Rrumburriya Borroloola Claim Group v Northern Territory - [2016] FCA 776

FEDERAL COURT OF AUSTRALIA
Rrumburriya Borroloola Claim Group v Northern Territory of Australia
[2016] FCA 776

File numbers: NTD 6014 of 2000
NTD 6003 of 2003

Judge: MANSFIELD J

Date of judgment: 30 June 2016

Catchwords:
NATIVE TITLE – native title rights and interests claimed – where the native title rights and interests claimed, subject to one qualification, are not in dispute – right to take resources – whether right is an unconfined right to take resources of the claim area – whether right to take resources is confined to personal or communal purposes of a domestic or subsistence nature, but not for commercial or business purposes – question of fact on the evidence – exchange of goods for economic utilitarian purposes – exchange of goods for religious, ceremonial or political purposes

NATIVE TITLE – extinguishment – non-tidal waters and subterranean waters – legislation asserting Crown rights in and/or powers over waters in lakes, springs and watercourses – whether native title right of exclusive possession is relevantly inconsistent with a limitation on the use of particular kinds of water – whether non-exclusive rights may properly be read as limited by legislation in a manner that does not abrogate any right vested in the Crown – land areas, bed or subsoil where there is, or may be, water from time to time – appropriate formulation and/or qualification of the right

Legislation:
Native Title Act 1993 (Cth)

Lands Acquisition Act (NT)

Aboriginal Land Rights (NT) Act 1975(NT)

Control of Roads Act (NT)

Racial Discrimination Act 1975 (Cth)

Road Districts Act 1919 (WA)

Control of Roads Act 1979 (Cth)

Native Title Bill 1993 (Cth)

Racial Discrimination Act 1975 (Cth)

Native Title (Queensland) Act 1993 (Qld)

Validation (Native Title) Act 1994 (NT)

Control of Roads Act 1986 (NT)

Planning Act (NT)

Control of Waters Ordinance 1938 (NT)

Water Act (NT)

Rights in Water and Irrigation Act 1914 (WA)

Native Title Amendment Bill (No 2) 1997 (Cth)

Crown Lands Act (NT)

Aboriginal Councils and Associations Act 1976 (Cth)

Cases cited:
Western Australia v Ward (2002) 213 CLR 1
Durrayjaba v Northern Territory [2015] FCA 1242
Charlie v Northern Territory [2015] FCA 1237
Peter v Northern Territory [2015] FCA 1238
McDinny v Northern Territory [2015] FCA 1239
Rory v Northern Territory [2015] FCA 1240
Rory v Northern Territory [2015] FCA 1241
Jurluba v Northern Territory [2015] FCA 1248
Ngajapa v Northern Territory [2015] FCA 1249
Jack v Northern Territory [2015] FCA 1250
Miller v Northern Territory [2015] FCA 1251
Green v Northern Territory [2015] FCA 1252
Brown v Northern Territory [2015] FCA 1268
Largut v Northern Territory [2015] FCA 1269
Mabo v Queensland (No 2) (1992) 175 CLR 1
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Sampi v Western Australia [2005] FCA 777
Alyawarr, Kaytete, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539
De Rose v South Australia [2002] FCA 1342
Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548
TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No. 3) [2015] FCA 1359
Bodney v Bennell (2008) 167 FCR 84
Akiba v The Commonwealth (2013) 250 CLR 209
Western Australia v Willis [2015] FCAFC 186
Commonwealth v Yarmirr (1999) 101 FCR 171
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373
Wik Peoples v Queensland (1996) 187 CLR 1
Yanner v Eaton (1999) 201 CLR 351
King v Northern Territory [2007] FCA 1498
Roberts v Northern Territory [2012] FCA 223
Pwerle v Northern Territory [2016] FCA 304
Young v Northern Territory [2011] FCA 583
Brown v Northern Territory [2013] FCA 1082
Lampton on behalf of the Juru People v Queensland [2015] FCA 609
Northern Territory v Alyawarr (2005) 145 FCR 442
Yarmirr v Northern Territory (1998) 82 FCR 533
Akiba v Queensland (No 3) (2010) 204 FCR 1
Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (2012) 204 FCR 260
BP (Deceased) on behalf of the Birriliburu People v Western Australia [2014] FCA 715
Willis v Western Australia (No 2) [2014] FCA 1293
Wandarang, Alawa, Mara and Ngalakan Peoples v Northern Territory [2000] FCA 923; (2000) 177 ALR 512
Ngalakan People v Northern Territory (2001) 112 FCR 148
Harrington-Smith v Western Australia [2007] FCA 31
Gumana v Northern Territory (2005) 141 FCR 457
Harrington-Smith obo the Wongatha People v Western Australia (No 9) [2007] FCA 31
Western Australia v Ward (2000) 99 FCR 316
Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244
Fourmile v Selpam (1997) 80 FCR 151
Daniel v State of Western Australia [2003] FCA 666
Neowarra v Western Australia [2003] FCA 1402
BanjimaPeople v State of Western Australia (No 2) [2013] FCA 866
Doylev State of Queensland [2016] FCA 13
Hayes v Northern Territory [1999] FCA 1248
Re Warumungu Land Claim; Ex parte Attorney-General (NT) (1987)
Western Australia v Brown (2014) CLR 507
Erubam Le (Darnley Islanders) #1 v State of Queensland and Others [2003] FCAFC 227
Gumana v Northern Territory (2007) 158 FCR 349
Gumana v Northern Territory (No. 2) [2005] FCA 1425
Griffiths v Northern Territory (2006) 165 FCR 300
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442
Rubibi Community v Western Australia (2001) 112 FCR 409
Gumana v Northern Territory (No 2) [2005] FCA 1425
Griffiths v Northern Territory (2007) 165 FCR 391
Attorney-General (NT) v Ward (2003) 134 FCR 16
Taylor v Corporation of St Helens (1877) 6 Ch D 264
Coulthard v South Australia (2014) 218 FCR 148
Moses v Western Australia (2007) 160 FCR 148
Risk v Northern Territory [2006] FCA 404
Rubibi Community v Western Australia (No 7) [2006] FCA 459

