 1978.  That last mentioned Act received a Royal assent on 9 June 1978.  Subsection 8B(1) provides as follows:

    “Where any land is within a park, reserve or conservation zone:

    (a)subject to paragraph (b), the prescribed provisions of this Act and of the regulations (other than subsection 8A(13) or regulations made under paragraph 8A(8)(a)) and, in the case of a park or reserve, the provisions of the plan of management do not affect;

    (i)any interest in respect of that land or in respect of any minerals on, in or beneath that land held immediately before that land was within the park, reserve or conservation zone by any person other than the Commonwealth or the Director; or

    (ii)the application of any law of a State or Territory in relation to such an interest; and

    (b)notwithstanding anything to the contrary contained in any law of the Commonwealth or of a State or Territory, an interest referred to in subparagraph (a)(i) (not being an interest in respect of minerals beneath the land concerned) shall not be renewed, and the term of such an interest shall not be extended, except with the consent in writing of the Minister and subject to such condition as the Minister determines.”

18. Primarily, the section is and was aimed at protecting existing interests in land.  Thus, it was submitted by counsel for the Director that subpar 8B(1)(a)(i) would have initially protected an existing miner’s right and an existing authorised holding such as a Garden Area.  However, so the argument proceeded, that position would be short lived as subpar 8(B)(1)(b) would operate, by reference to the concepts of renewal and extension, to prevent a fresh grant of a miner’s right “except with the consent in writing of the Minister and subject to such conditions as the Minister determines”.  No such consent has ever been given under this provision either to Mr Fred Pocock or to his son, the applicant.

19. If, therefore, Mr Fred Pocock had a valid miner’s right on foot on 28 February 1984 (which the Director has denied), it was claimed by the Director that it expired at the end of its then current yearly term and was never lawfully re-issued or renewed or extended.  That argument, even if it be correct, does not, however, address the status of the Garden Area for, by that time, the Mining Ordinance had been repealed and replaced by the Mining Act 1980 (NT) and that legislation purported to sever the prior connection between a miner’s right and a mining tenement with retrospective effect as from 1 July 1982:  that is to say it was no longer necessary to hold a miner’s right as a condition for holding a Garden Area.  I will return to this subject when I discuss the provisions of the Mining Act.

20. Although I have rejected the proposition that a miner’s right is an interest in land, I recognise that if I am wrong then s 8B assumes importance in the Director’s case. The word “renew” in par 8B(1)(b) of the National Parks Act suggests, prima facie, the prolongation of an earlier period of time: c.f. the comments of Gummow J in Newcrest at 620. However, it seems to me, that in the circumstances of this particular piece of legislation, it is necessary to extend the meaning of the word “renewed” so that it covers the grant of a fresh right. The aim of par 8B(1)(b) is to bring to an end, unless the Minister otherwise approves, any interest in respect of land of the type mentioned in subpar 8B(1)(a)(i). It would clearly frustrate the object of par 8B(1)(b) if the Minister could effectively prevent renewals or extensions of interests but could not prevent the issue of a new right in place of one that had expired by effluxion of time. If contrary to my opinion, a miner’s right was an interest in land within the meaning of subs 8B(1) of the National Parks Act, par 8B(1)(b) would apply, in my opinion, to prevent the fresh grant of an annual miner’s right unless the Minister had granted his consent. The general rule of construction of a statutory provision is that the grammatical and ordinary sense of the words is to be adhered to, unless they lead to some absurdity or to some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity or inconsistency, but no further: see the speech of Lord Wensleydale in Grey v Pearson (1857) 6 HLC 61 at 106, repeated by Lord Blackburn in Caledonian Railway Co v North British Railway Co (1881) 6 App Cas 114 at 131 and also repeated in the advice of the Privy Council in Watson v Phipps (1985) 63 ALR 321 at 324. The words: “extension” and “renewal” are used, sometimes interchangeably to refer to the continuation of some contract or agreement; a lease is a common example. One view, however, is to the effect that there is a basic difference in that an “extension” continues the same contract for a specified period, whereas a “renewal” institutes a new contract that replaces the old one:

    “Both of these words are used in referring to the continuation of a legal contract, such as a lease.  But the two have under-gone a subtle DIFFERENTIATION with sometimes important ramifications:  an extension continues the same contract for a specified period, whereas a renewal institutes a new contract that replaces the old one.  Unfortunately, some courts muddle the two words, using them interchangeably or using both but not defining the difference.”  (A Dictionary of Modern Legal Usage:  2^nd Ed 1995 p343 BA Garner)

21. A further argument that was advanced by the Director relied, once again, on the provisions of the National Parks Act. The Director pleaded that, as from 18 May 1987, the date upon which subs 10(1A) of that Act came into force, Mr Fred Pocock was prevented from continuing to occupy the land at Four Mile Hole. The subsection is in the following terms:

    “(1A)No operations for the recovery of minerals shall be carried on in Kakadu National Park.”

22. The expression “operations for the recovery of minerals” is defined in s 3A of the National Parks Act to mean (subject to some qualifications which are not relevant to these proceedings):

    “Any operations or activities for or in connection with, or incidental to, the mining … or recovery of minerals …”

23. The Director’s argument was that Mr Fred Pocock’s right of occupancy was for the purpose that was authorised by the terms of his authorised holding: that purpose was “a market garden in connection with mining” and was, as such, an “operation for the recovery of minerals” within the meaning of that term in s 3A of the National Parks Act. That argument, like the previous one, overlooks the fact, that as from 1 July 1982, the Mining Act had replaced the Mining Ordinance and, arguably the link between a miner’s right and a mining tenement (such as a Garden Area) no longer existed. I will also return to this subject when I discuss the provisions of the Mining Act.

    ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT

24. In 1981, Mr Justice Toohey, in his capacity as the Aboriginal Land Commissioner, presented his report entitled “Alligator Rivers Stage II Land Claim” to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory.  In that report, which was presented pursuant to the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”), the Commissioner referred to Mr Fred Pocock. In particular, he noted, contrary to the views of Gummow J in Newcrest, that Mr Fred Pocock had held his interests from the Territory for an instant of time, immediately prior to the Commonwealth’s acquisition of the Park.  Mr Fred Pocock was not affected by the Commissioner’s report, however, for his Honour concluded that Mr Pocock’s two tenures were to the west of the land that was the subject of his recommendation to the Minister for a grant.  

25. Subsequently there was a further land claim, sometimes called the “Alligator Rivers Stage II (Repeat) Land Claim”, (“the Repeat Land Claim”), but recorded in the official records of the office of the Aboriginal Land Commissioner as the “Kakadu Region Claim No 179”. That claim extended over four separate parcels of land, the first of which was Northern Territory Portion 4061 (which included the land at Four Mile Hole). No evidence was led to explain whether that claim has yet been listed for hearing. The Court was advised however, during the course of the hearing, that the Director is awaiting the outcome of this land claim before he decides what action (if any) he will take with respect to the interests of Mr Pocock and the interests of other people who are claiming rights of occupancy to land in Kakadu. As the Repeat Land Claim includes Four Mile Hole, that means that, until the Claim is finally disposed of, it is beyond the power of the Director to make any grant of any estate or interest in any part of the land that is the subject of the Repeat Land Claim: see subs 67A(2) of the Land Rights Act which is as follows:

    “Where an application referred to in paragraph 50(1)(a) in respect of an area of land is made on or after the day of commencement of this section, any grant of an estate or interest in that area of land, or in a part of that area of land that is purportedly effected on a day before that traditional land claim, in so far as it relates to the area of land to which the grant relates, is finally disposed of, being the day on which the application is made or a later day, shall be of no effect.”

    THE MINING ACT

1. On 1 July 1982, the Mining Ordinance was replaced by the Mining Act (NT). From that time on, Garden Area 36A became known as, and was recorded as, Authorised Holding 15 (“HLDN 15”), in the records of the Territory. The Mining Act did not contain any provision for a tenure that was the same as or equivalent to a Garden Area for which provision had been made in the Mining Ordinance. However it did aim to preserve all existing rights and interests. For example subs 191(1) stated:

   “Where a miner’s right was granted under the repealed Act and was in force immediately before the commencement of this Act, it shall continue in force as a miner’s right under this Act for the remainder of the term for which it was issued under the repealed Act.”

   Subsection 191(19) then went on to say:

   “Where, immediately before the commencement of this Act, a miner was in lawful occupation of an area of land under the repealed Act as –

   (a) – (e)    …
   (f)            a market garden area;
   (g)           …

   he may continue to occupy that land under that title subject to the same terms and conditions as then applying, as though this Act had not come into operation.”

2. Subsection 191(19) was amended on 25 September 1984 by Act No 45 of 1984 with retrospective effect to the date of the commencement of the Mining Act.  It deleted the words “a miner” and, in their place, it inserted the words “the holder of a miner’s right issued under the repealed Act”.  It also deleted the words “he may continue”, substituting for them the words “he may, notwithstanding the expiration of the term for which that miner’s right was issued, continue”.  The subsection, as then amended, therefore reads:

   “(19)Where, immediately before the commencement of this Act, the holder of a miner’s right issued under the repealed Act, was in lawful occupation of an area of land under the repealed act as -

   (a) – (e)…

   (f)a market garden area; or

   (g)…

   he may, notwithstanding the expiration of the term for which that miner’s right was issued, continue to occupy that land under that title subject to the same terms and conditions as those applying, as though that Act had not come into operation.

3. The effect of the 1984 amendment was to break the connection between the miner’s right and the Garden Area. Occupancy of land as a Garden Area was no longer dependent on the continuance of a miner’s right. It could no longer be said, therefore, that Mr Fred Pocock’s occupancy of Four Mile Hole was, in anyway related to operations for the recovery of minerals within the meaning of subs 10(1A) of the National Parks Act. That argument must, therefore, be rejected. However, the effect that this amendment may have had so far as Mr Fred Pocock was concerned cannot be evaluated without taking into consideration the fact that Kakadu (Stage 2) National Park was declared on 22 February 1984 which predated the date of the operation of Act No 45 of 1984 by some seven months.

4. Mr Henwood, in his written submissions, claimed that the amendment to subs 191(19) was irrelevant in the present case;  the Territory disagreed with the proposition that was put by the Director to the effect that an essential condition of subs 191(19), as originally enacted, was the continuation of an annual miner’s right. Mr Whitfield was not able to tell the Court about the Department’s procedures for the issue of an annual miner’s right before Self-Government as he was not then employed in the Department. In 1982 however, after the Mining Act came into force, it became the practice of the Department upon receipt of the appropriate application and fee to issue miners’ rights in perpetuity. For the Territory to switch, as it did on 21 July 1982, from granting Mr Fred Pocock an annual miner’s rights to a right in perpetuity meant, in my opinion, that his occupation of the land was not “subject to the same terms and conditions”. According to the Territory, the critical requirement of s 23 of the Ordinance and subs 191(19) of the Act was that the tenement holder was to hold a miner’s right. There was no basis, so it was claimed, for a construction that differentiated between an annual miner’s right on the one hand and a perpetual miner’s right on the other. I cannot agree with that proposition. To suggest that a right, which is enjoyed in perpetuity, is no different to a right which has a limited life of twelve months and which may – but not will – be the subject of repeat annual grants, is patently incorrect.

