Risk v Northern Territory of Australia

[2006] FCA 404

FEDERAL COURT OF AUSTRALIA

WILLIAM RISK, HELEN SECRETARY & PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE and KEVIN LANCE QUALL ON BEHALF OF THE DANGGALABA & KULUMBIRINGIN PEOPLE

v

NORTHERN TERRITORY OF AUSTRALIA and DARWIN CITY COUNCIL and AMATEUR FISHERMEN’S ASSOCIATION OF THE NORTHERN TERRITORY

NTD 6033 of 2001

summary

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

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

Risk v Northern Territory of Australia [2006] FCA 404

1. These proceedings are a consolidation of native title determination applications under the Native Title Act 1993 (Cth) (the NT Act), filed by three different groups of applicants in relation to land and waters in and around Darwin in the Northern Territory.

2. The claim area covers parts of metropolitan Darwin and its surrounds on the Darwin Peninsula. It comprises many sections of land and waters within an overall area of about 30 kilometres square. Generally, the claim area includes only those parts of the land where there has not been residential or commercial development. It encompasses mostly areas of Crown land as well as some land held by the Darwin City Council and the Palmerston City Council.

3. There were three different claimant groups within the consolidated proceedings: the Larrakia applicants; the Quall applicants; and the Roman applicants. The Roman applicants discontinued their claim during the course of the hearing. That left the Larrakia applications on behalf of the ‘Larrakia People’ and the Quall applications on behalf of the Danggalaba Clan, and the Kulumbiringin Clan.  Mr Quall claimed that the Danggalaba Clan was the holder of native title rights and interests over the claim area, rather than the larger Larrakia claim group, because that clan alone had continued to observe the traditional laws and customs of the Aboriginal society which existed at sovereignty.

4. All of the individuals named in the Quall applications were also named as part of the Larrakia People. In my reasons and in this summary I use the term ‘Larrakia people’ as encompassing both the Larrakia applicants and the Quall applicants.

5. The hearing took place over 68 days at the Supreme Court in Darwin and at other places in the claim area. The evidence, particularly the documentary evidence, was very extensive. I commend all parties for their conduct of the hearing, their comprehensive and focused submissions, and their co-operation in the timetabling of witnesses and other procedural issues. All parties should also be appreciative of the thorough and careful work done on their behalf by their legal representatives to ensure their cases were fully and properly presented, and the contentions in support of them effectively argued.

6. Three broad issues fall to be determined on any application for determination of native title, including this application. Firstly, whether the Larrakia people have established that they were possessed of native title rights and interests in the claim area as defined in s 223(1) of the NT Act; secondly, if such rights do exist, the detailed nature of those rights; and thirdly, whether such rights have been extinguished, either at common law or by operation of the provisions of the NT Act.

7. In this matter each of those three issues was vigorously contested by the main respondents, the Northern Territory and the Darwin City Council.

8. The first step, the existence of native title rights and interests under s 223(1) of the NT Act, required the Larrakia people to show:

1. that they are a society united in and by their acknowledgement and observance of a body of accepted laws and customs;

2. that the present day body of accepted laws and customs in essence is the same body of laws and customs acknowledged and observed by the ancestors of members of the Larrakia people adapted to modern circumstances; and

3. that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty in 1825, when the area of the then colony of New South Wales was extended westwards to a longitudinal line west of the Darwin area, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs.

That was all decided by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.

9. I have found that, at sovereignty, there was a society of indigenous persons who had rights and interests possessed under traditional laws and customs, and giving them a connection to the land and waters of the claim area. I have also found that that society continued to exist to European settlement from about 1869, and continued to exist into the 20^th Century, and that it continued to enjoy rights and interests under the same or substantially similar traditional laws and customs as those which existed at sovereignty. I have also found that the society was the Larrakia people, and not some different indigenous group.

10. That is a step along the way. As explained, s 223(1) of the NT Act also requires that the rights and interests in land or waters under traditional laws and customs are still possessed under a system of rules that has had a continued existence and vitality since sovereignty. ‘If that normative system has not existed throughout that period the rights and interests which owe their existence to that system will have ceased to exist’: Yorta Yorta at [47]. In that event, the current rights and interests will not flow from traditional laws and customs.

11. The Larrakia community of today is a vibrant, dynamic society which embraces its history and traditions. This group has shown its strength as a community, able to re-animate its traditions and customs, following a period of integration of Aboriginal people into non-Aboriginal society. There is, and has been, a continuous recognition in the Darwin area of certain persons as Larrakia, both by self-identification and by community recognition. Many members of the Larrakia community gave evidence during the course of the hearing. I was impressed by the genuineness and honesty of all of those witnesses.

12. The evidence shows that a combination of circumstances has, in various ways, interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the 20^th Century in a way that has affected their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty. The settlement of Darwin from 1869, the influx of other Aboriginal groups into the claim area, the attempted assimilation of Aboriginal people into the European community and the consequences of the implementation of those attempts and other government policies (however one might judge their correctness), led to the reduction of the Larrakia population, the dispersal of many Larrakia people from the claim area, and to a significant breakdown in Larrakia people’s observance and acknowledgement of traditional laws and customs.

13. I have found that the effect of those circumstances is that the current Larrakia society, with its laws and customs, has not carried forward the traditional laws and customs of the Larrakia people so as to support the conclusion that those traditional laws and customs have had a continued existence and vitality since sovereignty. Some of the evidence reveals a correspondence between current and traditional laws and customs. But the oral evidence also reveals significant inconsistencies between members of the present applicants about what their laws and customs are, and the extent to which they are practiced. It reveals in many instances the adoption of knowledge of traditional laws and customs from those learned during the hearing of the Kenbi land claim concerning the Cox Peninsula and then later from other research, as well as by direct inquiry of elderly Larrakia and non-Larrakia people. The oral evidence discloses a level of generality of knowledge which is not consistent with the acquisition of knowledge in accordance with the traditional laws and customs of the Larrakia people. Ultimately, I have concluded that during much of the 20^th century, the evidence does not show the passing on of knowledge of the traditional laws and customs from generation to generation in accordance with those laws and customs.

14. I have therefore reached the conclusion that the present society comprising the Larrakia people does not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. That is because I do not find that their current laws and customs are ‘traditional’ in the sense required by s 223(1) and as explained by the High Court in Yorta Yorta.

15. The present laws and customs of the Larrakia people reflect a sincere and intense desire to re-establish those traditional laws and customs adapted to the modern context.  They are the consequence of significant efforts on the part of many to achieve that result. It is an entirely proper objective.  It is apparent that the process is enriching the lives of the Larrakia people, and of the Darwin community.  That, however, is not a sufficient factual foundation for making a determination of native title rights and interests in this proceeding.

16. In those circumstances, I must dismiss the application.

Darwin

13 April 2006

FEDERAL COURT OF AUSTRALIA

Risk v Northern Territory of Australia [2006] FCA 404

NATIVE TITLE – application for determination of native title over various sites in and around Darwin by the Larrakia people – society of Larrakia people with traditional laws and customs existed at sovereignty in 1825 – same society existed at European settlement from 1869 – subsequent disruption of Larrakia society and its practice of traditional laws and customs caused by development of settlement in Darwin, influx of other Aboriginal groups into the area, policy of assimilation of indigenous peoples into white society, other governmental policies, removal of people including indigenous people from Darwin during World War II – whether current society of Larrakia people continues to enjoy native title rights and interests under the traditional laws and customs – whether traditional system of laws and customs has continued uninterrupted and with vitality since sovereignty

NATIVE TITLE – consideration of means of proof of authorisation of application in accordance with traditional laws and customs of claimant groups

NATIVE TITLE – consideration of admissibility and utility of anthropological evidence

NATIVE TITLE – evidence and findings in Report concerning related land by Aboriginal Land Rights Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – consideration of circumstances in which the evidence and/or findings may be used under s 86 of the Native Title Act 1993

NATIVE TITLE – EXTINGUISHMENT – consideration of ss 47A and 47B of Native Title Act 1993 – whether the sections apply at all to applications made prior to 30 September 1998 when those sections were enacted – consideration of ‘the area’ – consideration of occupation sufficient to satisfy those sections – consideration of what constitutes a ‘prior interest’ – whether s 47B can apply within a proclaimed township by reason of the proclamation

NATIVE TITLE – EXTINGUISHMENT – consideration of s 23B(9C) of Native Title Act 1993

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Evidence Act 1995 (Cth)
Racial Discrimination Act 1975 (Cth)
Native Title Amendment Act 1998 (Cth)
Aboriginals Ordinance 1918 (NT)
Welfare Ordinance 1953 (NT)
Native Title Bill 1993 (Cth)
Validation (Native Title) Act (NT)
Racial Discrimination Act 1975 (Cth)
Local Government Ordinance 1954 (NT)
Local Government Act 1993 (NT)
Acts Interpretation Act 1901 (Cth)

Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Western Australia v Ward (2002) 213 CLR 1 followed
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 applied
Commonwealth v Yarmirr (2001) 208 CLR 1 followed
Quall v Risk [2001] FCA 378 followed
Dieri People v State of South Australia (2003) 127 FCR 364 referred to
Edward Landers v State of South Australia (2003) 128 FCR 495 referred to
Daniel for the Ngaluma People v Western Australia [1999] FCA 686 cited
Eora People – Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 cited
Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 cited
Bodney v Bropho (2004) 140 FCR 77 discussed
Daniel v Western Australia (2002) 194 ALR 278 discussed
Holborow v State of Western Australia [2002] FCA 1428 cited
Bodney v State of Western Australia [2003] FCA 890 referred to
Bodney v Bropho (2004) 149 FCR 77 discussed
Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 considered
Branfield v Wharton [2004] FCAFC 138 referred to
Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 referred to
Strickland v Native Title Registrar (1999) 168 ALR 242 cited
Western Australia v Strickland (2000) 99 FCR 33 cited
Quandamooka People (No 1) v State of Queensland [2002] FCA 259 cited
Duren v Kiama Council [2001] FCA 1363 cited
Hayes v Northern Territory (1999) 97 FCR 32 referred to
Daniel v State of Western Australia [2003] FCA 666 considered
Allied Interstate (Qld) Pty Limited v Barnes (1968) 118 CLR 581 referred to
The Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory (2000) 104 FCR 380 followed
Northern Land Council v Olney (1992) 34 FCR 470 referred to
Phillips v State of Western Australia [2000] FCA 1274 discussed
Daniel v State of Western Australia [2000] FCA 1356 cited
Neowarra v State of Western Australia (No 1) (2003) 134 FCR 208 followed
Daniel v State of Western Australia (2000) 178 ALR 542 referred to
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 2) (2003) FCA 893 discussed
Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 discussed
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 referred to
Ward v State of Western Australia (1998) 159 ALR 483 referred to
The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 referred to
R v Perry (No 4) (1981) 28 SASR 119 discussed
Quick v Stoland Pty Ltd (1998) 87 FCR 371 discussed
Neowarra v State of Western Australia [2003] FCA 1402 followed
Western Australia v Ward (2000) 99 FCR 316 considered
De Rose v South Australia (No 2) (2005) 145 FCR 290 referred to
Gerhardy v Brown (1985) 159 CLR 70 cited
Rubibi Community v Western Australia (2001) 112 FCR 409 followed
Passi on behalf of the Meriam People v Queensland [2001] FCA 697 followed
Maxwell v Murphy (1957) 96 CLR 261 cited
Mathieson v Burton (1971) 124 CLR 1 cited
State of Western Australia v Strickland (2000) 99 FCR 33 referred to
Erubam Le (Darnley Islanders) #1 v State of Queensland (2003) 134 FCR 155 referred to
Northern Territory of Australia v Alyawarr, Kaytetye, Waranungu, Wakaya Native Title Claim Group [2005] FCAFC 135 referred to
Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178 cited
Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 referred to
Gumana v Northern Territory of Australia (2005) 141 FCR 457 referred to

WILLIAM RISK, HELEN SECRETARY & PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE and KEVIN LANCE QUALL ON BEHALF OF THE DANGGALABA & KULUMBIRINGIN PEOPLE v NORTHERN TERRITORY OF AUSTRALIA and DARWIN CITY COUNCIL and AMATEUR FISHERMEN’S ASSOCIATION OF THE NORTHERN TERRITORY & OTHERS

NTD 6033 of 2001

JUSTICE MANSFIELD
13 APRIL 2006
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 6033 OF 2001

BETWEEN:

WILLIAM RISK, HELEN SECRETARY & PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE
FIRST APPLICANTS

KEVIN LANCE QUALL ON BEHALF OF THE DANGGALABA & KULUMBIRINGIN PEOPLE
SECOND APPLICANTS

AND:

NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

DARWIN CITY COUNCIL
FIFTH RESPONDENT

AMATEUR FISHERMEN’S ASSOCIATION OF THE NORTHERN TERRITORY
SIXTH RESPONDENT

DEFENCE HOUSING AUTHORITY, PALMERSTON CITY COUNCIL, ANZ BANKING CORPORATION LTD, CONSERVATION LAND COUNCIL, CSR LIMITED, CSR READYMIX (AUSTRALIA) PTY LTD, DARWIN MODEL FLYING CLUB, DELFIN CHASE PTY LTD, DIAMOND LEISURE PTY LTD, FERNBANK PTY LTD, GIUSEPPE MAUGERI, NORTHERN TERRITORY CHRISTIAN SCHOOLS ASSOCIATION, NT GAS DISTRIBUTION PTY LTD, NT GAS PTY LTD & TELSTRA CORPORATION LIMITED
OTHER RESPONDENTS