Dates of hearing: 18-22 January 2016; 15-16 February 2016; 9-11 May 2016

Date of last submissions: 25 May 2016

Registry: Northern Territory

Division: General Division

National Practice Area: Native Title

Category: Catchwords

Number of paragraphs: 495

Counsel for the Applicants: T Keely SC and J Edwards

Solicitor for the Applicants: Northern Land Council

Counsel for the Respondents: S Brownhill SC

Solicitor for the Respondents: Solicitor for the Northern Territory

Counsel for the Commonwealth: J Thomson SC and E Longbottom

Solicitor for the Commonwealth: Australian Government Solicitor

ORDERS

NTD 6014 of 2000

BETWEEN:
ANNIE ISAAC and DINAH NORMAN (on behalf of the Rrumburriya Borroloola Group)

Applicants

AND:
NORTHERN TERRITORY OF AUSTRALIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

30 JUNE 2016

THE COURT ORDERS THAT:
1.The parties do bring in within a period to be specified minutes of the determination and orders to be made to give effect to these reasons for judgment.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS

NTD 6003 of 2003

BETWEEN:
WENDY ROPER, GORDON LANSEN, PHILLIP TIMOTHY,

GRAHAM FRIDAY and MAVIS TIMOTHY (on behalf of the Rrumburriya Borroloola group)
Applicants

AND:
NORTHERN TERRITORY OF AUSTRALIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

BORROLOOLA AMATEUR RACE CLUB INC
Third Respondent

BORROLOOLA COMMUNITY GOVERNMENT COUNCIL
Fourth Respondent

AIR SERVICES AUSTRALIA
Fifth Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

30 JUNE 2016

THE COURT ORDERS THAT:
1.The parties do bring in within a period to be specified minutes of the determination and orders to be made to give effect to these reasons for judgment.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
MANSFIELD J:
INTRODUCTION