5. Subsection 191(19), as originally enacted, was intent on allowing a person, such as Mr Fred Pocock, to continue to occupy the Garden Area “subject to the same terms and conditions as then applying ...”.  At that point in time, the nexus between the Garden Area and the miner’s right had not been broken.  In other words, on 1 July 1982, those “terms and conditions” were centred upon the annual grant of a miner’s right.  When, on 21 July 1982, the Territory granted Mr Fred Pocock a miner’s right in perpetuity, he ceased, in my opinion, to occupy the Garden Area “subject to the same terms and conditions as then applying” – those being the material words in subs 191(19) of the Mining Act.  That, no doubt, was the reason for the 1984 amendment with its retrospective effect.  However, the critical time for Mr Fred Pocock was, if not in July – August 1982, most certainly in July – August 1983.  That would have been the time in which he should have applied for a fresh grant of an annual miner’s right.  The right in perpetuity that was granted in July 1982 might, arguably, be regarded as sufficient to amount to a fresh “annual” grant of a miner’s right – although I do not think so – but there can be no doubt that in July – August 1983, there was no grant of any nature whatsoever of any miner’s right.  At that stage, upon the expiration of 30 days grace, it could not be said that subs 191(19), in its original form would have operated as Mr Fred Pocock was no longer holding his Garden Area on the same terms and conditions:  and the remedial legislation with its retrospective effect was yet to come into operation.  Six months or so later, Kakadu Stage 2 was declared and, with that, the Commonwealth bar to any renewal of any interest came into full force and effect - and before the introduction of the retrospective legislation.

6. The attempt, retrospectively, to disjoin the miner’s right and the authorised holding by s 4 of the Mining Amendment Act 1984 (NT) on 25 September 1984 was ineffective so far as Mr Fred Pocock was concerned. When it came into force its provisions were in conflict with the provisions of par 8B(1)(b) of the National Parks Act, which by that time then applied to Four Mile Hole.

   THE LAPSE IN REGISTRATION

7. Exhibit A2, the agreed book of documents, contains, at p 1, the record of the miners rights that had annually been issued to Mr Fred Pocock.  The first entry was in relation to a Miner’s Right No 9390 that expired on 3 January 1961.  Subsequent miner’s rights, including No 12938 (which expired on 24 May 1966) were issued up to No 28745 which expired on 15 July 1980.  There was then an unexplained gap as Mr Fred Pocock’s next and last annual Miner’s Right No 31564 was listed as expiring on 12 July 1982.  (As I have said, on 21 July 1982, the Territory purported to issue him with a Miner’s right in perpetuity.)  Upon the basis that the last annual right was only for a period of one year, this meant that Mr Fred Pocock’s last Miner’s Right commenced on 13 July 1981.  This therefore meant that Mr Fred Pocock did not enjoy a miner’s right between 16 July 1980 and 12 July 1981.  It also meant, having regard to the provisions of ss 36 and 38 of the Mining Ordinance that thirty days after the expiration of the currency of the right, i.e. on 14 August 1980, Mr Fred Pocock’s authorised holding was deemed abandoned.  Furthermore, there was no provision in the legislation which allowed for a resurrection of that authorised holding when Mr Fred Pocock later obtained a fresh miner’s right some twelve months later.

8. The Territory acknowledged that the hiatus between 16 July 1980 and 12 July 1981 “may have” had the result, by force of s 38 of the Ordinance, that the Garden Area was deemed to have been abandoned.  The submission continued that if that were so (and it seems to me to be clear that it must be so) it would not appear to be possible for the Garden Area to be taken up again when a new miner’s right was obtained by Mr Fred Pocock in 1981.  The Garden Area was “deemed abandoned”.  No action – such as an act of forfeiture – was required from any government instrumentality.  The cessation of the legal existence of the authorised holding came about by force of statute and there was no statutory right of reinstatement or renewal upon the grant of a new miner’s right.  It would have been necessary to make a fresh application for a Garden Area.  However, by 1981, the definition of Crown Land did not include land that was vested in the Commonwealth;  it would not have been possible, in 1981, for Mr Fred Pocock to have obtained from the Territory an authorised holding over Four Mile Hole.

   AGENCY

9. I turn next to consider whether it could be argued that the Territory was, in some way, an agent for the Commonwealth in the exercise of its powers under the Mining legislation. 

10. It is well established that the Commonwealth may confer upon a Territory the legislative or executive power to affect Commonwealth interests in property:  see Svikart v Stewart (1994) 181 CLR 548; Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248; and Margarula v Minister for Resources and Energy (1998) 157 ALR 160. However, it has not been suggested that any such conferral has been made in circumstances that would have any effect upon these proceedings.

11. Mr Whitfield, who described himself as a Manager with the Territory’s Department of Mines and Energy and the acting Director of Titles was called as a witness for the Director. Mr Whitfield acknowledged that there was no record in his Department’s files of any Territory officer ever having been appointed to act as agent or delegate of the Director for the purpose of giving consents under par 8B(1)(b) of the National Parks Act. However, in a memorandum dated 15 April 1996 from Mr Geoff Farnell, the Acting Secretary of the Department at that time, to the Territory’s Minister for Mines and Energy, the question of the occupation of GA 36A by the Pocock family was discussed. Although the memorandum did not suggest that the Commonwealth was then challenging the Territory’s conduct, it did make clear that there were, within the Department, doubts about the Territory “accepting and actioning a transfer” of GA 36A. The memorandum continued: “Legal advice at the time advised this department to accept and register the Transfer for “what it was worth” on the basis “that we were acting as the Commonwealth’s agent”. Mr Whitfield was shown Mr Farnell’s memo to the Minister; he had not seen it before and he did not know that there was, in April 1996, concern in his Department about the legalities of the Department’s actions in receiving rents and exercising control over mining tenements that were situated in the Park. However, he identified Mr Farnell as a senior officer and as one who would be authorised to write the Minister on matters of principle. He agreed that the letter conveyed to the Minister the view that the Department was receiving rent from the Pocock family at a time when the Department had cause to believe that it might not be lawful to receive that rental.