JUDGE:

MANSFIELD J

DATE OF ORDER:

13 APRIL 2006

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:

1.        The application be dismissed.

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	NTD 6033 OF 2001

BETWEEN:

WILLIAM RISK, HELEN SECRETARY & PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE
FIRST APPLICANTS

KEVIN LANCE QUALL ON BEHALF OF THE DANGGALABA AND KULUMBIRINGIN PEOPLE
SECOND APPLICANTS

AND:

NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

DARWIN CITY COUNCIL
FIFTH RESPONDENT

AMATEUR FISHERMEN’S ASSOCIATION OF THE NORTHERN TERRITORY
SIXTH RESPONDENT

DEFENCE HOUSING AUTHORITY, PALMERSTON CITY COUNCIL, ANZ BANKING CORPORATION LTD, CONSERVATION LAND COUNCIL, CSR LIMITED, CSR READYMIX (AUSTRALIA) PTY LTD, DARWIN MODEL FLYING CLUB, DELFIN CHASE PTY LTD, DIAMOND LEISURE PTY LTD, FERNBANK PTY LTD, GIUSEPPE MAUGERI, NORTHERN TERRITORY CHRISTIAN SCHOOLS ASSOCIATION, NT GAS DISTRIBUTION PTY LTD, NT GAS PTY LTD & TELSTRA CORPORATION LIMITED
OTHER RESPONDENTS

JUDGE:

MANSFIELD J

DATE OF ORDER:

13 APRIL 2006

WHERE MADE:

DARWIN

TABLE OF CONTENTS

Par.
NATURE OF THE CLAIM	1
The Larrakia Applications	8
The Quall Applications	10
The Roman Application	12
Description of Claim Area	15
The Determination Sought	26
THE HEARING	31
THE LAW IN RELATION TO NATIVE TITLE	44
AUTHORISATION UNDER S 61 OF THE NATIVE TITLE ACT	63
The Authorisation Process	80
Section 251B(a): decision-making under individual laws and customs	87
CONSIDERATION OF THE EVIDENCE	95
The Period 1825 – c 1910	98
Archaeological Evidence	101
The 19th Century	107
(i)      The Ethnographic Evidence	109
(ii)      The Historical Evidence	120
(iii)     The Linguistic Evidence	139
(iv)     The Records Relating to the latter part of the 19th Century	146
(v)      Location and Population of the Larrakia Tribe	194
Cultural Practices of the Larrakia People during the early European Settlement Period	197
Conclusions	230
The Period 1910 – WW II	240
The Aborigines Act 1910	241
Establishment of Kahlin Compound at Cullen Bay	247
Cultural Practices of the Larrakia People between 1910 and WW II	300
The Period WW II – 1970	342
Larrakia Land Claims	373
Kulaluk Land Claim	375
Gundal Land Claim	404
Land Claim Over Dariba Nunggalinya	421
The Kenbi Claim	427
The Anthropological Evidence	444
The Form of the Anthropological Evidence	446
The Content of the Anthropological Evidence	475
(i)   Kinship	475
(ii)  Family Groups/Clans	488
Genealogies	495
(i)   The Blanchie Family	501
(ii)  The McLennan Family	506
(iii)  The Cubillo Family	508
(iv)  The Frith Family	521
(v)  The Djalamin and King Tommy Family	523
CURRENT LARRAKIA SOCIETY	527
Cultural Organisation and Practices	533
Kinship	533
Mourning/Funerary Rites	543
Birth/Infant Practices	555
Family Groups/Clans	556
Membership of the Larrakia Group	560
Economy and Resource Use	571
Hunting, Fishing and Gathering Resources	571
Sharing, Conserving and Not Wasting Resources	578
Restrictions on Consumption of Certain Foods	582
Knowledge about Location and use of Bush Foods, Crafts and Medicines	586
Methods for hunting and preparation of Food	594
Spirituality	599
Dreamings	599
(i)   Place Dreamings	602
(ii)  Personal Dreamings	605
(iii) Family/Clan Dreamings/Totems	613
Mythical Malevolent Being	625
Ancestors	629
Site Specific Ceremonies and Rites	632
(i)   ‘Calling out’ / ‘Singing out’ to Spirits	633
(ii)  Washing in Salt Water – Giving Sweat to     Country	642
Giving Offerings to Country	646
Involvement in Ceremony	648
Knowledge about Sacred Sites	667
Dances	674
Songs	676
Other Aspects	678
Social Structure	679
Elders/the ‘Larrakia Nation’	680
Transmission of Knowledge	700
Language	729
‘Country’	732
Extent of Larrakia Country	732
Feeling Good About Country	736
Looking After Sites	738
THE SECOND APPLICANTS	794
CONCLUSIONS REGARDING S 223(1) OF THE NATIVE TITLE ACT	802
EXTINGUISHMENT	844
The Principles of Extinguishment	851
The Evidence	864
Section 44H of the NT Act	870
Section 47A and Section 47B	873
Section 47A: Whether the Tenure Attracts its Operation	875
The Area	883
Occupation	888
Whether Section 47A and Section 47B apply to pre-30 September 1998 Applications	894
Prior Interest	904
Whether Section 47B can apply to Land within the Municipality of Darwin	907
Section 23B(9C)	920
General	928
The Other Respondents	930
ORDERS	938

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 6033 OF 2001

BETWEEN:

WILLIAM RISK, HELEN SECRETARY & PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE
FIRST APPLICANTS

KEVIN LANCE QUALL ON BEHALF OF THE DANGGALABA AND KULUMBIRINGIN PEOPLE
SECOND APPLICANTS

AND:

NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

DARWIN CITY COUNCIL
FIFTH RESPONDENT

AMATEUR FISHERMEN’S ASSOCIATION OF THE NORTHERN TERRITORY
SIXTH RESPONDENT

DEFENCE HOUSING AUTHORITY, PALMERSTON CITY COUNCIL, ANZ BANKING CORPORATION LTD, CONSERVATION LAND COUNCIL, CSR LIMITED, CSR READYMIX (AUSTRALIA) PTY LTD, DARWIN MODEL FLYING CLUB, DELFIN CHASE PTY LTD, DIAMOND LEISURE PTY LTD, FERNBANK PTY LTD, GIUSEPPE MAUGERI, NORTHERN TERRITORY CHRISTIAN SCHOOLS ASSOCIATION, NT GAS DISTRIBUTION PTY LTD, NT GAS PTY LTD & TELSTRA CORPORATION LIMITED
OTHER RESPONDENTS

JUDGE:	MANSFIELD J
DATE:	13 APRIL 2006
PLACE:	DARWIN

REASONS FOR JUDGMENT

Nature of the claim

1. These proceedings, D6033 of 2001, are a consolidation of native title determination applications under the Native Title Act 1993 (Cth) (the NT Act), filed by three different groups of applicants in relation to land and waters in and around Darwin in the Northern Territory. The applications were filed between 1994 and 2001.

2. There were three different groups of applicants encompassed within those 19 applications – the ‘Larrakia applicants’ (the first applicants), the ‘Quall applicants’ (the second applicants) and the ‘Roman applicants’ (the third applicants).  The Larrakia applications were made by William Maxwell Risk (DG6007/1998; DG6017/1998; D6007/1999; D6018/1999 and D6026/2001), a deceased person Prince of Wales, Helen Secretary and Bill Risk (who is the same person as William Maxwell Risk) (DG6040 of 1998) and by Pauline Baban (D6001/1999).  The Quall applications were made by Kevin Lance (‘Tibby’) Quall (DG6010/1998; DG6011/1998; DG6012/1998; DG6013/1998; DG6014/1998; DG6015/1998; DG6018/1998; DG6019/1998; DG6022/1998; DG6026/1998; DG6029/1998).  The sole Roman application, D6007/2000, was made by Susan Linda Roman on behalf of the Yirra Bandoo Aboriginal Corporation. 

3. The consolidated proceedings arose from orders made by a Registrar of the Court on 8 May 2001.  Those orders divided application DG6017/1998 (which covered the largest area) into Parts A and B.  Part A generally concerned the more urbanised areas in that claim.  Part A was to be considered before Part B.  The orders then also consolidated Part A of DG6017/1998 with the 18 other applications for the determination of native title into one action – DG6033/2001.  The claim areas of the 18 other applications largely, but not entirely, overlapped with Part A of DG6017/1998.  The consolidating orders confined the consolidation to those parts of the other 18 claim areas which overlapped with Part A of DG6017/1998.

4. In the event, the hearing proceeded in respect of areas of land and waters in and around Darwin which did not precisely correspond with those areas of land the subject of the consolidated proceeding.  The hearing proceeded concerning 216 areas of land and waters described in the Consolidated Proceeding Claim Area List (the Claim Area List) prepared on behalf of the Northern Territory of Australia (the Territory) and the evidence related to those areas.  Each area of land and waters was given a ‘C’ designation and number.  That process was apparently adopted after consultation between the parties.

5. In the circumstances, I invited the parties to make submissions as to whether I should alter the consolidation order made on 8 May 2001 to reflect more accurately the matters which were addressed in the evidence.  No party contended that I should not do so.  Consequently, on 31 January 2005 the Court ordered that the Orders of a Registrar of the Court made 8 May 2001 be varied by the deletion of Order 2 and the insertion of the following in its place.:

   ‘2.Pursuant to section 67 of the Native Title Act 1993 and Order 29 rule 5 of the Federal Court Rules:

   (i)Part A of application DG6017 of 1998; and

   (ii)Applications DG6007 of 1998, DG6010 of 1998, DG6011 of 1998, DG6012 of 1998, DG6013 of 1998, DG6014 of 1998, DG6015 of 1998, DG6018 of 1998, DG6019 of 1998, DG6022 of 1998, DG6026 of 1998, DG6029 of 1998, DG6040 of 1998, D6001 of 1999, D6007 of 1999, D6018 of 1999, D6007 of 2000, D6026 of 2001 to the extent that the areas subject to the applications described in the attached Consolidated Proceeding Claim Area List;

   be consolidated and the actions conducted as one (“the consolidated proceedings”).’