These applications for the determination of native title rights and interests in relation to areas within the Township of Borroloola are made under s 61 of the Native Title Act 1993 (Cth) (the NTA). They have been heard together. The evidence has been received on each application. In the course of their conduct, to the credit of the parties, the issues have narrowed to a very specific set of foci.
The application in NTD 6014 of 2000, as ultimately amended, is brought on behalf of the Rrumburriya Borroloola Group in respect of Lots 825 and 826 Town of Borroloola (both being part of Lot 803) containing areas of about 4750 square metres and 9990 square metres respectively. It appears to have been prompted by two notices of proposal of 25 August 2000 and 27 July 2000 respectively under the Lands Acquisition Act (NT) (LAA).
The application in NTD 6003 of 2003, as ultimately amended, is brought on behalf of the same group in respect of the land and waters in the Town of Borroloola (excluding the land claimed in NTD 6014 of 2000).
Thus, whilst the earlier application was brought in response to certain proposed compulsory acquisition notices, the two applications combined cover the whole of the land and waters in the Town of Borroloola. I will call the claim areas combined “the claim area” or “the Town”. I will also refer to the combined applicants as “the Applicants”.
In each application, the persons comprising the native title claim group are the same, and the traditional laws and customs they assert are the same. Subject to the correct identification of the correct claim areas in each application, the terms of the recognition of their claimed native title rights and interests in the Determination sought is the same.
It is accepted that each claim was duly authorised to be made by the persons named as the Applicants under s 251D of the NTA. It is accepted that the relevant group who authorised the claims, the Rrumburriya Borroloola group (the Claim Group) as described in the applications are the Group of Aboriginal peoples who now hold such native title rights and interests as the common law recognises. It is accepted that the Claim Group possesses those rights and interests under traditional laws and customs acknowledged, and traditional customs observed, by their ancestors within the claim area at the time of sovereignty. It is accepted that the Claim Group hold and exercise their traditional rights and interests as the successors to and by transmission from, the Aboriginal society which, at the time of settlement, enjoyed and exercised those traditional laws and customs and rights with respect to the land and waters in the claim area. I have used the term Claim Group, because to an extent it will be necessary to address matters relating to areas adjacent to and in the region of the claim area where the native title rights and interests may not be held, or may not have been held, by precisely the same persons as the Claim Group.
With one qualification, the description of the claimed native title rights and interests in each application is also not in dispute, that is with one qualification it is accepted that the native title rights and interests which the Applicants assert on behalf of the Claim Group are rights and interests which should be recognised by a Determination by the Court on each application.
Hence, subject to the one qualification, the matters required to be satisfied for the purposes of each application would be made out provided the Court was satisfied, on the material made available by the parties, that it was appropriate to do so. See generally Western Australia v Ward (2002) 213 CLR 1 (Ward HC).
The principal issue (other than those arising from the question of extinguishment) arises from the rights and interests claimed by the Applicants on behalf of the Claim Group in each matter.
The Applicants claim that, both at the time of sovereignty and at the present time, the rights and interests possessed by estate group members within the Claim Group in relation to their estate were and are rights and interests:
(1)Where native title has not been extinguished to any extent over the area covered by this application, or where any prior extinguishment must be disregarded, the native title rights and interests claimed comprise the right of the Primary Native Title Holders to possession, occupation, use and enjoyment as against the whole world. This right incorporates the right to access and take for any purpose the resources of the area covered by this application.
(2)Where native title has been partially extinguished over the area covered by this application the native title rights and interests claimed are the following rights of the Primary Native Title Holders:
(a)to access, remain on and use the areas;
(b)to access and to take for any purpose the resources of the areas; and
(c)to protect places, areas and things of traditional significance on the areas.
(3)Where native title has not been extinguished to any extent over the area covered by this application, or where any prior extinguishment must be disregarded, and where native title has been partially extinguished over the area covered by this application the native title rights and interests claimed are also the rights of the Other Native Title Holders:
(d)to access, remain on and use the areas;
(e)to access the resources of the areas.
The issue is as to the extent of the right claimed to take resources for any purpose, and related to it the right to control access to and use of the claim area (in the case of exclusive rights), which is contentious. The right in (b) to access and to take for any purpose the resources of the areas where there has been partial extinguishment is also contentious.
The Northern Territory does not acknowledge or accept that the rights claimed to access, and to take and use for any purpose the resources of the claim area, were at time of sovereignty exercisable for commercial or business purposes, or for any purpose other than for personal or communal purposes of a domestic or subsistence nature. Consequently, the right to take resources, and to the extent to which the right to control access to the claim area carries with it the right to control the taking of resources, are said to be rights which should be expressed not in the terms sought by the Applicants but in the following terms:
(a)to access and to take the resources of the estate, but not for commercial or business purposes, or for any purpose other than personal or communal purposes of a domestic or subsistence nature; and
(b)to control access to and use of the estate and its resources by others, but not for commercial or business purposes or for any purpose other than personal or communal purposes of a domestic or subsistence nature.
The Commonwealth adopted the same position.
Although there was some suggestion in the course of submissions that the Territory (and the Commonwealth) had adopted slightly inconsistent positions between that taken in the exchanged pleadings and in oral submissions, the position is in my view quite clear. There is no element of inconsistency nor any question of the Applicants being taken by surprise by the Territory or by the Commonwealth. Senior counsel for the Territory said on the first day of the hearing:
… there is really only one substantive issue as between the parties and that is the content of the native title right to take resources.
Counsel for the Commonwealth also said at the time that the issue is whether the asserted rights to access and take resources are exercisable for commercial or business purposes, or for any purposes other than those of a personal or communal purpose of a domestic or subsistence nature. Hence, it was explained, the evidence relating to a ceremonial exchange system in interactions between different Aboriginal groups or societies, and the interactions between Aboriginal people (including the Claim Group) and the Macassans, did not inform or illustrate the nature of the right to control access and to take resources from the claim area. Reference is, of course, made to that evidence later in these reasons in considerable detail.
It is also useful to note at this point the contention of senior counsel on behalf of the Applicants that the claimed right is not specifically said to be a right to trade, or a right to access and to take resources for commercial or business purposes, but an unconfined right to take resources and to access and take for any purpose the resources of the claim area.
It is also noted that the Applicants further claim, on behalf of those who enjoy rights and interests in an estate possessed by secondary rights holders that, both at the time of sovereignty and at the present day, they were and are (subject to the rights and interests of the estate group members’ rights and interests) entitled to access and remain on and use the claim area, and to access the resources of the claim area. Both the Territory and the Commonwealth maintain the consistent assertion, that to the extent to which secondary rights holders enjoy native title rights and interests in the claim area, those rights were not at the time of sovereignty and still are not rights exercised or capable of being exercised for commercial or business purposes or for any purpose other than for personal or communal purposes of a domestic or subsistence nature.
As to extinguishment, the claim of the Applicants in each matter is for exclusive native title rights as expressed over the claim area. They acknowledge that some native title rights and interests in respect of certain parts of the claim area have been partially extinguished with the result that only non-exclusive native title rights and interests exist in those parts of the claim area. The issue of extinguishment will be addressed in due course, and its consequences in relation to the expression of the rights and interests enjoyed where there are no longer exclusive native title rights and interests, will largely follow from the Determination to be made in relation to the exclusive areas.
No respondent parties, other than the Territory and the Commonwealth, elected to participate in the hearing or to make any submissions.
BACKGROUND
The claim area and surrounding areas
As in many claims under the NTA in the Northern Territory, the area the subject of the claim, the Town of Borroloola is surrounded by land granted to the traditional owners (as defined in the Aboriginal Land Rights (NT) Act 1975 (ALRA), and now held by the Narwinbi Aboriginal Land Trust. Under the ALRA, only unalienated Crown land was available to be the subject of a claim that the land is held by or on behalf of the traditional owners of that land. The claim area, as a declared township, was ineligible for that purpose.
Surrounding the claim area, there are also areas which were ineligible for grant under the ALRA because of the grant of other interests in that land, principally pastoral interests. It is remarked that the other nearby areas, insofar as they are not addressed in any report by the Aboriginal Land Commissioner under the ALRA, have largely now been recognised by Determinations of the Court as held by the Claim Group, in some cases slightly redefined because of local considerations, under the NTA. The present issue as to the nature and extent of the right to control access to the claim area, and to take and use the resources of the claim area, was not contentious in those determinations: see Durrayjaba v Northern Territory [2015] FCA 1242; Charlie v Northern Territory [2015] FCA 1237; Peter v Northern Territory [2015] FCA 1238; McDinny v Northern Territory [2015] FCA 1239; Rory v Northern Territory [2015] FCA 1240; Rory v Northern Territory [2015] FCA 1241; Jurluba v Northern Territory [2015] FCA 1248; Ngajapa v Northern Territory [2015] FCA 1249; Jack v Northern Territory [2015] FCA 1250; Miller v Northern Territory [2015] FCA 1251; Green v Northern Territory [2015] FCA 1252; Brown v Northern Territory [2015] FCA 1268; Largut v Northern Territory [2015] FCA 1269.