12. Counsel for the Director read the affidavit of Ms Deirdre Allen who is employed as Projects and Contracts Manager for Parks Australia North in Darwin.  Ms Allen deposed to the detailed searches that she had made or caused to be made of the files of her Department and of other Commonwealth departments.  She listed, in a schedule to her affidavit, numerous files (two of which could not be located) and then said of them that she:

    “… personally searched all of those files for record of any request by any Northern Territory Department or Authority for consent from the Commonwealth or the Respondent to any dealings, between 1 July 1978 and the end of 1992, in GA 36A, HLDN 15 or, any associated Miners Rights held by Frederick Henry Pocock or Robert Charles Pocock, in relation to Four Mile Hole.”

13. Ms Allen did not find any record that the Northern Territory – nor, indeed, any person or authority – had sought the consent of the Director to any dealings with respect to a miner’s right that had been issued in the name of Mr Pocock or his father or to any dealings concerning the Garden Area. 

14. In response to questions from Ms Jones, Mr Pocock’s sister, Mr Harmer and Mr Whitfield each said that he was unaware of any directive from the Commonwealth or from the ANPWS to the Territory’s Department of Mines and Energy that prohibited his Department from dealing with mining tenements.  Mr Harmer also said that he was unaware of any directives from those sources regarding the receipt of moneys or the dealings with tenures in Kakadu National Park.  Mr Harmer was asked, and against the objection of counsel for the Director, I allowed him to state that, as a matter of fact, the Northern Territory’s Mining Registrar issued miners’ rights under the Mining Act without seeking the consent of the Commonwealth. 

15. Putting to one side any consideration of the legal position, Mr Harmer made it clear that, as a matter of fact, the Territory Government, through its Department of Mines and Energy, continues to administer tenures that are situated in Kakadu National Park, to collect the rents and to enforce covenants and that it will continue to administer them until such time (if at all) as it is established that the right to administer such tenures no longer remains in the hands of the Territory.  Mr Harmer acknowledged, for example, that the Territory’s Department of Mines and Energy regards itself as competent to supervise the Pocock family’s occupancy of Four Mile Hole.  Mr Harmer’s opinions, as stated in his evidence, are supported by documentary evidence in the form of a letter dated 31 March 1988 under the hand of Mr R L Adams, who was then, and still is, the Director of Mines and Energy.  In that letter which was addressed to Mr Fred Pocock, the Department of Mines and Energy clearly claimed control over the Garden Area.  The letter was in the following terms:

    “Our records show that you are the holder of HLDN15 (formerly GA36A) registered under the now repealed Mining Act 1939-1979.

    I should like to draw your attention to the requirement that, to retain your rights under your current tenement, the area must be continuously occupied and used for the purpose for which it was granted; unless an exemption from the conditions of use has been obtained from this Department.

    It is the Department’s intention to visit all tenement areas this coming Dry Season to assess present land use.  These inspections will be carried out in the company of the tenement holder whenever possible.

    In the meantime could you please provide me with the following information by Friday 6 May 1988.

    1.      Is the tenement area continuously occupied?

    2.      Is the area fenced?

    3.      For what purpose or purposes is the area being presently used?”

16. Notwithstanding the absence of the two files, the combined weight of Ms Allen’s evidence, together with the evidence of Messrs Harmer and Whitfield, satisfies me, on the balance of probabilities, that no request of the type discussed by Ms Allen was ever made by any instrumentality of the Territory to any instrumentality of the Commonwealth.  There was no evidence to suggest that the Territory has acted as the agent of the Commonwealth or of the Director in its administration of miners’ rights or mining tenements and, in particular, with respect to its dealings with the Pocock family’s occupancy of Four Mile Hole. 

17. I am further satisfied from the evidence of both Mr Harmer and Mr Whitfield, as well as from the documentary evidence, that responsible officers in the Territory’s Department of Mines and Energy were aware, for a period of some years, that there were doubts about the ability of the Territory to administer mining tenements in the area of the Park.  Notwithstanding these doubts however, the Territory continued to receive rent from the Pococks, thereby holding out to the Pococks that their right of occupancy at Four Mile Hole was governed by Territory legislation.  I do not, however, find that responsible officers of the Territory were aware of the contacts and communications that had passed between the Pococks and the Director with respect of the family’s presence in the Park at Four Mile Hole and at West Alligator Head and to which reference is made later in these reasons.

18. Mr Whitfield expressed the view that the effect of subs 191(19) of the Mining Act meant that the person holding a Garden Area as at 1 July 1982 was entitled to continue in occupation of the land and it was his belief that, as a consequence of the 1984 amendment, there was no longer any requirement for that person to continue to hold a miner’s right (112/6).  I accept what Mr Whitfield said – not as a statement of law – but as the practical manifestation of the manner in which his Department administered the legislation.  Having made that clear, I do however agree, as a matter of law, with what he said, but only in respect of Crown land, that is, land that is held by the Crown in right of the Territory.

    CONCLUSION

19. The provisions of s 191 that have been set out above were intended to ensure the protection of authorised holdings throughout the whole of the Territory.  If it were not for the fact that Mr Pocock’s interest in Four Mile Hole lies within the boundaries of the Park and is therefore the subject of Commonwealth legislation, it would seem reasonably clear that, if on 1 July 1982 Mr Fred Pocock held a valid interest in his Garden area, s 191 would have protected his ongoing occupation of that land.  However, I have come to the conclusion that Mr Fred Pocock did not hold a valid interest in his Garden Area on 1 July 1982.  He had lost it on 14 August 1980 and it had never been revived or renewed.  Even if that finding be wrong and the Garden Area holding remained, I am forced to conclude that it came to an end two years later in July 1982 when the Territory issued a miner’s right in perpetuity instead of an annual miner’s right.