   CONSOLIDATED PROCEEDING CLAIM AREA LIST

CLAIM No.	LAND / WATERS DESCRIPTION	D6017/98A	Other Federal Court No.
C0001	Lot 9458 Nightcliff – Lee Point - DC96/6, DC96/7A	Ö	6015/98
C0002	Lot 9368 Nightcliff – Lee Point - DC96/6, DC96/7A	Ö	6015/98
C0004	Lot 9369 Nightcliff – Buffalo Creek - DC96/6, DC96/7A	Ö	6015/98
C0005	Lot 9315 Nightcliff – Behind Lee Pt Caravan Park - DC96/7A	Ö
C0006	Lot 9370 Nightcliff – Near RAAF Transmitter - DC96/6,DC96/7A	Ö	6015/98
C0008	Lot 9212 Nightcliff – Tracy Village - DC96/3, DC96/7A	Ö	6012/98
C0010	Lot 9375 Nightcliff – Casuarina Coastal Reserve - DC96/7A	Ö
C0011	Lot 9075 Nightcliff – Rapid Creek Fun Park - DC96/7A	Ö
C0012	Lot 9330 Nightcliff – Rapid Creek Water Gardens - DC96/7A	Ö
C0013	Lot 9353 Nightcliff - DCC Freehold Rapid Creek - DC96/7A	Ö
C0014	Coastal Area East of Nightcliff Boat Ramp - DC96/7A	Ö
C0015	Lot 8695 Nightcliff - DCC Freehold Coastal Park - DC96/7A	Ö
C0016	Lot 8694 Nightcliff - DCC Freehold Coastal Park - DC96/7A	Ö
C0017	Nightcliff Boat Ramp - DC96/7A	Ö
C0018	Coastal Area South of Nightcliff Boat Ramp - DC96/7A	Ö
C0019	Lot 4543 Nightcliff – Dick Ward Drive - DC96/7A	Ö
C0020	Lot 4815 Darwin – Karu Park Bagot Road - DC96/6, DC96/7A	Ö	6015/98
C0021	Lot 5182 Darwin - Kulaluk - DC97/3, DC96/7A, DC98/11	6022/98 6040/98
C0022	Lot 4806 Darwin – Bagot Community Bagot Rd - DC98/1	6029/98
C0023	Lot 5775 Darwin – East Point Reserve - DC96/7A	Ö
C0024	Lot 5984 Darwin – East Point Foreshore - DC96/6, DC96/7A	Ö	6015/98
C0025	Mangroves North of East Point Reserve - DC96/7A	Ö
C0026	Lot 5983 Darwin – Colivas Road East Point - DC96/6, DC96/7A	Ö	6015/98
C0027	Lot 5976 Darwin – Ludmilla Ck - DC96/6, DC96/7A & DC99/6	Ö	6015/98, 6007/99
C0028	Island at Mouth of Ludmilla Creek - DC96/7A	Ö
C0029	Lot 3729 Darwin – Fannie Bay Oval - DC96/7A	Ö
C0030	Lot 5794 Darwin – Ludmilla Treatment Plant - DC96/6,DC96/7A	Ö	6015/98
C0031	Lot 6001 Darwin – Ludmilla Creek Mangroves - DC96/6, DC96/7A	Ö	6015/98
C0032	Lot 5646 Darwin – East of Dick Ward Drive - DC96/6, DC96/7A	Ö	6015/98
C0033	Lot 5632 Darwin – Adjoining Nemarluk Drive - DC96/6, DC96/7A	Ö	6015/98
C0034	Lot 4816 Darwin – West of Richardson Park - DC96/6 & 96/7A	Ö	6015/98
C0035	Lot 5791 Darwin – West of Richardson Park - DC96/6, DC96/7A	Ö	6015/98
C0036	Lot 3725 Darwin – West of Richardson Park - DC96/6, DC96/7A	Ö	6015/98
C0037	Lot 5790 Darwin – West of Richardson Park - DC96/6, DC96/7A	Ö	6015/98
C0038	Lot 5789 Darwin – West of Richardson Park - DC96/6, DC96/7A	Ö	6015/98
C0039	Lot 3724 Darwin – West of Richardson Park - DC96/6, DC96/7A	Ö	6015/98
C0040	Former Lot 6559 Darwin – Bagot Rd/Stuart Hwy DC96/6, DC96/7A	Ö	6015/98
C0041	Lot 5183 Darwin – East Point Road/George Cres - DC96/6	6015/98
C0042	Lot 5184 Darwin – East Point Road/George Cres - DC96/6	6015/98
C0043	Lot 5975 Darwin – Fannie Bay Foreshore - DC96/6, DC96/7A	Ö	6015/98
C0044	Vesteys Beach Foreshore - DC96/7A	Ö
C0045	Lot 5764 Darwin – Vesteys Beach Lake - DC96/7A	Ö
C0046	Lot 5218 Darwin – Conacher Street - DC96/3, DC96/7A	Ö	6012/98
C0047	Coastal Area at Bullocky Point - DC96/7A	Ö
C0048	Mindil Beach Foreshore - DC96/1 & DC96/7A	Ö	6010/98 6018/99
C0049	Lot 5772 Darwin – Mindil Beach Park DCC Freehold - DC96/7A	Ö
C0050	Lot 5994 Darwin – Burnett Place to Casino - DC96/1, DC96/7A	Ö	6010/98 6018/99
C0051	Lot 4818 Darwin – Pawa Substation at Mindil Beach - DC96/1	6010/98
C0052	Lot 5180 Darwin – Flagstaff House Myilly Pt - DC96/1, DC96/7A	Ö	6010/98
C0053	Lot 5690 Darwin – Former Gardens Park Hotel Site - DC96/7A	Ö
C0054	Lot 5686 Darwin – DCC Freehold at Doctors Gully - DC96/7A	Ö
C0055	Lot 5706 Darwin – Bicentennial Park - DC96/7A	Ö
C0056	Lameroo Beach Foreshore - DC96/7A	Ö
C0057	Lot 5225 Darwin – Old Stokes Hill Powerhouse Site - DC96/7A	Ö
C0058	Lot 5619 Darwin - OL 3243 One Mile Dam Area - DC96/8	6018/98
C0059	Lot 5940 Darwin – One Mile Dam Area - DC96/8	6018/98
C0060	Lot 5802 Darwin – One Mile Dam Area - DC96/8	6018/98
C0061	Lot 5027 Darwin - SPL 454 at One Mile Dam - DC96/7A, DC96/8	Ö	6018/98
C0062	Lot 6663 Darwin – One Mile Dam Area - DC96/8	6018/98
C0063	Lot 5942 Darwin -  Near Stuart Park Primary School - DC96/7A	Ö
C0064	Lot 5468 Darwin – South of Darwin Fire Station - DC96/7A	Ö
C0065	Lot 6361 Darwin – North of Bayview Haven - DC96/7A	Ö
C0066	Lot 5974 Darwin – North of Bayview Haven - DC96/7A	Ö
C0067	Sadgroves Ck Mangroves within Darwin Town - DC96/2, DC96/7A	Ö (part)	6011/98
C0068	Lot 7002 Sanderson - DC96/6, DC96/7A & DC00/7	Ö	6015/98
C0069	Lot 7003 Sanderson – East of Leanyer -DC96/6, DC96/7A	Ö	6015/98
C0070	Lot 6994 Sanderson – Pawa Sewerage Pump Stn - DC96/6, DC96/7A	Ö	6015/98
C0071	Lot 7016 Sanderson – Leanyer Recreation Lake - DC96/7A	Ö
C0072	Lot 6974 Sanderson – Near Leanyer Lake - DC96/6, DC96/7A	Ö	6015/98
C0074	Lot 6981 Sanderson – Model Flying Club - DC96/6, DC96/7A	Ö	6015/98
C0075	Lot 7004 Sanderson – Vanderlin Drive - DC96/6, DC96/7A	Ö	6015/98
C0077	Lot 7001 Sanderson – North of Holmes Jungle - DC96/6,DC96/7A	Ö	6015/98
C0078	Lot 1850 Sanderson – Holmes Hungle Nature Park - DC96/7A	Ö
C0079	Lot 1849 Sanderson – Holmes Jungle Nature Park - DC96/7A	Ö
C0080	Lot 1851 Sanderson – Holmes Jungle Nature Park - DC96/7A	Ö
C0081	Section 4224 Hd of Bagot – Buffalo Creek Area - DC96/6, DC96/7A	Ö	6015/98
C0082	Section 3388 Hd of Bagot – Leanyer Ponds - DC96/6, DC96/7A	Ö	6015/98
C0087	Section 4328 Hd of Bagot – North of Knuckey Lagoon - DC96/7A	Ö
C0088	Section 118 Hd of Bagot – North of Knucky Lagoons - DC96/7A	Ö
C0089	Section 109 Hd of Bagot – North of Knuckey Lagoons - DC96/7A	Ö
C0090	Section 107 Hd of Bagot – North of Knuckey Lagoons - DC96/7A	Ö
C0091	Section 110 Hd of Bagot – North of Knuckey Lagoons - DC96/7A	Ö
C0094	Section 4227 Hd of Bagot – NE of Robertson Barracks - DC96/7A	Ö
C0095	Section 113 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0097	Section 105 Hd of Bagot – Holtze Area – Holtze Area - DC96/7A	Ö
C0098	Section 104 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0099	Section 127 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0100	Section 103 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0101	Section 93 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0102	Section 92 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0103	Section 90 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0104	Section 91 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0105	Section 3300 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0106	Section 4257 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0107	Section 62 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0108	Section 63 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0109	Section 4258 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0110	Section 65 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0111	Section 64 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0112	Section 4259 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0113	Section 4228 Hd of Bagot – Holtze Area - DC96/7A	Ö
C0114	Section 4225 Hd of Bagot – Howard Springs Area - DC96/7A	Ö
C0116	Portion 1409 Hd of Bagot – Howard Springs Area - DC96/7A	Ö
C0117	Portion 2820 Hd of Bagot – Howard Springs Area - DC97/6	6026/98
C0120	Section 273 Hd of Bagot – Howard Springs Area - DC96/7A	Ö
C0121	Portion 2819 Hd of Bagot – Howard Springs - DC96/7A, DC97/6	Ö	6026/98
C0122	Portion 2818 Hd of Bagot – Howard Springs - DC96/7A, DC97/6	Ö	6026/98
C0124	Section 4295 Hd Bagot – Rapid Creek Near Airport - DC96/7A	Ö
C0125	Section 4294 Hd Bagot – Henry Wrigley Dr Marrara - DC96/7A	Ö
C0126	Portion 2710 Hd Bagot – Henry Wrigley Dr Marrara - DC96/7A	Ö
C0127	Portion 2209 Hd Bagot – Marrara Sporting Complex - DC96/7A	Ö
C0128	Section 4483 Hd Bagot – Marrara Sporting Complex - DC96/7A	Ö
C0129	Section 3397 Hd Bagot – Marrara Sporting Complex - DC96/7A	Ö
C0130	Section 4445 Hd Bagot – Batten Rd, NE of Airport - DC96/7A	Ö
C0131	Section 4262 Hd of Bagot – Amy Johnson Ave - DC96/7A & DC96/9	Ö	6019/98
C0132	Section 4261 Hd of Bagot – Amy Johnson Ave  - DC96/7,DC96/9	Ö	6019/98
C0133	Section 3226 Hd Bagot – Opposite Coonawarra Base - DC96/9	6019/98
C0134	Section 3225 Hd Bagot – Opposite Coonawarra Base - DC96/9	6019/98
C0135	Section 3465 HD Bagot, Amy Johnson Ave Extension - DC96/9	Ö	6019/98
C0136	Section 3464 Hd of Bagot – Amy Johnson Ave - DC96/7A, DC96/9	Ö	6019/98
C0137	Portion 1634 Hd of Bagot – Coonawarra West - DC96/7A, DC96/9	Ö	6019/98
C0138	Portion 1164 Hd of Bagot – Coonawarra West - DC96/7A, DC96/9	Ö	6019/98
C0139	Sec 3463 Hd Bagot – Hook Road - DC96/9,DC01/26	6019/98 6026/01
C0140	Portion 1765 Hd of Bagot – Tiger Brennan Dr - DC96/7A,DC96/9	Ö	6019/98
C0141	Portion 1764 Hd of Bagot – Tiger Brennan Dr - DC96/7A,DC96/9	Ö	6019/98
C0142	Portion 2346 Hd of Bagot – Charles Darwin Park - DC96/7A	Ö
C0143	Portion 2347 Hd of Bagot – Charles Darwin Park - DC96/7A	Ö
C0144	Portion 2348 Hd of Bagot – Charles Darwin Park - DC96/7A	Ö
C0145	Portion 2349 Hd of Bagot – Charles Darwin Park - DC96/7A	Ö
C0146	Mangroves from Sandgroves Creek to DC94/5 - DC96/2, DC96/7A	Ö (part)	6011/98
C0147	Section 4235 Hd bagot – Charles Darwin Pk -  DC96/7A,DC96/9	Ö	6019/98
C0148	Section 4373 Hd Bagot – Coonawarra - DC96/7A	Ö
C0149	Section 383 Hd of Bagot – Adj Charles Darwin Park - DC96/7A	Ö
C0150	Portion 1591 Hd of Bagot – Explosives Reserve Area - DC96/9	6019/98
C0151	Portion 1593 Hd of Bagot – Explosives Reserve Area - DC96/9	6019/98
C0152	Portion 1594 Hd of Bagot – Explosives Reserve Area - DC96/9	6019/98
C0153	Portion 1595 Hd of Bagot – Explosives Reserve Area - DC96/9	6019/98
C0154	Section 388 Hd of Bagot – Hidden Valley - DC96/7A, DC96/9	Ö	6019/98
C0155	Section 389 Hd of Bagot – Berrimah Road - DC96/7A, DC96/9	Ö	6019/98
C0156	Section 4356 Hd of Bagot – Hidden Valley Rd - DC96/7A, DC96/9	Ö	6019/98
C0157	Portion 2178 Hd of Bagot – Beaton Road Berrimah - DC96/9	6019/98
C0158	Section 4195 Hd of Bagot – Pt Berrimah Farm - DC96/7A, DC96/9	Ö	6019/98
C0159	Section 4248 Hd of Bagot – TDZ Area Berrimah Road - DC96/7A	Ö
C0160	Section 4245 Hd of Bagot, TDZ Area - DC94/5,DC96/7A & DC98/14	Ö
C0161	Section 4249 Hd Bagot – TDZ Area Berrimah Road - DC96/7A, DC98/14	Ö
C0162	Section 4337 Hd Bagot, TDZ Area Berrimah Road, DC96/7A, DC98/14	Ö
C0163	Section 4246 Hd of Bagot – TDZ Area Berrimah Road - DC96/7A	Ö
C0164	Section 4244 Hd of Bagot – TDZ Area Berrimah Road - DC96/7A	Ö
C0165	Section 4241 Hd of Bagot – Berrimah Rd/Wishart Rd - DC96/9	6019/98
C0166	Section 4240 Hd of Bagot – Berrimah Road - DC96/9	6019/98
C0167	Section 4242 Hd of Bagot – Wishart Road - DC96/7A, DC96/9	Ö	6019/98
C0168	Section 4243 Hd of Bagot – Wishart Road - DC96/7A, DC96/9	Ö	6019/98
C0169	Portion 1142 Hd of Bagot – Wishart Road – East Arm - DC96/7A	Ö
C0170	Mangroves & Waters – Hudson Creek – Hd Bagot -DC96/5, DC96/7A	Ö	6014/98
C0171	Section 397 Hd of Bagot – South of Wishart Road - DC96/7A	Ö
C0172	Section 67 Hd of Bagot – McFaroland Road Berrimah - DC96/7A	Ö
C0173	Section 70 Hd of Bagot – McFarland Road Berrimah - DC96/7A	Ö
C0174	Section 71 Hd of Bagot – McFarland Road Berrimah - DC96/7A	Ö
C0175	Section 4260 Hd of Bagot – Stuart Hwy Palmerston - DC96/7A	Ö
C0178	Mangroves – Elizabeth River – Palmerston - DC96/5, DC96/7A	Ö	6014/98
C0179	Lot 4242 Palmerston – Near Headwaters of Hudson Ck - DC96/7A	Ö
C0180	Lot 4153 Palmerston – Marlow Lagoon Recreation Area -DC96/7A	Ö
C0181	Lot 4255 Palmerston - Archer – Part Now Railway - DC96/7A	Ö
C0182	Lot 4256 Palmerston - Archer – Part Now Railway - DC96/7A	Ö
C0183	Lot 2721 Palmerston - Archer – Part Now Railway - DC96/7A	Ö
C0184	Lot 4257 Palmerston - Archer – Part Now Railway - DC96/7A	Ö
C0185	Lot 4258 Palmerston - Archer – Part Now Railway - DC96/7A	Ö
C0186	Part Lot 4302 Palmerston – Council Rubbish Dump - DC96/7A	Ö
C0187	Lot 4259 Palmerston - Archer – Part Now Railway - DC96/7A	Ö
C0188	Lot 4253 Palmerston – Mitchell Creek Area - DC96/7A	Ö
C0189	Lot 4254 Palmerston – Mitchell Creek Area - DC96/7A	Ö
C0190	Lot 4252 Palmerston – South East of Bellamack  - DC96/7A	Ö
C0191	Lot 4251 Palmerston – East of Rosebery - DC96/7A	Ö
C0192	Lot 4250 Palmerston – East of Bakewell - DC96/7A	Ö
C0193	Lot 4640 Palmerston – Gunn (The Chase) - DC96/7A	Ö
C0194	Lot 2886 Palmerston - Rosebery - DC94/1 AND DC99/1	6007/98(part) 6001/99(part)
C0195	Lot 2887 Palmerston – Rosebery - DC94/1	6007/98(part) 6001/99(part)
C0196	Lot 2888 Palmerston - Rosebery - DC94/1	6007/98
C0197	Lot 2889 Palmerston - Rosebery - DC94/1	6007/98
C0198	Lot 2890 Palmerston - Rosebery - DC94/1	6007/98
C0199	Lot 4533 Palmerston - Bellamack - DC94/1	6007/98
C0200	Elizabeth River Mangroves – HD Strangways - DC96/5, DC96/7A	Ö	6014/98
C0201	Lot 305 Virginia – Elizabeth River Frontage - DC96/5, DC96/7A	uncertain	6014/98
C0202	Lot 306 Virginia – Elizabeth River Frontage - DC96/5, DC96/7A	uncertain	6014/98
C0203	Lot 307 Virginia – Elizabeth River Frontage - DC96/5, DC96/7A	uncertain	6014/98
C0204	Lot 308 Virginia – Elizabeth River Frontage - DC96/5, DC96/7A	uncertain	6014/98
C0205	Lot 310 Virginia – Elizabeth River Frontage - DC96/5, DC96/7	uncertain	6014/98
C0206	Lot 311 Virginia – Elizabeth River Frontage - DC96/5, DC96/7A	uncertain	6014/98
C0207	Lot 312 Virginia – Elizabeth River Frontage -DC96/5, DC96/7A	uncertain	6014/98
C0208	Lot 313 Virginia – Elizabeth River Frontage - DC96/5, DC96/7A	uncertain	6014/98
C0209	Sections 1812,1813 Hd of Ayers - DC96/4, DC96/7A	Ö	6013/98
C0210	NT Portion 2367 – Pearling Lease, East Arm - DC96/7A	Ö
C0211	NT Portion 3999 – Pearling Lease, East Arm - DC96/7A	Ö
C0212	Mangroves – East Arm/Elizabeth River - DC96/4, DC96/7A	Ö	6013/98
C0213	Section 1814 Hd of Ayers - DC96/4, DC96/7A	Ö	6013/98
C0214	Section 1817 Hd of Ayers - DC96/4, DC96/7A	Ö	6013/98
C0215	Section 1816 Hd of Ayers - DC96/4, DC96/7A	Ö	6013/98
C0216	Section 1818 Hd of Ayers - DC96/4, DC96/7A	Ö	6013/98
C0217	Section 1659 Hd of Ayers - DC96/4, DC96/7A	Ö	6013/98
C0218	Section 1660 Hd of Ayers - DC96/4, DC96/7A	Ö	6013/98
C0219	Section 1819 Hd of Ayers - DC96/4, DC96/7A	Ö	6013/98
C0278	Middle Arm Mangrove Habitat - DC96/4 &  DC96/7A	Ö	6013/98
C0308	Central & Southern Waters of Elizabeth River - DC96/7A	Ö
C0309	Waters Surrounding Wickham Pt Acquisition Area Waters Surrounding Wickham Pt Acquisition Area - DC96/7A	Ö
C0312	VCL & Waters, West & South West of Sadgroves Ck - DC96/7A	Ö
C0314	Lot 8630, Nightcliff – Coconut Grove – Kulaluk - DC98/11	6040/98
C0315	NT Portion 2627 – Channel Island - DC96/7A	Ö
C0316	Section 1791 Hd of Ayers - DC96/7A	Ö
C0317	Part Lot 5695 Town of Darwin – DC96/7A, DC99/1	Ö	6001/99
C0318	Lot 6665 Darwin – Frances Bay - DC99/1	6001/99
C0319	Part of Lot 6 Palmerston & Owston Ave – DC99/1	6001/99
C0320	Section 4568 Hundred of Bagot – Boulter Road – DC96/9	Ö	6019/98
C0322	Lots 5848, 5849 Palmerston – Bakewell – DC96/7A	Ö
C0323	Part Lot 9 Palmerston – Bakewell – DC96/7A	Ö