Borroloola lies inland of the south-western corner of the Gulf of Carpentaria. In that section of the Gulf of Carpentaria there is the Sir Edward Pellew group of islands (the larger ones of which are West Island, South-west Island, Centre Island, North Island and Vanderlin Island). There are numerous smaller islands. I will call them collectively the Islands. They are variously proximate to the coastline, which features significant saline coastal flats with mangroves and extensive water channels. Relevantly, for present purposes, the McArthur River flows into the Gulf of Carpentaria by a broad delta of channels proximate to South-west Island and runs inland roughly from the south-west, affected by the tides, for some 40 kms to and past Borroloola. Significantly further upstream, is the McArthur River Mine. The McArthur River flows further upstream from that mine as well. It is not necessary, for present purposes, to describe in any detail the full extent of the water courses in that area flowing into the Gulf of Carpentaria.
The declared Town of Borroloola is very roughly rectangular, and about 2 kms across at its northern point and about 4 kms running north-south. It is somewhat cut off at its south-eastern corner. The Carpentaria Highway runs across the bottom section of the Town, and vertically Robinson Road roughly bisects the Town running north and south.
The McArthur River in the vicinity also runs roughly north and south within the eastern side of the Town.
At its northern extremity, Robinson Road runs into an area called the Mara Camp, adjacent to which is a ceremony ground, on the land of the Narwinbi Aboriginal Land Trust. Shortly before that point, another road runs off to the north-east towards King Ash Road, and then towards the Gulf of Carpentaria itself.
At a point a little above the halfway point (north/south) and on the eastern side of the Town, as the McArthur River flows through the Town, there is an area identified as “Rocky Junction” where Rocky Creek (which flows from within and across the claim area from the west) flows area into the McArthur River.
Further south, there is another junction of the Pear Tree Creek also running partly across the Town from the west and into the McArthur River.
To the east of the McArthur River but still within the Town area are two areas known as Garawa No 1 Camp and Garawa No 2 Camp.
In the course of a view, and evidence given “on-country”, various sites were visited and evidence taken at some of them. The location of those sites, as necessary, will be further described both for the purposes of understanding and appreciating the significance of the evidence given, and of course to an extent because of the issue of extinguishment.
At this point, it is only necessary to note a few other significant features.
To the east of Robinson Road and between McArthur River and Robinson Road in the northern section of the Town is an occupied area known as Yanyula Camp.
The south-western section of the Town contains the air strip. It is partly the area of the formerly declared Borroloola Township (a description used to distinguish it from the Town of Borroloola) which is, as addressed later in these reasons, significant in relation to an issue of extinguishment.
Apart from the on-country evidence, the evidence taken at Borroloola was given in what is called the Rrumburriya building, adjacent to Marlene Timothy’s house, which is just to the east of Robinson Road and above the northern tip of the air strip, about half-way between the top and the bottom of the Town as declared. From that point, returning to Robinson Road and travelling north, Robinson Road crosses over Rocky Creek.
Somewhat further north and, by turning to the west, there is an area known as the “Subdivision” about which there was considerable evidence, and which includes Mulholland Street and other streets. Again, too, certain areas in the Subdivision are addressed when considering the issues of extinguishment.
About halfway between Robinson Road and Rocky Junction (the junction of Rocky Creek and the McArthur River) along Rocky Creek is a site known as Bunu Bunu, on the northern side of Rocky Creek and accessed by a roadway from Robinson Road.
To the east of Yanyula Camp and to the west of McArthur River, about halfway between Robinson Road and the McArthur River is an area identified as a ceremony ground.
In the northernmost section of the Town on the western side of Robinson Road is a police station, providing access up a steep hill to a water tank. It provides a significant panoramic view looking down and south and south-east over the Town. It is one of the sites where evidence was taken.
The western extent of Rocky Creek as it flows into the Town is served by a further creek called Two Dollar Creek, when it is running.
On the continuation of the Carpentaria Highway from the west, it runs across the bottom section of the Town and then extends to run north-east by Wollogorang. Still within the Town adjacent to that road is a site called Warralungku, where the Arts Centre is located.
Access to Garawa No 1 Camp and Garawa No 2 Camp is by a basic roadway running from the Wollogorang road and slightly north. Evidence was given at one site in that area which itself provides an elevated view to the west back towards the Town. At Warralungku, also called the Warralungku (Burketown) Crossing, significant evidence was given about that area, as well as of things within that area.
There is also a small creek running from the McArthur River as it continues roughly south or south-west from the southern part of the Town.
The uncontested facts
On the basis of the admissions made by the exchanged pleadings in relation to connection, and as was made clear in the course of submissions by all parties, the Court was invited to proceed largely on an uncontested basis. Rather than rehearse the evidence which supports those acknowledgments, it is sufficient for the Court to indicate that, upon the whole of the evidence, and taking into account the role and responsibility of both the Territory and the Commonwealth before acknowledging such matters, those uncontested issues are proved to the satisfaction of the Court. Consequently, the Court makes the following findings which will facilitate a precise focus on the principal area of dispute.
The acquisition of sovereignty over the claim area occurred on 7 February 1788.
Significant non-indigenous settlement of the claim area and claim region did not occur until the 1880s.
At the time of sovereignty, the Binbinka, Gudanji, Yanyuwa, Garawa, Mara and Wilangara language groups were or were part of a body of persons (the original society) who were united in and by their acknowledgement and observance of a body of laws and customs. They occupied the claim area and a wider adjacent area.
The laws and customs of the original society included that primary rights or interests in relation to particular areas of land or waters (estates) were ordinarily possessed through descent from one’s father and father’s father, mother’s father, father’s mother and mother’s mother (estate groups) and included the right to access, remain and use the estate.
The laws and customs of the original society included that certain other rights and interests were, subject to the rights and interests of estate group members, held in an estate by the following classes of persons:
(i)members of the estate groups associated with neighbouring estates;
(ii)spouses of estate group members; and
(iii)persons who were spiritually conceived on the estate but who were not members of the estate group associated with that estate.
The laws and customs of the original society included that strangers could be refused access, or have conditions imposed on access, to sites in an estate or be accompanied by a person who possessed rights or interests in and knowledge and authority in respect of the estate. Strangers were ideally required to ask permission from such a person.
The laws and customs of the original society included that access to some places on an estate was restricted on the basis of age, gender and/or ritual status, and/or knowledge or authority in respect of the estate.