20. Mr Pocock does not accept that the vesting of the fee simple interest in Four Mile Hole in the Commonwealth and then in the Director was valid.  He complains that it was “unlawful on grounds of law and equity and done so in stealth without proper notice to him or his father …”.  Alternatively, he claims that if the vesting was lawful, he, nevertheless remains the lawful lessee.  I do not consider that Mr Pocock can mount a cause of action that might be based on lack of proper notice.  No evidence on that subject was led.  The resolution of the disputes in this litigation has hinged upon the true identification of the right, title or interest that was first granted to Mr Fred Pocock and whether or not they remained in existence.  My conclusion is that Mr Fred Pocock lost his right to occupy Four Mile Hole in 1980 – and if not in 1980, then in 1982.  Indeed, on my interpretation of the judgment of Gummow J in Newcrest, he may have lost them as early as 1978. He therefore had nothing to transfer to his son, the applicant.  The document of transfer that was registered by the Warden and the Warden’s “Certificate of Transfer of a Mining Tenement or Interest therein other than a Lease” were, and are, nullities.

    ABORIGINALITY

21. In his opening statement (which was read by one of his sisters) Mr Pocock said that he wished to make three points:  the first of them dealt with his claim under the mining legislation to a right of occupancy at Four Mile Hole; the second was the subject of his Aboriginality and the third was his allegation of discrimination and victimisation.

1. In par 21 of his amended statement of claim Mr Pocock pleaded that he and his family had rights of occupancy at Four Mile Hole because of his Aboriginality.  He claimed as follows:

   “That the applicant further says that he and his family have legal rights to continue with their current tenancy by virtue of his Aboriginal ethnic status, and also by virtue of the deep spiritual and cultural links with the land he now occupies and where his father lies buried.”

2. I respect Mr Pocock’s spiritual and cultural beliefs and I accept, without question, his evidence about his links with the land, but I know of no cause of action in the general jurisdiction of this Court that would acknowledge the existence of the claim that is asserted in par 21 of his amended statement of claim. The Land Rights Act and the Native Title Act 1993 (Cth) both contain extensive statutory rights in respect of land that are available in appropriate cases for Aboriginal claimants. However, those rights are only available in proceedings that are instituted under one or other of those statutes. There is no general principle of law that grants any right to any land only upon the combined basis of a person’s ethnicity and his or her spiritual and cultural links to that land.

3. This particular issue need not, however, be investigated further.  It transpired that on the second day of the trial the parties arrived at an arrangement which was the subject of a memorandum that was handed up, by consent, by counsel for the Director.  On the issue of Aboriginality, the memorandum recorded that Mr Pocock, without any admissions, withdrew “his claims based on Aboriginal and Native Title rights”.  The second issue was to the effect that Mr Pocock would continue to pursue his other two claims.  The third issue was interesting.  As recorded, it was as follows:

   “3.The current policy of the Director, which is unlikely to change, is not to seek the eviction from 4 Mile Hole of the Pocock family and work with the family to resolve management issues arising from the occupation of this area until the conclusion of the land claim process over the area.  Once the land claim is concluded, the Pocock’s position will be discussed with any recognised traditional Aboriginal owners.”

4. As I understand it, the Director’s policy will not be affected by the outcome of this litigation and the reference in the memorandum to “the land claim process over the area” is a reference to the Repeat Land Claim. 

   DISCRIMINATION

5. In the interests of Mr Pocock and his family I propose to address this subject on the assumption that his pleadings plead an available cause of action against the Director;  the cause of action claims to be based on conduct that, if proved, would allegedly amount to discriminatory conduct that adversely affected Mr Pocock and his father.

6. Mr Pocock claimed that there were three other holdings in the Kakadu National Park that were the same as or, at least, similar to the holding that he claimed at Four Mile Hole.  Two were enjoyed by the Gagadu Association Inc and the third had been held by the late Michael Alderson.  He complained that they had not been threatened by the Director with eviction from their holdings as had he; he argued that the threats against him had made him the victim of discrimination.  The Alderson holding is a five-acre Garden Area (GA27A) that was covered by a miner’s right; it is within the boundaries of the Park in the vicinity of Jim Jim.  The reference to that Garden Area appears in the records of the Territory’s Department of Mines and Energy.  It is a Garden Area of 2.02 hectares (which would be about 5 acres).  The records of the Department reflect the fact that the Department has annually received rents from the Alderson family for the Garden Area.  The search certificates in respect of the Gagadu Association Inc show that one of the holdings was described as BA 7A having an area of .47 hectares.  I understand that to be a “business area” for the Border Store on the East Alligator River; the other holding is Garden Area 39A, having an area of 2 hectares, and it would seem to be the same type of holding as that at Four Mile Hole.

7. The area commonly known as the Border Store was, according to the evidence of Mr Harmer, a combination of the Garden Area and the Business Area.  He said that he knew that it had been the subject of a transfer at some stage prior to Mr Fred Pocock’s transfer of Four Mile Hotel to his son but he was not asked for, nor did he give, any further details of the parties to that transfer.  Mr Harmer also referred to the Alderson’s Garden Area.  William Alderson died at Darwin on 17 February 1979 and Public Trustee obtained a grant of Letters of Administration with the will annexed in the Supreme Court of the Northern Territory.  Counsel for the Director and Mr Pocock agreed that, in the course of the administration of the estate, Public Trustee transferred or assigned the late William Alderson’s interest in GA 27A to his son, Michael.  The coding GA 27A was subsequently changed in the records of the Department to HLDN 13 and the parties agreed that the holding is now registered in the Territory’s records in the name of Michael Alderson.  It appears from the Department’s records that the transfer from Public Trustee to Michael Alderson was recorded by the Department on 14 May 1984.  No evidence was led about the estate of the late Michael Alderson; in fact, the search certificates suggest that no steps have been taken to transmit HLDN 13 into the name of the administrator of his estate. 