1. The Claim Area List indicates those parts of claims which do not overlap with the area encompassed by Part A of DG6017/1998.  I have excluded from the Claim Area List claim area C73 designated by the Territory because it does not appear to have been claimed in any proceeding, and claim area C83 because it too does not appear to have been claimed in any proceeding (except perhaps to the extent that it overlaps with claim area C81 claimed in DG6015/1998, and so is dealt with when addressing claim area C81.  As there is no claim for determination of native title over those two areas, I do not consider I have jurisdiction to make a determination with respect to them.  The remaining 214 claim areas designated in the Claim Area List are encompassed within the claims which, by reason of the order I have made, are before the Court.

2. Unless it is necessary to do so, I shall call the areas of land and waters collectively in the Claim Area List ‘the claim area’.  I shall separately describe them only to the extent that it is necessary or would be helpful to an understanding of my reasons for judgment.

   The Larrakia Applications

3. The named applicants – William Maxwell Risk, Helen Secretary and Pauline Baban and the deceased person Prince of Wales – have made the applications on behalf of the ‘Larrakia People’.  The members of this native title claim group are said to be the descendents of persons named in [6] of Schedule A to the application in DG6017 of 1998.  The nine ancestors listed in [6] include Minnie Lily, Fat Jack, Djalamin, King Tommy, Annie Duwun, Blanchie, Madjalaba, Kanjawone King Charles and Bessie.  Paragraph [6] further notes that the descendents of these nine ancestors comprise 19 Larrakia sub-groups or families, which are divided into seven groups: the Djalamin and King Tommy Families, the Blanchie Family, the Fejo Families and, under ‘Other Families’, Eva Humbatj, Minnie Lily, Yama Maudie Robinson and Annie Duwun. 

4. In their written submissions, the first applicants assert that the native title claim group of the first applicants encompasses those who are the second applicants and the third applicants.  The first applicants’ position is that they would regard a native title determination in which persons who hold native title are identified as Larrakia people as including those Aboriginal people who have participated as applicants in the consolidated proceeding, including those persons who fall within the second applicants and the third applicants.

   The Quall Applications

5. Mr Quall is the named applicant for the second applicant group. As seen above, he filed 11 native title determination applications under the NT Act. The native title claim group is referred to in DG6018/1998 and DG6019/1998 as ‘members of the Danggalaba Clan’, comprising eight people, including Mr Quall, Ronald Keith Quall, Diana Deeja Quall, Phillip Rupert Quall, Kevin Andrew Quall, Natasha Anne Quall, Sarah Audrey Quall and Linda Muriel Quall. In other applications, the native title claim group is referred to as the ‘Kulumbiringin’, comprising the descendents of Kulumbiringin ancestors ‘according to Aboriginal law and custom’, including four elders and their family groups. The four elders include Yula Williams, Mary Raymond, Rona Alley and Ron Quall. As noted, all of the individuals named in the Quall applications are listed as Larrakia people in the list of Larrakia people on whose behalf the Larrakia applications are made.

6. Mr Quall, the named applicant for the second applicant group, submitted that the Larrakia people ought not be awarded native title over the claim area, as the group is simply a language group.  He submitted that the members of the Larrakia applicant groups have lost their culture, and that it is the Danggalaba clan (or the Kulumbiringin clan) who have continued to observe and acknowledge traditional laws and customs and to maintain their connection to the relevant land and waters.

   The Roman Application

7. The claim group in D6007/2000 is described in the application as ‘Larrakia’, the ‘Yirra Bandoo Aboriginal Corporation’ (YBAC), ‘YBAC members’ and the ‘Yirra Bandoo native title group’.  In Attachment 2(a) to their application, it is stated that the Yirra Bandoo Aboriginal Corporation ‘acknowledge, accept and support the rights of other Larrakia people to make application’ but limit this to ‘three broad groups that make up the Larrakia people’.  These groups include:

   (1)   Descendents of two brothers known as Djalamin and King Tommy.  These people constitute the ‘Danggalaba clan’ – including the Roman families, the Tommy Lyons family, the Secretarys and the Prince of Wales family. 

   (2)   The Batcho group of families – including the Williams, the Qualls, Mary Raymond and family and Rona Ah Met and family.

   (3)   The Shepherd group of families, including the Reid family, the Risk family, the Baban family and the Shepherd family. 

8. On 4 March 2004, the third applicants filed a written application for leave to discontinue their claim.  The basis for the application was said to be that ‘significant members of the group had indicated that they were no longer willing to be members of the group’. Following oral submissions and the consent of all of the other parties, I granted the application.  A Notice of Discontinuance was filed in the Northern Territory Registry that same day.

9. The third applicants’ claimed areas of land and waters were also within those covered by applications filed on behalf of the first applicants.  All of the evidence led by the third applicants therefore remains relevant to the current proceedings. 

   Description of Claim Area

10. The claim area in the consolidated proceedings covers parts of metropolitan Darwin and its surrounds on the Darwin Peninsula.  Darwin is the capital city of the Northern Territory, with a population of about 100,000 people.  It is a beautiful and vibrant city with a diverse population.  The Darwin region is on the coast, and consequently enjoys both beaches, around which development is mainly centred, and mangrove swamp areas, which according to archaeological evidence have developed over the last 500-1000 years. 

11. Port Darwin is a protected harbour accessed from the north.  It is surrounded on the east by the Darwin Peninsula and on the west by the Cox Peninsula.  The claim area is that on the eastern side of Port Darwin extending eastwards and southwards.  The East Arm of the harbour joins up with the Elizabeth River which enters Port Darwin from the east.  The East Arm and the Middle Arm of the harbour are straddled by a wedge of land bounded by the East Arm and the Elizabeth River on its northern side and by the Middle Arm and then (to the east) Haycock Reach and Blackmore River (to the south east).  The western extremity of that wedge of land into Port Darwin is called Middle Point.  To the south of Middle Point in the entrance to the Middle Arm is Channel Island.

12. The claim area comprises many sections of land and waters, including mangrove swamps, within that general area.  It is overall an area of about 30 kilometres square.  The claim area does not encompass all that area, but generally those parts of the land where there has not been residential or commercial development.  The claim area encompasses mostly areas of Crown land as well as some land held by the Darwin City Council (DCC), and some land held by the Palmerston City Council, and includes waters adjoining areas of the land and mangrove swamps over which a claim has been made.

13. The central business district of Darwin is situated with Lameroo Beach on its south-west side, facing towards the Cox Peninsula.  The coastal suburbs of Darwin feature prominently in the claim area in this proceeding.  Cullen Bay, an inner-city suburb, is north of the CBD, as are Myilly Point, Mindil Beach, Vesteys Beach and Fannie Bay.  Further north, still on the coast, are the suburbs of Coconut Grove, Ludmilla, Casuarina Beach and Lee Point. 

14. Stuart Park, another inner-city suburb, is situated to the north-east of the city, next to Dinah Beach, extending out into Frances Bay (before the East Arm begins).  A large area of mangroves runs from the edge of Stuart Park around the harbour and along the Elizabeth River, bordered by suburbs such as Winnellie, Coonawarra and Berrimah.

15. To the north-east of Darwin lies the suburb of Leanyer.  Leanyer, along with Holmes Jungle Nature Park and areas to its south-east, at the base of the Shoal Bay Peninsula and Howard Peninsula, including Howard Springs Nature Reserve, is within the broader claim area, so that parts of that area are within the claim area. 

16. Palmerston, a town to the south of Darwin, also has areas to its south, south east and south west which are the subject of the claim.