The members of the original society held beliefs about the Dreamtime and about the spiritual properties of particular Dreamings and sites, as were appropriate to their age, gender and/or ritual status, and/or knowledge or authority. The Dreamtime was believed to be an ancient formative period during which the world was inhabited by mythical beings (Dreamings) whose travels and actions generated human life and instituted rules of social interaction, including those relevant to descent, kinship, ritual and social propriety and who were responsible for the existence and form of the physical landscape.
After the time of sovereignty, certain demographic changes occurred and affected the people of the claim area and claim region, including that:
(i)the Binbinka estate groups ceased to function as such and the Binbinka and Wilangara language groups ceased to exist as identifiable groups; and
(ii)the original claim area estate group either died out or became severely depleted.
As a result of such demographic changes, there were changes to the composition of the claim area estate group, including the inclusion in that group of certain members of the estate group associated with Vanderlin Island. Such changes took place in accordance with the laws and customs of the original society (subject to any relevant adaptation thereof that had occurred by that time).
From the time of sovereignty to the present day, the members of the original claim area estate group holding the primary rights and interests, the members of the estate groups associated with neighbouring estates and the spouses of members of the original claim area estate group and each generation of their successors (including the Claim Group) have transmitted the laws and customs of the original society (subject to such adaptation as has occurred) by word of mouth and common practice and have acknowledged and observed those laws and customs.
Gudanji, Yanyuwa, Garawa and Mara language groups continue to be or to be part of a body of persons who are united in and by its acknowledgment and observance of a body of laws and customs.
The laws acknowledged and the customs observed by the persons referred to above are both traditional and “traditional laws and customs” within the meaning of s 223(1)(a) of the NTA. Those traditional laws and customs derive from a normative system that has had a continuous existence and vitality since the time of sovereignty. Further, the members of the claim group have continued to acknowledge and observe those traditional laws and customs, in particular in relation to the claim area, without any substantial interruption.
By those traditional laws and customs, the members of the Claim Group have a connection with the land and waters of the claim area within the meaning of s 223(1)(b) of the NTA and they and their antecedents have substantially maintained that connection since the time of sovereignty.
Certain primary native title rights and interests in relation to the claim area are possessed by members of the Rrumburriya Borroloola group, that is by the Claim Group.
Certain (non-primary) native title rights and interests in relation to the claim area are possessed, subject to the rights and interests of the Rrumburriya Borroloola group, by persons who are members of one of classes of persons who comprise the secondary rights holders as described above.
Under the relevant traditional laws and customs and subject to:
(i)a disputed qualification in relation to the utilisation of the resources of the claim area; and
(ii)other qualifications that are at least in substance a matter of agreement;
the nature and extent of the rights and interests possessed in relation to the claim area are the rights of possession, occupation, use and enjoyment as against the whole world.
LEGAL FRAMEWORK
It is important not to lose sight of the relevant statutory provisions relating to the determination of claims under the NTA. The applicable principles are not really contentious. The legal debate, to the extent it is a live one, concerns matters of onus of proof and characterisation of the contentious rights on the evidence.
Section 225(b) of the NTA requires a determination of native title to include a determination of the nature and extent of the native title rights and interests in relation to the determination area.
Section 223(1) of the NTA defines “native title” and “native title rights and interests” as follows:
Common law rights and interests
(1)The expression native title or native title rights and interests means the communal, group, or individual rights and interest of Aboriginal peoples … 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 …; and
(b)the Aboriginal peoples …, 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.
As the Commonwealth pointed out, while subs (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 (Mabo No 2) at 70, it is to the terms of the NTA that primary regard must be had in any determination of native title: see Ward HC per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [16].
The starting point for the matter is that upon the acquisition of sovereignty on 7 February 1788, the Crown acquired radical title, but that the rights and interests held by Indigenous people in land or waters under their traditional laws and customs were recognized by, and became enforceable under, the common law: Mabo (No 2) at 15 per Mason CJ and McHugh J, at 52 per Brennan J and at 109 per Deane and Gaudron JJ; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [77] per Gleeson CJ, Gummow and Hayne JJ (Yorta Yorta).
Thus, as was observed by the majority in Yorta Yorta:
[43]… It is important to recognize that the rights and interests concerned originate in a normative system, and to recognize some consequences that follow from the Crown’s assertion of sovereignty. Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.
[44]That is not to deny that the new legal order recognized then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognized by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognized included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be “significant adaptations”. But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognized after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.
The Territory and the Commonwealth emphasised the concluding sentence of each of those paragraphs. Thus, they say, while it is to be accepted that rights and interests, which are the products of laws and customs which adapt or develop, may themselves change without losing the entitlement to recognition, in these claims the proper enquiry is whether the claimed native title right to access and take for any purpose the resources of the area finds its origin in pre-sovereignty law and custom.
It is clear enough that the Applicants have the burden of proving that there was a traditional right to take resources from the land as claimed, and to prove to the extent they can, the particular resources which were taken and the specific circumstances and manner in which that right was exercised. The burden of proof is the civil standard, that is, on the balance of probabilities.
The Commonwealth stresses the potential difficulties in demonstrating the content of traditional law and custom, as explained by the majority in Yorta Yorta where Gleeson CJ, Gummow and Hayne JJ said at [80]:
It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.
The evidence of the Aboriginal witnesses about their traditional laws and customs and their rights and responsibilities with respect to land and waters deriving from them is of the greatest importance in a native title claim: Sampi v Western Australia [2005] FCA 777 at [48] per French J (which aspect of the judgment was not overturned on appeal in Sampi v Western Australia [2010] FCAFC 26); see also Alyawarr, Kaytete, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 (Alyawarr SJ) at [89] per Mansfield J and De Rose v South Australia [2002] FCA 1342 at [351] per O’Loughlin J. In addition, as here, anthropological evidence will provide considerable assistance to the determination of the issues. As observed by the Court in Alyawarr SJ at [89]:
… anthropological evidence may provide a framework for understanding the primary evidence of Aboriginal witnesses in respect of the acknowledgment and observance of traditional laws, customs and practices … Not only may anthropological evidence observe and record matters relevant to informing the court as to the social organization of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organization with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.