8. It was further agreed between the parties that the Alderson Holding and the Gagudju Holdings, even though they are to be found within the boundaries of the Park, are not part of the Park.  When the Park was constituted the areas of these holdings were excluded from the proclaimed area.  Mr Wellings said in evidence that he was aware that the Border Store and the Alderson holding were two areas that had been excluded from the area of the Park; he explained that he had searched files and spoken to officers who, so he thought, might have known the answer, but without success:  he could not find out why these two parcels of land had been excluded.  That, of course, was a source of severe irritation to Mr Pocock.  Why had those holdings been excluded from the Park but his father’s had not?

9. Mr Wellings said that searches of the Border Store and the Alderson holdings (copies of which were exhibited to his affidavit) showed that all holdings are on Crown land for which no title has issued.  Mr Wellings explained that the Gagudju Association Inc operates its holding on behalf of its members, the majority of whom are traditional Aboriginal owners in the Park.  He also explained that the late Mr Michael Alderson had been a senior traditional owner of Aboriginal land within the Park.  In fact, Mr Wellings said that Mr Michael Alderson had been, at one time, the chairman of the Board of Management of the Park.

10. Mr Wellings said that he had participated in developing a management response to an application from the Pocock family for a lease over an area of land at West Alligator Head.  He explained that any management response, and any management decision, would have been made in accordance with the Plan of Management for the Park.  To date, there have been four Plans of Management and the last three of them have each contained provisions that would allow the Director, subject to some restraints, to issue leases for occupancy to those persons who were permanently resident in the Stage Two Area of the Park.

11. The first plan of management dealt only with Stage 1 of the Park.  Stage 2 was not declared until after the first plan of management had issued.  The second, third and fourth plans of management all relate to both Stage 1 and Stage 2.  All decisions concerning leases and licences have been guided by the views of the Board of Management for the Park, a statutory body of fourteen members, ten of whom are Aboriginal people who represent the traditional owners of Kakadu.

12. Mr Wellings was also aware of the presence of Mr and Mrs John Grice, Mr Dave Auhl and Ms Maureen Hunter in the Park.  They are persons who have been living within Stage Two without any formal tenure and are sometimes referred to as “squatters”.  He stated that they and Mr Fred Pocock had all made applications for some form of tenure so that they could carry on commercial activities within the Park.  Mr and Mrs Grice and Mr Auhl were favoured with advices that they would be offered an “occupancy licence with conditions” but, so Mr Wellings said, negotiations are currently suspended “pending determination of relevant land claims …”.  I take that to mean the Repeat Land Claim.  Mr Wellings, when asked about Ms Hunter, said that it was his understanding that her application for tenure having been rejected, she left the area.  He has not seen or heard of her for over ten years. 

13. The position concerning the Pococks was involved.  The following summary has been extracted, in part, from Mr Wellings affidavit and, in part, from items of correspondence in the agreed book of documents:

    (1)Sometime in 1987 Mr Fred Pocock applied for a special purpose lease for 25 hectares at West Alligator Head for residential purposes and for the establishment of a caravan park.

    (2)There were included in the agreed book of documents, copies of internal minutes of the ANPWS dated 28 July 1987 and 29 September 1987.  The subject matter of the minutes was a proposal as to how best to deal with people who were residents within the Park.  Mr Fred Pocock was mentioned as “a long-term resident of the Stage 2 area”.  The earlier of the two minutes contained the following passage:

    “This intention was to rationalize the tenure of individual squatters, either by providing leases for occupancy, or where such occupancy is inappropriate to the over-all aims of the Park, the residents are to be issued with a notice to quit.”

    The author wrote that the second Kakadu Plan of Management empowered the Director to issue leases to various persons and organisations, subject always to the approval of the traditional Aboriginal owners.

    (3)However, later in the same year, 1987, Mr Fred Pocock advised an officer of the Director that he did not believe that he would be able to proceed with the caravan park; he asked whether the Director would purchase his assets that were then on the site as he intended to move to Four Mile Hole.

    (4)Mr Wellings, who was then Park Manager, negotiated the purchase of those assets for $20,500.  This would have occurred sometime after July 1990, the date of a valuation upon which Mr Wellings relied.

    (5)Mr Fred Pocock was the subject of a further internal memorandum dated 28 September 1988.  At that stage, the Director was not intent on pursuing Mr Pocock.  The author wrote:

    “Unless it is the intention of the Service to challenge the validity of the Four Mile Hole lease, there seems to be little point in pursuing the matter of a residential lease for Mr Pocock.”

    (6)In a letter dated 1 November 1988, Mr D A Gillespie, the Assistant Director, Northern Operations, of ANPSW wrote Mr Auhl saying inter alia:

    “As you are aware, the current Kakadu Plan of Management makes provision for the formalisation of certain residents in the Stage 2 area of the Park, who had established a home in the area prior to the Park being declared.  The Plan of Management sets down certain categories of conditions which may be applied to such leases.”

    A letter to Ms Hunter dated the following day, 2 November, from Mr Gillespie, contained the same sentiments although, in her case, she was seeking a commercial lease.  Mr Wellings agreed that it would have been within the ability of his agency to write in similar terms to Mr Fred Pocock but he was unable to explain why such a letter was not written.

    (7)An undated application was made by members of the Pocock family (excluding Mr Fred Pocock) to the Director for an area of approximately 16 km² at West Alligator Head.  The application noted that the applicants had no traditional rights in the area as their mother’s country was elsewhere but that they understood, through the Northern Land Council (“the NLC”), that Aboriginal people with traditional rights to the land at West Alligator Head had no objection to their obtaining a lease over this area.

    (8)The NLC wrote the Director, by letter dated 14 November 1988, supporting the application by the Pocock family for a living area and a commercial tourism lease in the West Alligator Head area.