17. It is helpful to note at this point that Justice Gray as the Aboriginal Land Rights Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALR Act) provided a Report and recommendations concerning a claim under the ALR Act entitled The Kenbi (Cox Peninsula) Land Claim No 37 on 12 December 2000 (the Kenbi Report). I shall call the claim the subject of the Kenbi Report ‘the Kenbi Claim’. It concerned a claim under the ALR Act in respect of much of the Cox Peninsula, that area of land on the western side of Port Darwin, and extending at its southern section to the east to the western side of the Middle Arm of Port Darwin, as well as significant areas including islands west and south of the Cox Peninsula. The stretch of water in Port Darwin known as the West Arm extending into part of the Cox Peninsula was surrounded by land encompassed within the Kenbi Claim.

18. This is only a brief overview.  It is clear that any examination of the area the subject of the native title determination applications in the consolidated proceeding will be complex and intricate. 

19. Despite the fact that the claim area is a large area, extending over some residential areas and areas adjacent to residential areas, parks, swamps and beaches, the parties in their submissions said that all evidence in respect of the claim, although sometimes site specific, was relevant to the whole claim area.  They did not contend that findings should be made with respect to a particular claim area.  It was presented to the Court as an all or nothing scenario. 

20. Because of this, it is not necessary at this point to consider whether claimed native title rights are applicable to particular sites.  It will be necessary to be more ‘site specific’ when addressing issues of extinguishment.

    The Determination Sought

21. Ultimately, the form of determination sought by the first applicants was in the following terms:

    Existence of native title (s.225)

    1.        The Determination Area is the land and waters described in Schedule 1.

    2.Native title exists in those parts of the Determination Area identified in Schedules 4 to 8 (Native Title Area).

    3.Native Title does not exist in those parts of the Determination Area identified in Schedule 3.

    The Native Title Holders (s.225(a))

    4.The native title is held by the Larrakia People.

    The nature and extent of native title rights and interests (s.225(b)) and exclusiveness of native title (s.225(e))

    5.The native title rights and interests that exist in relation to each part of the Native Title Area referred to in Schedule 4 (being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded) are a right of possession, occupation use and enjoyment to the exclusion of all others.

    6.The native title rights and interests that exist in relation to each part of the Native Title Area referred to in Schedule 5 (being current and historical [e.g. reserve, annual pastoral lease and pastoral lease areas where there is no public access] other than areas where any extinguishment must be disregarded) are:

    (a)right to enter or have access;

    (b)right to remain;

    (c)right to use and enjoy;

    (d)right to live on;

    (e)right to use and enjoy, or take, resources;

    (f)right to share, exchange or trade resources;

    (g)right to protect places of importance;

    (h)right to control access to and use of the area by Aboriginal people who recognise themselves to be governed by Aboriginal traditional laws and customs and by any other person not having a right of access or use comprised in or pursuant to another interest or law;

    (i)right to receive a portion of resources taken by Aboriginal people who recognise themselves to be governed by Aboriginal traditional laws and customs and by any other person not having a right to take resources comprised in or pursuant to another interest;

    (j)rights of such Aboriginal persons who, in accordance with the traditional laws acknowledged and traditional customs observed by the Larrakia people, are recognised as being closely related to a member of the Larrakia people, including a spouse of a Larrakia person:  of access to, and to hunt fish and gather the natural resources on, the land and waters of Larrakia country subject to the permission, implied or express, of Larrakia people; and

    (k)rights of senior Aboriginal persons who, in accordance with the traditional laws acknowledged and traditional customs observed by the Larrakia people, are recognised as being authoritative in ritual or Larrakia knowledge:  to act, in accordance with traditional laws and customs, in relation to the maintenance and protection of sites and rights of access to, and to hunt fish and gather the natural resources on Larrakia country subject to the permission, implied or express, of Larrakia people.

    7.The native title rights and interests that exist in relation to each part of the Native Title Area referred to in Schedule 6 (being current and historical [where partial extinguishment acts involving greater loss of control of access have occurred – e.g. reserves where there is public access] other than areas where any extinguishment must be disregarded) are:

    (a)       right to enter or have access;
    (b)       right to remain;
    (c)       right to use and enjoy;
    (d)       right to live on;
    (e)       right to use and enjoy, or take, resources;
    (f)        right to share, exchange or trade resources;
    (g)       right to protect places of importance;

    (h)control access to and use of the area by Aboriginal people who recognise themselves to be governed by Aboriginal traditional laws and customs;

    (i)receive a portion of resources taken by Aboriginal people who recognise themselves to be governed by Aboriginal traditional laws and customs;

    (j)rights of such Aboriginal persons who, in accordance with the traditional laws acknowledged and traditional customs observed by the Larrakia people, are recognised as being closely related to a member of the Larrakia people, including a spouse of a Larrakia person:  of access to, and to hunt fish and gather the natural resources on, the land and waters of Larrakia country subject to the permission, implied or express, of Larrakia people; and

    (k)rights of senior Aboriginal persons who, in accordance with the traditional laws acknowledged and traditional customs observed by the Larrakia people, are recognised as being authoritative in ritual or Larrakia knowledge:  to act, in accordance with traditional laws and customs, in relation to the maintenance and protection of sites and rights of access to, and to hunt fish and gather the natural resources on Larrakia country subject to the permission, implied or express, of Larrakia people.

    8.The native title rights and interests that exist in relation to each part of the Native Title Area referred to in Schedule 7 (being areas below high water mark) are:

    (a)       enter or have access;
    (b)       remain;
    (c)       use and enjoy;
    (d)       use and enjoy, or take, resources;
    (e)       share, exchange or trade resources;
    (f)        protect places of importance;

    (g)control access to and use of the area by Aboriginal people who recognise themselves to be governed by Aboriginal traditional laws and customs;

    (h)receive a portion of resources taken by Aboriginal people who recognise themselves to be governed by Aboriginal traditional laws and customs;

    (i)rights of such Aboriginal persons who, in accordance with the traditional laws acknowledged and traditional customs observed by the Larrakia people are recognised as being closely related to a member of the Larrakia people, including a spouse of a Larrakia person:  of access to, and to hunt fish and gather the natural resources on, the land and waters of Larrakia country subject to the permission, implied or express, of Larrakia people; and

    (j)rights of senior Aboriginal persons who, in accordance with the traditional laws acknowledged and traditional customs observed by the Larrakia people, are recognised as being authoritative in ritual or Larrakia knowledge:  to act, in accordance with traditional laws and customs, in relation to the maintenance and protection of sites and rights of access to, and to hunt fish and gather the natural resources on Larrakia country subject to the permission, implied or express, of Larrakia people.

    9.The rights referred to in Orders 6 – 8 do not confer possession, occupation, use and enjoyment of that land and waters on the native title holders to the exclusion of all others.

    10.The native title rights and interests are subject to and exercisable in accordance with the laws of the Northern Territory and the Commonwealth.

    11.Notwithstanding anything in the determination, there are no native title rights and interests in or in relation to:

    (a)such minerals as defined in the Mining Act (NT), as in force at the date of the determination, as are wholly owned by the Crown; or

    (b)such petroleum as defined in the Petroleum Act (NT), as in force at the date of the determination, as is wholly owned by the Crown.

    12.There are no exclusive native title rights in or to flowing or subterranean water in the Native Title Area.

    The nature and extent of any other interests in relation to the
    Determination Area (s.225(c))

    13.The nature and extent of other interests in relation to the Native Title Area are the following as they exist at the date of the Determination:

    (a)       the public right to fish in tidal waters;
    (b)       the public right to navigate in tidal waters;

    (c)so far as confirmed pursuant to section 13 of the Validation (Native Title) Act 1994 as at 18 June 1999, public access to and enjoyment of the following places:

    (i)        waterways;

    (ii)       beds and banks or foreshores of waterways;

    (iii)coastal waters;

    (iv)beaches

    (v)areas that were public places at the end of 31 December 1993;

    (d)the interests of [identified] persons to whom [identified] valid and validated rights and interests have been granted by the Crown pursuant to statute or otherwise in the exercise of its executive power;

    (e)the right to access land by an employee or agent or instrumentality of the State, Commonwealth or any local government or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;

    (f)        the interests of Telstra Corporation Limited, being:

    (i)rights and interests as the owner or operator of telecommunications facilities within the Native Title Area, including customer radio terminals and overhead and underground cabling;

    (ii)rights and interests pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1991 (Cth) and the Telecommunications Act 1997 (Cth); and

    (iii)rights of access by employees, agents or contractors of Telstra Corporation Limited to its facilities in or surrounded by the Native Title Area in the performance of their duties; and

    (g)the interests of the Crown in any capacity, or of any statutory authority in relation to things referred to in Schedule 8 [public works and other facilities on Native Title Areas where any extinguishment is to be disregarded] which were constructed or commenced to be constructed or used on identified areas;

    (h)the interests of the Crown in any capacity, or of any statutory authority in relation to things referred to in Schedule 9 [public works and other facilities on Native Title Areas where any extinguishment is not to be disregarded] which were constructed or commenced to be constructed or used on identified areas.

    Relationship between the Native Title Rights and Interests and
    the Other Interests (s.225(d))

    14.The relationship between the native title rights and interests in the Native Title Area and the other rights and interests described in paragraph 13 (other interests) is that:

    (a)in relation to the other interests referred to in paragraph 13 (insert sub-paragraphs identifying other interests to which section 23G and 44H of the Native Title Act apply, for example sub-paragraph (d), (e), (f) and (h)) – the other interests, and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them, and the existence and exercise of the native title rights and interests does not prevent the doing of the activity;

    (b)in relation to the other interests referred to in paragraph 13 (insert sub-paragraphs identifying other interests to which the non-extinguishment principal applies, for example sub-paragraphs (d), (g)) – to the extent that the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of those other interests.  If those other interests are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have full effect, wholly or partly as the case may be;

    (c)in relation to the other interests referred to in paragraphs 13(a), (b) and (c) – those rights co-exist with the native title rights and interests; and

    (d)in relation to the other interests referred to in paragraph 13(g) – the determination does not affect those interests.

    AND THE COURT FURTHER ORDERS THAT

    How the Native Title is Held

    15.      The native title is not to be held in trust.

    The Native Title Body Corporate

    16.Within three months of the date hereof, or such later period as may be allowed by the Court, the common law holders of native title may file a minute of a proposed determination under s56 and s57 of the Native Title Act 1993 (Cth) and, if no such minute is filed within that time, it is determined that native title is held by the common law holders of native title.

    17.Until such time as there is a registered native title body corporate in relation to the Native Title Area any notices required under the Native Title Act 1993 (Cth) or otherwise to be served on the Native Title Holders, the native title claim group or the registered native title claimant may be served upon the solicitors for the Applicants and the representative Aboriginal body for the Determination Area, and such service shall be deemed to be sufficient.

1. I have not reproduced the schedules referred to.  If I were to be satisfied that a determination of the existence of native title rights and interests should be made, either in the form sought or in some other form, the schedules would require separate consideration in the light of my findings about extinguishment.

2. The second applicants, of course, disagree with par 4 of that proposed determination.  They seek a determination in favour of the Danggalaba people.

3. It can be seen that the proposed determination includes a claim to exclusive possession of parts of the claim area. At the other end of the spectrum, the Territory throughout maintained that the applicants had not established the existence of any native title rights and interests in the claim area under the NT Act. The respondents alternatively contended that if any native title rights and interests were established, they were in no instance exclusive and they were not as extensive as those sought in the proposed determination. They further contended that any such native title rights and interests as might otherwise have been established had, in essence, been extinguished by a combination of past legislative and executive actions.

4. The respective positions of the parties could hardly have been more diametrically opposed, save for the realistic acknowledgments the applicants made in respect of the extinguishing effect of a number of those past legislative and executive actions.

   The Hearing

5. The hearing commenced on 2 September 2002 in Darwin.  Thereafter, 68 days of evidence and submissions were heard in several tranches.  The evidence of Aboriginal witnesses was given at the Supreme Court in Darwin and at other places in the claim area.  The Court received evidence from Aboriginal witnesses generally in the form of a written statement supplemented by oral evidence. 

6. Evidence was taken at a number of sites in the claim area over eight days of evidence.  Part of the on-country evidence was on board a boat in Port Darwin, in the East Arm and Elizabeth River areas.  Evidence was also given on land within the claim area, at various places including the Esplanade area and Lameroo Beach (both on the south western side of the CBD); the Larrakeyah Barracks a little to the north of those points west; and Mindil Beach; East Point at the northern end of Fannie Bay; Kulaluk to the north of East Point; Rapid Creek; Casuarina Beach; Lee Point and Holmes Jungle (south-east of Lee Point).  On site evidence was also taken at the base of Howards Peninsula at Howard Swamp and Howard Springs near the eastern extremity of the claim area.  In the area to the east of the Darwin CBD and near the northern side of Port Darwin, further evidence was given at One Mile Dam (near Dinah Beach in Frances Bay), the Police Paddock, and east in Charles Darwin National Park.  Finally (for the purpose of this description, but not in the sequence of the evidence), on-site evidence was heard at Wickham Point and at the Channel Island Conservation Park, in the mouth of the Middle Arm of Port Darwin.  The sites where such evidence was taken therefore reflect a geographical spread around the claim area.

7. Oral evidence was given by some 47 Aboriginal persons about their personal history and experiences, what they had learned and knew of the claim area or parts of it, their upbringing, and their activities and dealings with and in the claim area, as well as their beliefs with respect to it.  That evidence was given in the courtroom, as well as ‘on-country’.  Two statements were tendered of witnesses who were not presented for oral evidence.  Those two witnesses were Mr Quall and his sister Dianne (Didi) Quall.