Caution must be taken in considering anthropological evidence if it is based on hearsay statements from claimants living at the time of the trial and who were either not called to give evidence or who did not give evidence in terms of the statements contained in the anthropological report. Those circumstances will be relevant to the weight to be accorded to such evidence: Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548 at [2] and [26] per Cooper J; see also TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No. 3) [2015] FCA 1359 at [9] and [10] per Rares J and Bodney v Bennell (2008) 167 FCR 84 (Bodney FC) at [92] and [93] per Finn J, Sundberg and Mansfield JJ.
Given the real nature of the contentious and complex issue in these applications, all parties submitted that the proper approach to the complex fact finding, that is the factual issue ultimately required to be resolved and which may be informed by consideration of a series of primary or other qualitative factual findings, would be informed by consideration of a series of earlier decisions of the High Court and of this Court, largely in a chronological sequence and ending with the decisions in Akiba v The Commonwealth (2013) 250 CLR 209 (Akiba HC) and in Western Australia v Willis [2015] FCAFC 186 (Pilki FC).
An appropriate theme running through all the decisions is that the existence and content of native title is a question of fact, to be ascertained by evidence as to the laws and customs of the applicants, on a case by case basis. It is therefore highly fact specific: Commonwealth v Yarmirr (1999) 101 FCR 171 at [16] per Beaumont and von Doussa JJ, citing Mabo No 2 at 58 and 61, Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 452 and Wik Peoples v Queensland (1996) 187 CLR 1 at 169. Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the applicant group; the ambit of the native title right is a finding of law: Yanner v Eaton (1999) 201 CLR 351 at [109] per Gummow J.
The relevant task is to find how rights and interests possessed under traditional law and custom can properly find expression in common law terms: Ward HC at [89].
Subject to the question of extinguishment, evidence of activities on land or how land is used is relevant to the extent that it focuses attention upon the right pursuant to which the land is used: Ward HC at [78]. The exercise of native title rights or interests may constitute powerful evidence of both their existence and their content: Yorta Yorta at [84].
The Applicants’ case is that, at the time of acquisition of sovereignty, their ancestors held rights to access and take for any purpose the resources of the estate, and to control access to and use of the estate and its resources by others. Whether that can be established depends upon the whole of the evidence.
The Territory says, relying on Pilki FC at [38]-[39] per Dowsett J and at [112] per Jagot J, that if the relevant traditional law and custom at the time of sovereignty distinguished between use of land and/or resources for commercial or business purposes and use of land and/or resources for purposes of a domestic or subsistence nature, there would be a foundation for defining rights by reference to such purposes. It acknowledges that, if at the time of sovereignty land and/or resources were not used for commercial or business purposes, the search for such a distinction will necessarily be unsuccessful. However, it says, it does not follow from the absence of such a distinction that a “purpose-less” right is established, again relying on Pilki FC per Dowsett J at [37]. It is also said that, if traditional law and custom at the time of sovereignty placed constraints upon the use of resources taken, which are either directly or indirectly against use for commercial or business purposes, there would also be a foundation for defining rights by reference to such purposes: Pilki FC at [113] per Jagot J.
The Territory also pointed out that, where the native title rights and interests are non-exclusive because of the extinguishment by the grant of pastoral leases (or other tenures not conferring rights of exclusive possession), there is a loss of the right to control access to that land: Ward HC at [92], [417] and [422] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
It is convenient to address, and put aside, one further matter advanced by the Territory.
It is about the significance of the fact that past consent determinations, both in the Northern Territory and Queensland, have not recognised a right to take and use resources except as a limited one. That is a correct description of the traditional right recognised by a number of consent determinations.
Since King v Northern Territory [2007] FCA 1498, it has been common in the Northern Territory to determine a native title right of possession, occupation, use and enjoyment of an area to the exclusion of all others, and/or a non-exclusive native title right to share or exchange subsistence and other traditional resources obtained on or from the claim area, but to provide that the native title rights and interests are for the personal or communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose: see also for example, Rory v Northern Territory [2015] FCA 1240; Roberts v Northern Territory [2012] FCA 223; Pwerle v Northern Territory [2016] FCA 304; Young v Northern Territory [2011] FCA 583; Brown v Northern Territory [2013] FCA 1082. A similar approach has been taken in Queensland, where non-exclusive native title rights have been expressed as rights to hunt, fish and gather or take and use water, or take, use, share and exchange natural resources, but only “for personal, domestic and non-commercial communal purposes”: see for example, Lampton on behalf of the Juru People v Queensland [2015] FCA 609.
The terms “commercial”, “business”, “domestic” and “subsistence” are routinely not defined in determinations of native title. Dowsett J in Pilki FC at [9] observed that they are not terms susceptible of precise definition. However, the Territory says, the terms “commercial” and “business” clearly contemplate enterprise or activity in which a transaction or a system is directed, via buying and selling or barter or exchange of goods, to the making of profit or material gain and the latter two terms “domestic” and “subsistence” are used in contrast to refer to provision for a person’s or a community’s sustenance and necessities of life.
It also points out that the Full Court in Northern Territory v Alyawarr (2005) 145 FCR 442 (Alyawarr FC) held (at [156]-[157]) that evidence limited to evidence of sharing and exchanging (or “swapping”) ochre, spears, boomerangs, feathers and hair belts for personal use; evidence of sharing and exchanging goods in a ceremonial context, which witnesses described as “like a thank you” or “to pay him off”; and evidence of the collection of beans to make beads sold to a shop for purchase by tourists, did not support a finding of a native title right to trade in the resources of the claim area. The Court re-defined the determined right as “the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters”.
It also points out that in Yarmirr v Northern Territory (1998) 82 FCR 533 (Yarmirr SJ), Olney J rejected a claimed right to trade in the resources of the waters and land of the clan’s estate, notwithstanding evidence that, prior to sovereignty, ancestors of the applicants engaged in a “form of trade” both amongst themselves and with the Macassan trepangers. His Honour held (at 588) that the evidence suggested no more than that the Macassans sought and received permission to take trepang from the waters of the claim area, and that it fell short of establishing that the applicants’ forbears had traded with the Macassans. His Honour also found (at 588) that there was no evidence to suggest that trade in the resources of the claim area formed part of the traditional laws and customs of the applicants’ ancestors.
To the extent that those decisions reflect terms agreed between the parties, they do not in my view provide any assistance in determining the present applications. There may have been a range of factors taken into account by the applicant and by the relevant State or Territory leading to the agreed terms for the consent determination.
Alyawarr FC involved an appeal on a broad range of issues: firstly concerning the proper definition of the native title holders; secondly concerning the native title rights and interests as recognized in the determination; and thirdly concerning the application of s 47B of the NTA to a township in the particular circumstances. The particular passage relied on by the Territory concerns the second broad issue, and within it the relevant subheading is “the native title rights and interests – the right to trade”. It comprises only a short section of the Full Court’s reasons at [152]-[157]. The terms of the determination, relevantly, recognized: the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters.
In that case, the Territory submitted that the right to trade is not a right or interest in relation to land or waters: see at [152]. The Full Court in Alywarr FC rejected that proposition at [153]-[156].
The Territory then said that the right to trade in resources necessarily implies a native title right to exclusive possession, and that the evidence did not support any right to trade: see at [156]. The summary of the evidence, the Territory contended in that case, made no reference at all to any commercial or profit motives or any level of organized business operation.