    (9)In a letter dated 6 March 1989, the Director wrote to the NLC advising that, in his view, the Pocock family proposal for a lease at West Alligator Head did not satisfy the criteria in the Plan of Management and that he was unable to agree to the application.

    (10)In a letter dated 21 September 1989, the NLC wrote to the Director advising that it was withdrawing its support for the family’s application on the ground that any lease that might be granted in that area should only be granted to those people with traditional rights to the land.  The NLC wrote:

    “Consultations, on site, with Aboriginal people with traditional ties to the land have revealed a clear desire that should any leases be granted in this area that they should be only to those with traditional rights in the land.”

    (11)Mr Pocock acknowledged, during the course of his cross-examination, that he was aware of the letter dated 21 September 1989 from the NLC to the Director in which the NLC advised that it was withdrawing its earlier support for the Pocock family’s proposal to acquire a living area and commercial lease over land in the West Alligator Head area.

    (12)On 16 February 1990, Mr L C Thomas, the Acting Assistant Director Northern Operations of ANPWS, wrote the NLC seeking the views of the traditional owners to the grant of residential leases to David Auhl, Maureen Hunter and Mr and Mrs John Grice.  The NLC did not reply until 2 September 1991 when it wrote that the traditional owners would prefer not to see a lease granted to Mr and Mrs Grice.  The NLC was firmer with respect to Mr Auhl.  It wrote:  “No lease should be granted”.  ANPWS duly informed Mr and Mrs Grice and Mr Auhl of the adverse reaction of the traditional owners but not until 31 May 1993.  In each letter the words used were:

    “I must now inform you that a lease will not be granted”

    According to Mr Wellings those words were chosen with care:  there still remained the possibility of some form of licence being available.  Each letter concluded with the words:

    “I would be pleased to meet you to discuss making arrangements for your current situation.”

    Mr Wellings understood that there were further discussions but they have been held up pending the resolution of the current land claim.

    Mr Pocock complained bitterly about those letters claiming that the failure of ANPWS to address the Pococks’ occupancy in like terms was an act of discrimination. I think, however, that Mr Wellings supplied a reasonable answer to that allegation when he said that Auhl, Hunter and the Grices had no tenure at all; they were “squatters” and it was they who had applied for leases.  On the other hand, according to Mr Wellings, Mr Fred Pocock was quite firm in his view that his miner’s right and Garden Area gave him security of tenure at Four Mile Hotel:  he had not made any like application for a lease

    (13)Mr Wellings said that he became aware sometime in 1993 and, so he believed, before the meeting in June 1993 that is referred to in par (14) below, that Mr Fred Pocock had transferred his interest in Four Mile Hotel to Mr Robert Pocock and that the Territory’s Department of Mines and Energy had purported to register that transfer.  He also said that Dr Press, who then held  Mr Welling’s present position, also knew of the transfer.  The acquisition of this knowledge led to the Australian Government Solicitor writing Mr Robert Pocock’s then solicitor by letter dated 21 May 1993.  This letter asserted that:

    “Purported annual renewals of Fred Pocock’s miner’s right by officials of the Northern Territory since 1 July 1978 have not been valid and he ceased to be the holder of the miner’s right on 22 July 1978, from which date the mining tenement is deemed to have been abandoned.  Even if the purported renewals were valid Fred Pocock has long ceased to occupy the area for the purpose for which it was granted making it liable to forfeiture.”

    However, the letter went on to offer Mr Fred Pocock a licence to occupy Four Mile Hole for the term of his life.  Towards the end of the letter the author made it clear:

    “The Director is not prepared however to grant such a licence to any other person.  In the absence of a licence agreement with Fred Pocock the Director will take such action as he is advised is appropriate and necessary to take possession of Four Mile Hole.”

    (14)Mr Fred Pocock sought a lease of, and hunting rights over, Four Mile Hole.  On 2 June 1993, at a meeting of the Board of Management of Kakadu National Park, it was resolved that there be discussions with Mr Fred Pocock concerning his request to remain at Four Mile Hole.

    (15)Mr Pocock and his father attended a meeting with representatives from the NLC and some Aboriginals who were said to be traditional owners.  In an internal memorandum of the NLC, the subject of the meeting was identified as:

    “Four Mile Hole lease and hunting rights application meeting of traditional owners Tuesday July 13 1993.”

    The report of the meeting commenced with the following statement:

    “Keith Taylor opened the meeting and explained the purpose of the meeting.  Keith explained that the Pococks had addressed the Kakadu Board of Management seeking to clarify their rights of residence and rights to hunt in the 4 Mile Hole area.  Keith explained that the Kakadu Board of Management had determined that as Fred Pocock was the holder of a Northern Territory Government garden lease they were prepared to discuss formalization of his rights but not to extend those to the family.”

    It would seem that Keith Taylor and the author of the memorandum were both officers of the NLC.  Initially, the meeting proceeded in the absence of Mr Pocock and his father.  After discussions had concluded however, they were invited to join the meeting.  The report of the meeting contained the following information:

    “Keith then explained that the traditional owners had expressed the following view:

    Fred Pocock could remain as long as he wants; that the lease should not be transferable to Fred Pococks descendants;

    That limited hunting rights should be extended to some of Fred’s family and that those rights should be determined in consultations with ANPWS and traditional owners.

    Robert Pocock then responded that he and his family were not going.  Robert said that he and his family had been there longer than everyone.  Robert said that you (Keith Taylor), Tony Press, and Peter Wellings are the cause of all this.  Your (Keith Taylor) relationship with Joy Maddison is a conflict of interest.  We have been there for more than 40 years and will stay there for as long as we like.  We built it up.”

    This report was put to Mr Pocock during the course of his cross-examination.  He remembered the meeting and he remembered some – but not all – of the subject matters that were recorded.  He did not, however, suggest that the report was inaccurate and I am prepared to accept its contents.  It shows that there was animosity as far back as 1993 and that Mr Pocock’s animosity was then directed as much to officers of the NLC and the traditional owners as it was to the Director and his officers.