8. Mr Quall also participated in the hearing by giving evidence, tendering certain documents and by cross-examining witnesses and presenting final submissions.  He sought to establish through his cross-examination that the Danggalaba Clan or the Kulumbiringin clan was the holder of native title rights and interests over such parts of the claim area as were the subject of claims by the Quall applications, rather than the larger Larrakia claim group.  As noted earlier, those clan groups were comprised of eight named persons or the family groups of four named elders.  His final written submissions confined the clan group to members of the Batcho family.  Certain of the named elders gave evidence in the course of the first applicants’ case.  It is clear that the first applicants regard the second applicants (however comprised) as members of the Larrakia group, and certain of them clearly regarded Mr Quall as a person of seniority and significant learning.

9. Until the discontinuance of the Roman application, the Roman applicants were represented by leave by Jack Crosby and then by Steven McLean.  They tendered certain documents.  It was apparent from their cross-examination that they, too, regarded a more confined group than the Larrakia applicants as the persons entitled to hold native title rights and interests in the claim area generally, although their questioning was mainly directed to that part of the claim area covered by the Roman application.

10. Apart from that on-site evidence, the bulk of the evidence comprises expert reports, public records and witness statements tendered without formal proof.  The first applicants’ expert reports included an archaeological report prepared by Dr Peter Hiscock (Dr Hiscock), a genealogical report prepared by Dr Michael Walsh (Dr Walsh), a linguistic report prepared by Dr Black, an historical report prepared by Dr Samantha Wells (Dr Wells), an ethno-archaeological report by Dr Patricia Bourke (Dr Bourke), and two anthropological reports by Mr Robert Graham (Mr Graham).  All of these witnesses were cross-examined, with the exception of Dr Hiscock.  Both Dr Walsh and Mr Graham had given evidence in the hearing of the Kenbi Claim, and they were questioned about that evidence and about documents they had produced for the purposes of that claim.

11. The material tendered on behalf of one or other of the applicants included the Kenbi Report, extensive sections of the transcript of the hearing before Justice Gray for the Kenbi Claim, the Kenbi Land Claim 1979 Book, sections of the book Saltwater People:  Larrakia Stories from Around Darwin (Larrakia Nation Aboriginal Corporation, Casuarina, NT, 2001) and Larrakia Genealogies (used in the Kenbi Claim).  There was also extensive other documentary and photographic material.

12. The Territory tendered an historical report prepared by Ms Helen Wilson (Ms Wilson) and an anthropology report by the late Professor Kenneth Maddock (Professor Maddock). Unfortunately, Professor Maddock died before the hearing of expert evidence. The applicants later tendered an anthropology report of Professor Howard Morphy (Professor Morphy). On 24 October 2003, I ruled that Professor Morphy’s report be received, but limited to its use pursuant to s 136 of the Evidence Act 1995 (Cth) (the Evidence Act) as being material which is available to the first applicants from a qualified anthropologist and which may have been used to cross-examine Professor Maddock were he available for cross-examination. There was extensive documentary material filed in support of the report of Ms Wilson, as well as other material adduced by the respondents relevant to the asserted existence of native title in the claim area.

13. The Territory and the fifth respondent, the DCC also filed extensive documentary material relating to issues of extinguishment of native title.  That material included extensive tenure documentation, and records of public works carried out over many decades.  That material was expanded upon and explained by 26 witnesses called on behalf of the Territory or the DCC, many of whom were cross-examined.

14. The Amateur Fishermen’s Association of Northern Territory (AFANT) also participated in the hearing by cross examining witnesses and by making submissions.

15. There were a number of non-active respondents:  the Palmerston City Council, ANZ Banking Corporation Ltd, Defence Housing Authority, Delfin Chase Pty Ltd, Diamond Leisure Pty Ltd, Fernbank Pty Ltd, NT Gas Distribution Pty Ltd, NT Gas Pty Ltd, Guiseppe Maugeri, CSR Limited, CSR Readymix (Australia) Pty Ltd, Conservation Land Corporation, Telstra Corporation Ltd, Northern Territory Christian Schools Association, and Darwin Model Flying Club.  Of those non-active respondents, written closing submissions were submitted jointly by Defence Housing Authority, Delfin Chase Pty Ltd and ANZ Banking Group Ltd; jointly by NT Gas Pty Ltd and NT Gas Distribution Pty Ltd; by Mr Maugeri (through Motoo Sakurai); and by Telstra Corporation Ltd.

16. During the course of the hearing, I made certain orders restricting the publication of the transcript of gender restricted evidence. The ‘men only’ evidence was to be transcribed by a man and access to the transcript was to be by men only.  The transcript was duly marked and kept separate from the general transcript.  Such evidence was given at the Larrakeyah Barracks and on three separate occasions in Court.

17. It is important to remark upon the conduct of the hearing by all parties and their legal representatives.  They are all to be commended.  As is clear from the above, the evidence was very extensive, particularly the documentary evidence.  All parties and their legal representatives at all times sought to maintain a clear focus on the issues to be decided in the case.  They appropriately co-operated in the timetabling of witnesses, and in ensuring that the Court could readily follow the proposed course of the evidence and the relevance of evidence to particular issues.  The final written submissions of all parties were comprehensive and focused.  Without those very helpful submissions, my task would have been much more difficult.  I am very appreciative of that assistance.  All parties should also be appreciative of the thorough and careful work done on their behalf by their legal representatives to ensure their respective cases were fully and properly presented, and the contentions in support of them effectively put.

    The law in relation to native title

18. The starting point for consideration of the consolidated proceeding is the NT Act. True though it may be that paragraphs (a) and (b) of s 223(1) are based on the judgment of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1, it is the provisions of the NT Act which the Court must address in any determination of native title. See Western Australia v Ward (2002) 213 CLR 1 (Ward), at [16], [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta), at [32] per Gleeson CJ, Gummow and Hayne JJ; and Commonwealth v Yarmirr (2001) 208 CLR 1 (Yarmirr), at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

19. It is nevertheless appropriate to note that the NT Act is premised upon the fact that, on the acquisition of sovereignty, certain rights and interests held by indigenous people under their traditional laws and customs may be recognised by, and become enforceable under, the common law. Until the Racial Discrimination Act 1975 (Cth), such rights were vulnerable to extinguishment, either total or partial, by a range of legislative and executive acts. The NT Act provides for the circumstances in which, and the manner in which, the recognition of ongoing native title rights and interests may be determined. It is therefore to the terms of the NT Act, as explained by the High Court, to which attention must be given.

20. Section 223(1) defines the term ‘native title’ as follows:

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

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

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

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

21. What is to be determined upon a determination of native title is provided for in s 225 of the NT Act:

    ‘A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters, and if it does exist, a determination of:

    (a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

    (b)the nature and extent of the native title rights and interests in relation to the determination area; and

    (c)the nature and extent of any other interests in relation to the determination area; and

    (d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

    (e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.’

22. All the elements of the definition of native title in s 223(1) must be given effect: Yorta Yorta at [33]. In Ward at [17]-[18], Gleeson CJ, Gaudron, Gummow and Hayne JJ said in relation to s 223(1):

    ‘Several points should be made here.  First, the rights and interests may be communal, group or individual rights and interests.  Secondly, the rights and interests consist “in relation to land or waters”.  Thirdly, the rights and interests must have three characteristics: they are rights and interests which are “possessed under the traditional laws acknowledged, and the traditional customs observed”, by the relevant peoples; by those traditional laws and customs, the peoples “have a connection with” the land or waters in question; and the rights and interests must be “recognised by the common law of Australia”.

23. The High Court reiterated those matters in Yarmirr at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and also in Yorta Yorta at [33]-[35] per Gleeson CJ, Gummow and Hayne JJ. 

24. In Ward, the same members of the High Court addressed the issues for consideration in a determination of native title. In relation to s 223(1)(a), their Honours said (at [18]):

    ‘The question in a given case whether (a) is satisfied presents a question of fact.  It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters “by those laws or customs”. Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs.’

25. In relation to s 223(1)(b), they said (at [64]):

    ‘In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters.  Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a “connection” with the land or waters.  That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned.  But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection.  Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by “connection” by those laws and customs.  This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient.  We, therefore, need express no view, in these matters, on what is the nature of the “connection” that must be shown to exist.  In particular, we need express no view on when a “spiritual connection” with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice.’

26. In Yorta Yorta, the High Court (Gleeson CJ, Gummow and Hayne JJ; Gaudron and Kirby JJ dissenting) further addressed the requirements of s 223(1) and expanded on the need for connection.

27. The majority set out the following principles at [37]:

    ‘First, it follows from Mabo [No 2] that the Crown’s acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court.  Secondly, upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown’s acquisition of sovereignty and radical title.  What survived were rights and interests in relation to land or waters.  Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.’

28. At [38]-[40] and at [43]-[45], the majority stated that the rights and interests the subject of the NT Act are those which derive from traditional laws and customs forming a body of norms that existed before sovereignty. This principle affects the construction of the definition of native title in s 223(1), in particular, the meaning of ‘traditional’. See Yorta Yorta at [46]-[47], where the majority said:

    ‘ …the references, in pars (a) and (b) of the definition of native title, to “traditional” law or custom must be understood in the light of the considerations that have been mentioned.  As the claimants submitted, “traditional” is a word apt to refer to a means of transmission of law or custom.  A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice.  But in the context of the Native Title Act, “traditional” carries with it two other elements in its meaning.  First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown.  It is only those normative rules that are “traditional” laws and customs.

    Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty.  If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist.  And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.’

1. These provisions were part of the raft of amendments to the NT Act which were introduced by the amending Act and came into force on 30 September 1998. They require certain kinds of extinguishment to be ‘disregarded’ for all purposes under the NT Act in relation to the relevant application. They were apparently intended to accommodate or respond to circumstances where Aboriginal people had been living on a particular area of land for a considerable period, but may have been unable to obtain a determination of native title because of some extinguishing event which had occurred well in the past.

2. Section 47A addresses circumstances where the claimants for native title have been in occupation of particular land under a form of a ‘land grant’ to an indigenous group. It is a logical extension of s 47, which applies where an indigenous group holds a pastoral lease over the claim area or parts of it. Section 47B broadly applies where the claimants for native title occupy vacant Crown land.

   Section 47A: Whether the Tenure Attracts its Operation

3. The first applicants submitted that s 47A applied in relation to sites C61 (One Mile Dam), C22 (Bagot), and C21 and C314 (Kulaluk) within the claim area so that certain extinguishing acts in relation to those sites were to be disregarded. Section 47A directs that certain prior extinguishment is to be disregarded if it applies. Relevantly to the present proceedings, s 47A(1)(b)(ii) provides that s 47A applies if, at the time of the relevant application

   ‘the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders’

4. The first applicants said that it was unnecessary to address the issue in relation to Kulaluk because they propose to withdraw the claim over that area, although one of the Quall applications still covers part of it.  They have not yet done so.  As I am addressing the issue of principle only, I do not need to refer to that aspect further.

5. The first applicants also said in submissions that further evidence as to the membership of the entities or persons holding the relevant interests said to engage s 47A(1)(b)(ii) may be required. The evidence about their composition was scanty. I have referred above generally to my tentative view about permitting that course, if it were relevant.

6. Section 47A applies if an application for determination of native title is made and if there is at that time a freehold or leasehold grant of the nature described. Kulaluk is an area where Aboriginal persons are presently living, and were so at the time of the relevant applications. The respondents accept that amounts to occupation of that area. The evidence about One Mile Dam and Bagot is not so clear. For the reasons I have given, I do not propose to finally decide that contested factual issue.

7. In my view, the requirement that the area be held ‘expressly’ for the benefit (relevantly) of Aboriginal peoples does not require that the instrument granting the freehold or lease of the particular area contain that explicit condition. The requirement for the grant is contained in s 47A(1)(b)(i); it is that the legislation under which the grant of the freehold or leasehold interest have a particular character. A grant under the ALR Act would be a typical example. The separate condition imposed by s 47A(1)(b)(ii) that the area be held expressly for the benefit of Aboriginal people may be shown either by the terms of the grant or by the terms of the legislation under which the grant is made.

8. In the case of site C314 (Kulaluk), neither the enabling legislation nor the lease itself indicates explicitly that the site is held expressly for the benefit of Aboriginal people. The lessee is the Gwala Dariniki Association Inc (the Association). Its constitution was admitted into evidence during the final oral submissions. I doubt that the composition of the grantee of a freehold or leasehold entity can itself lead to s 47A(1)(b)(ii) being satisfied. The composition of a holding entity may change, and its purposes may change. The fact that, at the time of the grant, its objects and composition may enable a finding to be made that its purposes (even its then express purposes) were for the benefit of Aboriginal peoples does not mean that purpose will be ongoing. The Association, according to its constitution, has objects which are consistent with the object required by s 47A(1)(b)(ii) but, as the Territory pointed out, not all its membership must comprise Aboriginal persons and its actual composition is not presently proved.

9. In my view, s 47A is intended to operate only where the legislation itself underlying the grant, or the grant itself, imposes the condition referred to so as to secure the inefinite future use of the area for the benefit of Aboriginal people.