The Full Court (Wilcox, French and Weinberg JJ) referred to evidence of the asserted right to use the natural resources of the claim area including water, trees, bark medicines, soakages, sacred sites and other things including ochre from various places in the claim area. At [157], their Honours concluded:
In the circumstances it is difficult to see how this evidence was capable of supporting a finding of a native title right to trade in the resources of the area. There appears to have been no evidentiary support for this aspect of the determination.
Hence, the refinement of the determination as noted.
The decision at first instance in Alyawarr SJ is also quite brief in dealing with this topic. The claimed right, as recognised in the determination (but varied on the appeal) is set out in [67]. It was separate from claimed rights to use the resources of the land: see at [66] and [67]. The finding of a right to trade is then made at [160] on the evidence (as summarised to the Full Court) and without any detailed consideration of what evidence might in particular have supported the “trading in” resources.
In those circumstances, I do not think that decision on that topic can be viewed as establishing any particular principle. It is a decision based upon an analysis of the available evidence.
Yarmirr SJ concerned a claim to have recognized native title rights and interests in the seas in the region of Croker Island in the Northern Territory. In the recital of the issues, Olney J at 539-540 did not refer to an issue specifically as to whether, either as a matter of principle or as a matter of fact, there could be or was a native title right to trade in the resources of the sea, as distinct from a right to use and enjoy the marine resources. Nevertheless, the claimed right to trade was said at 586 to be a “separate right of some importance”.
The Full Court in Alyawarr FC at [154]-[155] explained that that decision concerned evidence of an activity, but not evidence of the exercise of a right in relation to the [land and] waters of the claim area. As their Honours then said, there was no evidence establishing an historic trade between the forbears of the Croker Island claim group and the Macassans, and no direct evidence since European contact of any sale or exchange in the resources of the waters in the claim area, or suggesting that such trade formed part of the traditional customs of their ancestors. As the Full Court pointed out, there was no finding of a right or interest in relation to the land or waters of the claim area. The finding in Yarmirr SJ at 588 was that there was, on that evidence, no basis for a finding of consensual dealings with the Macassans, nor any evidence of any dealing with others by “sale or exchange” in the sustenance resources of the waters.
Again, in my view, that decision reflects particular findings of fact on the evidence. It does not set down any direct principle which necessarily leads to the consequence that, without regard to the evidence in these claims, the claimed right under consideration should be rejected.
Indeed, it is fair to say that the Territory and the Commonwealth did not pitch their contentions at that high level.
Having referred to the contentions, and having considered certain of the authorities referred to, I now revert to the guidance provided by the High Court, and certain of the more recent decisions specifically addressing issues such as the present.
In Ward HC at [14] the plurality said:
As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual: In Milirrpum v Nabalco Pty Ltd (129), Blackburn J said that: “the fundamental truth about the aboriginals’ relationship to the land is what whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”. It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture.
Their Honours then pointed out and explained the difficulty of expressing that relationship in terms of rights and interests: “The spiritual or religious is translated into the legal”.
As to the right to speak for country, their Honours said at [88]-[89]:
It may be accepted that, as counsel for the Ningarmara claimants submitted in reply, “a core concept of traditional law and custom [is] the right to be asked permission and to ‘speak for country’”. It is the rights under traditional law and custom to be asked permission and to “speak for country” that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others (cf s 225(e)). The expression of these rights and interest in these terms reflects ow only the content of a right to be asked permission about how and by whom country may be used, but also the common law’s concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.
The expression “possession, occupation, use and enjoyment … to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of “possession” of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify ow rights and interests possessed under traditional law and custom can properly find expression in common law terms.
It is therefore the task of the Court to identify, from the evidence, the rights and interests possessed under traditional laws and customs and then to address how they can properly be expressed in common law terms. The observations at [88] tend to support the position put by the Territory, and accepted by the Applicants, that the task of doing that is more complex where non-exclusive rights and interests only are established.
It is the common position that the two most directly informative decisions, because they concerned a similar issue to the present one, are the decisions of Finn J in Akiba v Queensland (No 3) (2010) 204 FCR 1 (Akiba SJ) and of North J in Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714 (Pilki SJ). Akiba SJ was reversed by the Full Court of this Court by majority: Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (2012) 204 FCR 260, but the decision at first instance was restored by the High Court: Akiba HC. An appeal from Pilki SJ was dismissed by the Full Court: Pilki FC. The Full Court as constituted by Dowsett, Jagot and Barker JJ delivered separate judgments, but each agreed on the outcome of the appeal.
Pilki SJ was heard and determined by North J with another case BP (Deceased) on behalf of the Birriliburu People v Western Australia [2014] FCA 715 (Birriliburu). Following the decision in Pilki SJ, a determination was made by McKerracher J in terms potentially relevant for present purposes: Willis v Western Australia (No 2) [2014] FCA 1293 (Pilki D). No similar step has apparently yet been taken in Birriliburu, so it is not necessary to refer to it in any detail.
Each of those decisions in Pilki SJ and in Birriliburu related to a remote and arid part of Western Australia, associated in each case with the Western Desert Cultural Bloc. The Pilki claim concerned a remote part of the Western Desert region situated between the Nullabor Plain and the Great Victoria Desert. The application area was infertile, saline and flat, though it contained some distinct environmental zones within it. In each case, the applicants claimed the right under traditional law and custom to “access resources and to take for any purpose resources of the area”. In each case, the State did not accept that there was any traditional right to access and take resources for commercial purposes. It accepted that the claimants were entitled to take the resources of that area, but only for the purpose of satisfying their personal, domestic or non-commercial needs, including social, cultural, religious, spiritual and ceremonial needs and by way of sharing and exchange. This was the only contentious issue in either case: Pilki SJ at [4]-[6], [10]; Birriliburu at [15]-[17], [21].
The determination in Pilki D makes it clear that exclusive rights were determined in respect of the whole of the determination area. Order 3 provides that “the nature and extent of the native title rights and interests is the right of possession, occupation, use and enjoyment of the Determination Area as against the whole world including the right to access and take for any purpose the resources of the land and waters”.
That determination was made, having regard to the claimed rights (as here, in relation to areas of exclusive native title) to “access resources and to take for any purpose resources of the area”.
As North J said in Pilki SJ at [7], the question whether there was a right under traditional law and custom to access and take resources of the area for commercial purposes depended on a “proper understanding of the evidence”, and his Honour described it as an “evidentiary exercise” informed by ss 223(1) and 225(b) of the NTA.
The relevant issue being a question of fact, it is not really helpful to refer to the evidence in that case from the four Aboriginal witnesses (which his Honour described at [31] as “not expansive”). The State did not challenge the evidence of the Indigenous witnesses that their traditional laws and customs gave them “complete control over their country, including all that was on, in and under it”: Pilki SJ at [47]. But North J concluded at [46] that any gaps in the elaboration of the relevant laws and customs were addressed by the evidence of the anthropologist Dr Cane.