    (16)A further meeting of the Board of Management of Kakadu National Park was held on 1 September 1993 at which Mr Wellings and members of the Pocock family were present.  The purpose of this meeting was to seek the endorsement of the Aboriginal members of the Board for the Pococks’ continued occupation of Four Mile Hole.  The Board resolved that there was no objection to Mr Fred Pocock remaining in residence at Four Mile Hole for as long as he liked but he should not be able to transfer any interest in Four Mile Hole to any other family member.

    (17)The Board of Management of Kakadu National Park met on 5 December 1995, Mr Fred Pocock having died in the proceeding month; Mr Wellings was present at that meeting.  It was resolved that a letter be sent to the Pococks requiring them to vacate Four Mile Hole.

    (18)In 1996 Mr Pocock commenced these proceedings and obtained an injunction restraining the Director from taking any action for possession of Four Mile Hole pending the outcome of these proceedings.

1. Mr Wellings said that it was his decision to withdraw the respondent’s claim in the current proceedings that Mr Pocock give up possession of Four Mile Hole.  He also made it clear that his agency does not have any present plans to seek orders for possession of the Alderson land, the Border Store, or the land that is occupied by Mr and Mrs Grice and by Mr Auhl.  In each case the Director is awaiting the final resolution of the Repeat Land Claim.

2. Mr Pocock sought somehow, to use the history of his family’s dealings with officers of the Director to pursue his claim of discrimination.  I cannot, however, see how it could assist him:  nor do I consider the fact that certain public companies are permitted to conduct mining activities within the Park to be an act of discrimination against Mr Pocock.  Mr Pocock quite clearly has the feeling that he has been singled out by the Director.  If that is true (and I make no finding to that effect), it may have been because Mr Pocock has been more determined than others to pursue his cause.  After all, he instigated these present proceedings against the Director.

3. During the course of his final submissions, Mr Pocock expressed some concern about aspects of Mr Welling’s evidence.  He claimed that there were areas which he disputed but, because of issues of confidentiality, he was unable to express his concerns more clearly.  If his concern related to the statement that Mr Wellings made to the effect that the Director’s present intention was to take no action against Mr Pocock for possession, then I regard that as a unilateral statement that did not require any agreement or acknowledgement from Mr Pocock.  If, however, his concerns relate to what was said, or might have been said, by traditional owners at a meeting, then I must make it clear that my findings, as expressed in these reasons, have been mostly influenced by the contents of the documents that have been tendered in evidence, coupled with the limited concessions that Mr Pocock made during the course of the cross examination.  Mr Welling’s oral evidence did not add materially to those sources.

4. The proper answer to this question of discrimination, however, is that it must fail because of lack of sufficient evidence about the other people who are now or who have, in the past, occupied areas of land in the Park.  There is not sufficient evidence before the Court about their personal circumstances and, as a result, it is not possible to draw comparisons between them and the Pococks.  In rejecting Mr Pocock’s complaints that he has been the victim of discrimination by the Director, I have been strongly influenced by the fact that the traditional Aboriginal owners of the area have not favoured the Pocock family and their occupation of Four Mile Hole.

5. The importance of the role of the traditional owners is apparent from a consideration of the legislation. Sub-section 11(1) of the National Parks Act requires the Director to prepare a plan of management in respect of a Park as soon as practicable after the Park has been declared. Sub-section 11(8) identifies the objects to which regard shall be had in the preparation of any plan of management. There are several, but in respect of a Park within the Alligator Rivers Region, the objects include:

   “the interests of the traditional Aboriginal owners of, and of other Aboriginals interested in, so much of the land within the park or reserve as is within the region.”

6. Section 11 contains provisions that allow for the Minister to accept the plan of management but s12 requires the Minister to cause it to be laid before both Houses of Parliament.  Either House may, within 20 setting days, pass a resolution disallowing the plan of management.  When a plan of management comes into force, s14 of the Act requires the Director “to perform his functions and exercise his powers” in relation to the Park in accordance with that plan “and not otherwise”.  That is a most significant provision in this case because the second and third plans of management required the consent of the traditional owners to any leases to those persons who had been permanently resident in the Stage 2 area of Kakadu prior to proclamation.  (The fourth plan of management did not come into force until 1999 and its contents are therefore not relevant.)  Even if it be assumed that Mr Pocock might have had a cause of action in the general jurisdiction of the Court on the grounds of discrimination, I am satisfied that the evidence could not sustain a finding to that effect against the Director.

7. In the final analysis, Mr Pocock’s application must be dismissed and his injunction must be discharged.  There will be orders accordingly.  There remains, however, the question of the Director’s cross-claim.  As to that, and bearing in mind that the Director no longer seeks an order for possession of Four Mile Hole, I think it best that the Director file and serve his submissions as to the order or orders that should be made on the cross-claims.  The Director can take that opportunity, if he is so advised, to include any submissions that he would wish to make on the subject of costs.  Those submissions should be filed and served within 14 days of today’s date and a copy is to be served on the solicitors for the Northern Territory.  Should Mr Pocock or the Territory wish to file and serve answering submissions they should do so within 14 days of the service of the Director’s submissions on them.  Any party, including the Territory, is at liberty, at any time after the expiration of 28 days from the date hereof, to list this matter for further consideration.

I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:
Dated:             5 June 2001

The Applicant appeared in person:
Counsel for the Respondent:	Dr T Renwick
Solicitor for the Respondent:	Australian Government Solicitor
Counsel for the Northern Territory of Australia:	Mr N Henwood
Date of Hearing:	27-30 November 2000
Written submissions filed:	Northern Territory:      5 January 2001 Applicant:  31 January & 16 February 2001 Respondent:                7 February 2001
Date of Judgment:	5 June 2001