10. The first applicants also referred extensively to the background to the grant. Part of that background is the subject of findings I have made when addressing the land claims by the Larrakia people. However, in my view, such background information does not enable a finding to be made that the area is held expressly for the benefit of Aboriginal people. The requirement that the purpose be expressed may be contrasted with the requirement in s 47B(1)(b)(ii) where the adverb (expressly) is not used in relation to the purpose of a reservation etc to which s 47B might apply.

    The Area

11. Section 47A(1)(c) requires that, at the time of the application, one or more of the members of the native title claim group were occupying the area. The same requirement exists under s 47B(1)(c).

    
    

12. There were extensive submissions about the measure by which occupation is to be determined.  They related to two issues:  the identification of the ‘area’ which is so occupied, and what is required in fact to constitute occupation.

13. Section 47A must use the word the ‘area’ consistently. The area required to be occupied must therefore be the area held expressly for the benefit of the particular Aboriginal group under the relevant grant. It was referred to in submissions as the ‘particular land administration area’. The common position on that issue, at least in respect of s 47A, follows the observations of Sundberg J in Neowarra v State of Western Australia [2003] FCA 1402 at [686].

14. The identification of the ‘area’ for the purposes of s 47B is more elusive than under s 47A, simply because it is described in an exclusory rather than an inclusory way. In Neowarra [2003]FCA 1402 Sundberg J at [721] said that –

    ‘in such a case as the present it means the particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished’.

    I respectfully agree.

15. It is the nature of the extinguishing act or acts which informs the identification of the area or areas within the claim area upon which s 47B (if otherwise applicable) may operate. It is not the claim area itself, although in certain circumstances the claim area and the ‘area’ to which s 47B refers may entirely overlap. The finding about whether that ‘area’ was occupied at the time of the relevant application then becomes a matter of fact to be determined upon the whole of the evidence.

    Occupation

16. The dispute in submissions was about what amounts to occupation of the area. The Territory pointed out that neither s 47A(1)(c) nor s 47B(1)(c) refer to occupation of part only of the relevant area. In Western Australia v Ward (2000) 99 FCR 316 at [449], it was said by Beaumont and von Doussa JJ in the context of s 47A that a broad view should be taken of the word ‘occupy’, so that it would be satisfied by use of the land for the reserved purpose ‘as and when that person wishes to do so’, even if the person is rarely present on the land. Essential elements of occupation, according to that decision, are some occasional physical presence on the land, for s 47A some relevant usage of the land in accordance with the grant, or for s 47B some relevant usage of it consistent with ‘the way of life, habits, customs and usages of the group’ (per Olney J in Hayes v Northern Territory (1999) 97 FCR 31 at [162]), and that the activity be permitted. The single judge decisions in Rubibi Community v Western Australia (2001) 112 FCR 409 at [182]; Passi on behalf of the Meriam People v Queensland [2001] FCA 697 at [29]; Daniel at [938] and Neowarra [2003] FCA 1402 are consistent with that view.

17. I have no reason not to follow those decisions, and I do so.  They were commented upon with apparent approval by the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Waranungu, Wakaya Native Title Claim Group [2005] FCAFC 135 (Alyawarr FC) at [193]-[195].

18. Proof of occupation is a question of fact.  So much is now clear:  see Alyawarr FC at [196]. There may therefore be matters of degree to be assessed, more so in relation to s 47B. Evidence to prove occupation of the particular land administration area may not be confined to what happens or has happened on that area. The particular administration area may, in a practical sense, be part of a wider area which the claimant group (or some of them) utilise in a way which amounts to occupation of that total area including the particular land administration area. At the other end of the scale, occupation need not involve intensive use of all parts of the particular land administration area. Use of parts of it, whether by residence, visits, use of roads, activities, or in other ways, may reveal occupation of that area even though not every piece of that area has been the subject of such elements. Evidence going to proof of connection may therefore be relevant to proof of particular occupation, but a finding of connection will not necessarily lead to a finding of contemporary occupation at the time of the application.

19. I do not accept that occupation may be simply ‘rights based’. In the case of s 47A, the existence of the relevant grant and its terms may be very significant evidence going to occupation. Very little more may be required to take the additional step of being satisfied about occupation. In the case of s 47B, there is unlikely to be such an instrument. Underlying s 47B is that, in particular circumstances where native title rights and interests existed or would exist but for extinguishment, extinguishment is to be disregarded. On its face, it does not equate the existence of those rights and interests with occupation. Section 47B(1)(c) is intended to add a further qualifying condition to its operation. Consequently, the fact of there being (if there were) native title rights and interests over a claim area including an area to which s 47B might apply would not, in my view, of itself establish occupation. Occupancy involves more than that. Of course, depending upon the relative sizes of the claim area and of the area to which s 47B might apply, the evidence going to establish native title rights and interests may also prove occupation in particular circumstances.

20. Ultimately, ‘occupation’ is a complex question of fact to be decided upon the whole of the evidence and in accordance with the decisions referred to.  No particular fact or facts must be shown to demonstrate occupation; it is an assessment to be made upon the whole of the evidence.

21. I agree with the Territory’s submission that the process to be adopted in this matter (if I had determined the existence of native title rights and interests) would have started with addressing each ‘C’ site in the claim area separately. In respect of each, it would then have been necessary to determine whether s 47B(1)(b) applied to any part or parts of that particular site, and then in respect of each part or parts of that particular site to decide as a matter of fact whether those areas (the part or parts of the particular site to which s 47B may apply) were occupied by one or more members of the native title claim group. The evidence to which regard might be had in determining those issues, but particularly that concerning occupation, would not need to be confined to that about use of the particular area or areas.

    Whether Section 47A and Section 47B apply to pre 30 September 1998 Applications

22. The DCC submitted that s 47A and s 47B do not apply at all to native title determination applications made prior to 30 September 1998, when those provisions were inserted in the NT Act by the amending Act. Both s 47A(1)(b) and s 47B(1)(b) provide that one of the criteria to be met, if those sections are to apply, is that a certain status of the particular area should exist ‘when the application is made’. The argument, put shortly, was that as various of the applications were made before 30 September 1998, s 47A and s 47B did not then exist and so cannot be relied upon by the applicants in respect of those applications.

23. The first applicants and the Territory disputed that contention. The first applicants contended that the sections generally applied whenever the applications were made. The Territory contended they applied to applications whenever made, but with effect only from 30 September 1998. It submitted that ‘there appears to be little doubt’ that s 47A and s 47B can operate in respect of the native title determination applications made prior to 30 September 1998, but only from that date.

24. The status of many sites, or parts of sites, in the claim area altered between the time the particular application was made and 30 September 1998, as the Claim Area Table indicates.  There were a number of freehold and leasehold grants affecting parts of the claim area in the periods from the time certain of the applications were made up to 30 September 1998.  The status of those intermediate grants may therefore be affected, depending upon whether the Territory’s submission or that of the first applicants is correct.

25. There is nothing in the detailed transitional provisions in Sch 5 to the amending Act directly addressing the issue. Part 3 of Sch 5 directs that applications previously made to the Native Title Registrar are taken to have been made to the Federal Court, and Pt 9 directs then that such applications are to be treated as having been made to the Court under the NT Act as amended by the 1998 amending Act. That does not, however, directly indicate that such applications are to be treated as having been made to the Federal Court on 30 September 1998 so that, by that device, s 47A and s 47B would not be seen to have a retrospective effect.

26. I consider the transitional provisions referred to do indicate an intention for applications in existence at 30 September 1998 to continue, adapted legislatively to the regime introduced by the amending Act. It is consistent with that structure, the Territory submitted, that from 30 September 1998 the provisions of s 47A and 47B should be applied to such applications as if they were taken to have been made at 30 September 1998.

27. That is the view taken at first instance by several judges of the Court.  Nicholson J in Daniel at [930] and [958], and Sundberg J in Neowarra [2003] FCA 1402 at [697] and [720], applied s 47A and s 47B in circumstances where the application preceded the enactment of those sections. I did the same in Alyawarr at [314]. In none of those cases did the issue of intervening grants apparently arise.

28. The general rule, of course, is that an amendment to an enactment which may affect substantive rights or interests, unless the contrary intention clearly appears, should not be given retrospective effect so as to alter substantive rights and interests already determined under the law:  see Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ; Mathieson v Burton (1971) 124 CLR 1 at 22 per Gibbs J.

29. In my view, there is no clear indication that s 47A and s 47B were intended to have a retrospective effect. The introduction of legislation intended to have that effect is likely to have been specifically remarked upon in the transitional provisions. That is more clearly so when the amending Act introduced extensive other amendments which included the regime under Div 2B of Pt 2 of the NT Act, and the transitional provisions dealing with them. I do not consider that the decision of the Full Court in State of Western Australia v Strickland [2000] FCA 652 directs a different result. It concerned the Native Title Registrar’s obligations under s 190C of the NT Act in respect of the registration of a second claim over the same area. The context and purpose of the provision is quite different. The decision did not involve the potential alteration of established rights and interests retrospectively.

30. Section 11 of the NT Act was said by the first applicants to support their contention. I do not think it does. It may be accepted that native title is not able to be extinguished contrary to the NT Act. The effect of alleged extinguishing acts prior to 30 September 1998 is to be determined according to the Act as it stood prior to that date, and the effect of alleged extinguishing acts after that date is to be determined according to the Act including s 47A and s 47B. In fact, as the parties all pointed out, it is only those grants made between the commencement or making of an application and 30 September 1998 whose effect might be altered by the competing submissions of the first applicants and the Territory.

31. However, I consider there are contextual reasons to accept the submission of the first respondent. In my view, it is unlikely that the amending Act was intended to create a hybrid category of grants which escaped the operation of s 47B altogether. It was a matter of deliberate drafting that the transitional provisions did not deem the applications to be taken as having been made to the Federal Court as having been so made at 30 September 1998. That could readily have been done. The intention of s 47B, if it applies, is to render the extinguishing effect of the creation of ‘prior’ interests to be disregarded. I have found below that a prior interest must be one created before the application was made. If s 47B deemed the application (at least for its purposes) to have been made at 30 September 1998, then the intermediate grants would have given rise to prior interests. The alternative, which in my view has been adopted, is to deem the application to have been made to the Federal Court but not to affect the date it was made. That way, there is no special category of intermediate grants which fall between the arms of operation of s 47B. Had such a special category been intended, it could have readily been recognised and provided for.

    ‘Prior interest’

32. Sections 47A(2) and (3) and 47B(2) and (3), if they apply, direct that the extinguishing effect of certain ‘prior’ interests be disregarded. The Territory and the DCC contended that a ‘prior interest’ is one which was created before the making of the relevant application. The first applicants contended that it may include an interest created after the date when the application was made and before any determination of native title, as well as an interest current at the time of the relevant application.

33. In my view, a ‘prior interest’ must be one created before the making of the application. That is the meaning to be derived from the context. Both s 47A(1) and s 47B(1) dictate their application by reference to circumstances at the date when the relevant application was made. It would follow that their effect, if they apply, is to operate at the same point in time. Both s 47A(2) and s 47B(2), have as their introductory words ‘[f]or all purposes under this Act in relation to the application …’. Those words further point to the extinguishing effect of those sections applying to interests which arose before the date of the application. In addition, as s 47(2)(b) refers to ‘any other’ prior interest, the interest referred to in s 47(2)(a) may also inform the meaning of ‘prior’; it does so by identifying an interest which must have existed before the application was made. I do not see anything in the decision in Erubam Le (Darnley Islanders) #1 v State of Queensland (2003) 134 FCR 155 (Erubam Le) to the contrary.

1. I do not consider that s 47B(3) leads to any different conclusion. It preserves the validity of the creation of any prior interest, or the interest of the Crown in any public works. It does not thereby tend to support the view that s 47B generally applies to interests created after the application was made and before 30 September 1998. The contrary would appear to be the case by reason of the use of the term ‘prior interest’ which (as I have found above) refers to an interest created before the making of the relevant application.

   Whether s 47B can apply to land within the Municipality of Darwin

2. The DCC was constituted as a body corporate under s 30 of the Local Government Ordinance 1954 (NT).  The Municipality of Darwin was constituted and defined under s 8(1) of that Ordinance on 28 June 1957.  The DCC is the municipal council for the Municipality of Darwin.

3. The Town of Darwin was constituted and proclaimed on 27 June 1923.  It was duly gazetted.  Its area has been extended from time to time.  Presently, most of the claim area is within its municipal area, and so subject to the powers of the DCC under the Local Government Act 1993 (NT).

4. The DCC has exercised those powers and performed its function by its by-Laws, and by the construction, establishment, maintenance and operation of various works, including roadworks. It submitted those works are public works within the meaning of s 253 of the NT Act. It has also held tenure of various kinds within its municipal area. Presently it holds fee simple interest in twelve of the sites on the Claim Area List.

5. The DCC contended that s 47B does not apply within its municipal area. It also contended that, even if s 47B did apply, it does not cause the extinguishing effects of public works to be disregarded. It relied on Daniel [970] and Erubam Le respectively for those propositions. If s 47B does not so apply to its municipal area, or to those parts of its municipal area within the proclaimed Towns of Darwin, Sanderson and Nightcliff, any areas within those boundaries which have been subject to a previous exclusive possession act are, it contended, excluded from the application of s 47B so that it would not operate in those municipal areas to direct certain extinguishing acts to be disregarded.

6. Section 47B(1)(b)(ii) relevantly provides that the section applies only if, at the time of the application, the relevant area was not covered by ‘a reservation, proclamation … conferred by the Crown … under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose’.

   
   

7. The proclamation of the Town of Darwin was made on 27 June 1927.  The Town of Nightcliff was constituted and proclaimed on 10 March 1949 by proclamation under the Crown Lands Ordinance 1949 and also duly gazetted. The Town of Sanderson was constituted and proclaimed on 23 June 1972 by proclamation under that Ordinance and duly gazetted. Section 17 of the Acts Interpretation Act 1901 (Cth) would apply to remove any doubt that the three proclamations (and those extending the boundaries of the areas of those towns) are proclamations to which s 47B(1)(b)(ii) may apply.

8. The several proclamations do not expressly require that the areas constituting those towns should be ‘used for public purposes or for a particular purpose’.  Each proclamation set aside the land so proclaimed ‘as town lands’ and, in my view, clearly then connoted the use of that land as towns.

9. I accept the submissions of the first applicants that the purpose requirement in s 47B(1)(b)(ii) applies to any form of instrument by which the area is set aside. There was no firm submission to the contrary. There is no apparent reason why the legislature would have intended to apply the purpose requirement to some only of the instruments to which the subsection might apply. Its underlying thesis appears to be that land used or to be used for particular purposes should not be affected by the operation of s 47B, that is that the extinguishing effect of the instrument should not be disregarded and the public purposes or the particular purpose of the grant effected by the instrument should be fulfilled.

10. The first applicants and the DCC disagreed as to whether the relevant instrument under s 47B(1)(b)(ii) must itself provide that the land be used for public purposes or for a particular purpose. The DCC contended that the purpose may be apparent from another source, such as the enactment under which the relevant instruments (as presently relevant, the proclamations) were made.

11. I agree with the submission of the DCC. Section 47B(1)(b)(ii) does not require the proposed use to be dictated by the terms of the relevant instrument. As noted above, that may be contrasted with the use of the word ‘expressly’ in s 47A(1)(b)(ii). Nevertheless, it is plain that s 47B is intended to apply except where the proposed use which falls within its terms involved a permanent or long term element. It is not intended to apply in circumstances where, at the option of the beneficiary of the instrument, the use of the relevant area may be readily altered. Consequently, in my view, the qualifying purpose must clearly emerge either from the relevant instrument or from the legislative or regulatory structure under which the relevant instrument was able to be made.

12. The present issue concerns whether the proclamations of parts of the claim area, by which they were ‘set apart for towns’, brings the areas the subject of those proclamations within s 47B(1)(b)(ii) so that s 47B would not apply in those areas. If that were so, it would not have the consequence that native title rights and interests could not be established within a town area. That may be contrasted with the position under the ALR Act: see s 3(1) of that Act defining ‘unalienated Crown Land’. It would have the effect, however, that any extinguishing acts within the area of a town could not be disregarded as s 47B would otherwise direct.

13. I note that in Alyawarr, I found that s 47B may apply to a declared township (at [311]). The respondents in that case do not appear to have argued to the contrary. In Daniel, Nicholson J at [970] held that s 47B had no application within the defined boundaries of a township. Although, as the first respondent points out, that conclusion was not critical to his Honour’s decision about the status of that claim in the Karratha township, it was a considered conclusion.

14. The debate, for present purposes, has been resolved by the Full Court decision in Alyawarr FC.  The Court (Wilcox, French and Weinberg JJ) at [187] concluded that

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

    Section 23B(9C)

15. The DCC contended that grants of land to it in fee simple are previous exclusive possession acts, notwithstanding s 23B(9C) of the definition of that term.

16. Section 23B(9C) says that a grant ‘to or in the Crown in any capacity or a statutory authority’ results in the grant not being a previous exclusive possession act unless (relevantly) apart from the NT Act the grant extinguished native title in relation to the area the subject of the grant.

17. The first applicants and the DCC are agreed that it is a ‘statutory authority’, so that those grants are not previous exclusive possession acts unless they extinguished native title in relation to these areas apart from the NT Act. The DCC says the grants had that effect at common law, either by the grants or by usage consequent upon the grants (the latter step being taken to enliven the exception in s 23B(9C)(b)). The Territory submitted that the DCC was not caught within s 23B(9C) at all.

18. Section 253 of the NT Act defines ‘statutory authority’ to include any authority or body established by a law of the Territory other than a general law allowing incorporation as a company or body corporate. I have noted the statutory foundation for the DCC above. It was constituted as a body corporate under s 30 of the Local Government Ordinance 1954.  That Ordinance is not a general law allowing incorporation as a company or a body corporate.

19. Section 8 of Pt III of that Ordinance empowered the Minister to constitute towns to be municipalities and to fix the boundaries for them. The administration of a municipality was contemplated as being charged to a council, and the Ordinance provided for councils to be elected or appointed under it. The DCC was then first elected on 29 June 1957. Part IV of the Ordinance prescribed certain features of councils, including by s 30 that they shall be bodies corporate and by s 32 as to their composition.

20. In my view, the DCC is not a statutory authority as defined in the NT Act. It is not constituted as a body corporate established by the Ordinance, but (as the Territory submitted) under it.  The use of the word ‘established’ points to the need for the enactment itself to create the statutory authority.  An example was addressed by the High Court in Ward concerning the Conservation Land Corporation, established by s 27 of the Conservation Commission Act 1980 (NT).  The Local Government Ordinance 1954, and now the Local Government Act 1993 (NT) provide merely for the creation of certain entities in respect of municipalities constituted by the Minister in the exercise of powers under that legislation.

    
    

21. In view of that conclusion, the further submissions of the Territory focusing upon the definition of ‘statutory authority’, as being ‘in relation to the Crown in right of the Commonwealth, a State or a Territory’, do not need to be addressed.  Those words have also led to certain decisions of the Court which have taken the view that certain municipal corporations are not ‘statutory corporations’ as defined:  see Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178 at 191-192; Daniel [541].

22. I note that the definition of ‘public work’ in s 253 of the NT Act extends to certain works carried out ‘on behalf of the Crown, or a local government body or other statutory authority of the Crown’. The consequence of my conclusion on this issue does not therefore affect the significance of the public works carried out by the DCC.

    General

23. I have indicated above why I have not fully addressed the arguments concerning extinguishment. There are many other matters of principle which have been the subject of submissions, and which have then flowed into the very thorough submissions applying the relevant provisions of the NT Act to the facts as they exist or are said to exist. Where the line was to be drawn between those issues of principlewhich could be addressed discretely from factual matters is obviously debatable. I have erred on the side of conservatism or caution.

24. I should however briefly refer to the position on extinguishment taken by other than the principle parties.

    The Other Respondents

25. Telstra Corporation Ltd (Telstra) or its predecessors have exercised statutory powers to instal telecommunications facilities on Crown land and on privately owned land throughout Australia since 1901, including in the Darwin area.

26. It established the Karama Mobile Phone Tower in the Darwin area.  That is not on a site within the present claim area.  It has also installed extensive cabling over many years, including within parts of the claim area.  That cabling was validly installed, pursuant to the statutory powers of Telstra or its predecessors from time to time.

27. Telstra does not contend that the installation of its cabling extinguished such native title as may exist or have existed in the claim area. It correctly contends, however, that its interests prevail over any such native title rights and interests by reason of s 44H of the NT Act and the common law. Were I to be proceeding to make a determination of native title, the determination would include a declaration that the native title would be subject to the laws of the Territory and of the Commonwealth of Australia and at common law. I would also include a declaration that the other interests in the determination area which s 225(c) of the NT Act requires to be described include the interests of Telstra as the owner and operator of the telecommunications cabling within the claim area, together with its statutory rights, and the rights of access of its employees and agents in the performance of their duties in respect of the claim area. I would further declare that Telstra’s rights prevail over the native title rights and interests of the applicants.

28. NT Gas Pty Ltd as Trustee of the Amadeus Gas Trust is the licensee of two pipelines which traverse parts of the claim area. The licences provide for a safety and access corridor. It is also the offeree of Crown Leases over certain sites within the claim area where the Tivendale and Berrimah Pressure Reducing Stations are located. It contends that those acts extinguish such native title rights and interests as might otherwise have existed over the areas they occupy, in particular any right to control access to those areas. The first applicants dispute that the offer of Crown Leases does, as a matter of fact, have that effect. There is also evidence that much of the pipelined areas are on public roads, the construction of which (as Category A past acts for the purposes of the NT Act) wholly extinguished any native title in relation to those roads and adjacent areas. As the first applicants point out, having regard to the width of the corridor for one of the licences, it will only marginally be within the public road area. They accept, at least in respect of the Channel Island Road Reserve, that public works extinguished any native title over the area of the public works. Otherwise, there are disputed questions of fact and degree, arising partly from the claim that there is uncertainty in the location of the pipelines in relation to parts of the claim area. It is unnecessary to address those particular matters.

29. NT Gas Distribution Pty Ltd is the owner of the pipeline between Darwin and Berrimah the subject of one of the licences to NT Gas Pty Ltd.  It claims that the grant of the land over which that pipeline is laid, and over the land where the extension of that pipeline to further areas is also laid (of which it too is the owner and operator), extinguished any native title over those areas, and in particular it claims that any native title rights to exclusively control access to those areas has been extinguished or suspended to the extent of the inconsistency.  The first applicants contend that the evidence does not support those assertions.  It is not necessary to finally decide those issues.  Nor is it necessary to address the significance of public works over those parts of the claim area where that respondent says its pipelines extend.

30. The first applicants acknowledge that the land about which Defence Housing Authority, Delfin Chase Pty Ltd and ANZ Banking Group Ltd are concerned cannot be the subject of a favourable determination of native title.  Any native title over that land, Lot 4640 Palmerston, has been extinguished.  It is the site described as C193 in the Claim Area List.

31. AFANT, in addition to adopting the Territory’s submission on extinguishment, made submissions about tidal waters in the claim area.  It contends that the public right to fish and to navigate in tidal waters, discussed in Yarmirr at [60] and [94], meant that the first applicants could no longer properly maintain a right to exclude from the tidal waters all but those exercising those public rights. Whether such a claimed right may be available is a matter of doubt: see the High Court in Ward at [388]; Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425; Gumana v Northern Territory of Australia (2005) 141 FCR 457; Alyawarr FC.  As I am not making a determination of native title rights and interests, I do not have to finally determine the issue.

32. Finally, Giuseppe Maugeri, a person holding mining tenements within Section 1817 Hundred of Ayers (Claim Area C2314 in the Claim Area List) made submissions which, in relevant respects, reflected those put by the Territory on extinguishment.  The submissions adopted a somewhat broader brush to certain of the issues.  It is not necessary to consider them in detail.

    ORDERS

33. For the reasons given, in my judgment the application must be dismissed. I think that is a consequence of the application of s 223(1)(a) and (b) of the NT Act to the facts as I have found them to be. It is a conclusion which is not intended to, and should not, be seen as meaning that the Larrakia people do not presently exist as a society in the Darwin area with a structure of rules and practices directing their affairs. They clearly do. My conclusion is based upon the finding that, by reason of past events, those rules and practices are not ‘traditional’ in the sense required by s 223(1)(a) and as explained by the High Court, particularly in Yorta Yorta.

I certify that the preceding nine hundred and thirty-eight (938) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:            13 April 2006

Counsel for the First Applicants:

D Parsons QC with R Blowes

Solicitor for the First Applicants:

Ron Levy, Northern Land Council

Counsel for the Second Applicants:

K Quall appeared in person

Counsel for the First Respondent:

T Pauling QC with V Hughston SC and S Brownhill

Solicitor for the First Respondent:

Solicitor for the Northern Territory

Counsel for the Fifth Respondent:

G Hiley QC with R Webb

Solicitor for the Fifth Respondent:

Cridlands Lawyers

Counsel for the Sixth Respondent:

B O’Loughlin

Solicitor for the Sixth Respondent:

Withnal Maley & Co.

Solicitors for Defence Housing Authority, Delfin Chase Pty Ltd and ANZ Banking Corporation Ltd:

Ward Keller

Solicitor for Conservation Land Council:

Clayton Utz

Solicitor for CSR Limited and CSR Readymix (Australia) Pty Ltd:

Minter Ellison

Solicitors for Diamond Leisure Pty Ltd and Fernbank Pty Ltd:

Ward Keller

Solicitors for NT Gas Pty Ltd and NT Gas Distribution Pty Ltd

Ward Keller

Solicitors for Telstra Corporation:

Blake Dawson Waldron

Giuseppe Maugeri

In Person

Dates of Hearing:

2, 3, 4, 5, 6, 23, 24,25, 26,27 and 30 September 2002

1, 2, 3, 4, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25 October 2002

10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27 and 28 February 2003

3, 4, 5, 6 and 7 March 2003

9, 10, 11, 14, 16, 17, 18, 21, 22 and 23 July 2003

16, 17, 18, 19, 22 and 23 September 2004

21, 22, 23, 24, 26 and 27 June 2004

Date of Last Submissions:

7 December 2004

Date of Judgment:

13 April 2006