The position is not so clear in these matters, by reason firstly of the strongly competing views of the two anthropologists who gave evidence: Mr Stead called on behalf of the applicants and Professor Sansom called on behalf of the Territory, and secondly because of the contention of the Territory and the Commonwealth that the use of Mr Stead’s views, if accepted, should be confined to areas of his personal knowledge or his expertise based upon appropriate materials, but excluding any “hearsay” information, that is factual information which might have been provided by the direct evidence of an Aboriginal person. In any event, I observe that what was or might have been a traditional law or custom of the Western Desert society in relation to “commercial” activities does not routinely transport to the present Claim Group. Nor is it to be assumed that the ethnographical, historical and other material to which Dr Cane referred, even though his references appear to extend to a much wider area of Australia than the claim area of the Pilki People or of the wider Western Desert society of Aboriginal people, is applicable to the present application.
It is however of note that, in the section of his reasons referring to the contentions of the parties, North J in Pilki SJ at [104] referred to the contention of the State that it was necessary for the Pilki People to prove that commercial activity had been conducted by them. The nature of that submission was described at [104]-[106] as follows:
The State contended that there was no evidence of such activity in the present case. The evidence would need to show a regular and systematic regime of commercial exploitation undertaken as a right under traditional laws and customs. The State accepted that there was evidence of a right to take resources to share, and to engage in gift exchange, but contended that this was not evidence of a traditional right to exploit resources commercially.
Further, the State said that the evidence established that the taking of resources was constrained by gender, status, personal or community need, or that it was the exercise of a right and responsibility to care for land. These constraints demonstrated that the right to access and take resources was not a right to access and take for any purpose.
Other evidence of trade, so it was argued, was far removed from commercial exploitation.
In the circumstances of that case, where (it said) there was no such evidence, the State submitted that the Pilki People were forced to “rely on trading as an incident of an underlying ownership of the land”, but to do so was inconsistent with Ward HC.
As to that contention, North J at [118] and [119] said:
Contrary to the argument of the State, it is not necessary as a matter of logic to prove that activity in conformity with traditional laws and customs has taken place in order to establish that a right exists. In many cases, proof of activities undertaken pursuant to laws or customs will assist in proving the existence of the right. But evidence of the activity is not necessary. Thus, if the applicants had not shown that they traditionally accessed and took resources for commercial purposes, they could still show that they had the right to do so if there were traditional laws or customs which gave them such a right. In the same way, the holders of freehold title do not need to show that they have leased out their properties to prove that they have the right to do so. If there is evidence of witnesses accepted by the Court that there are traditional laws and customs which give a right to access and take for any purpose the resources of the country, then the right is established even if there is no evidence of trading activity.
…
Thus, without evidence of actual trading activity, if the evidence of traditional laws or customs which give a right to access and take for any purpose the resources of the country is accepted by the Court, then the right would be established.
Jagot J in Pilki FC at [99]-[100] expressly agreed with that observation.
In my view, the difference between the existence of a right under traditional laws and customs is (as North J said) logically separate from the fact of its exercise. The nature and extent of an activity may inform the existence of a right, but it is the possession of the right, not its exercise, which is the proper question. That point was forcefully made by the High Court in Yorta Yorta per Gleeson CJ, Gummow and Hayne JJ at [84], albeit in a somewhat different context.
In Pilki FC, Western Australia took issue with the second step taken by North J of relying on the anthropological evidence. It argued that:
(1)the right to take resources for any purposes, including commercial purposes, could not be established by broad rights or ownership or dominion over land, rather than having to be proved more specifically; and
(2)the same right (a “use right”) could not be proved without proof that the activity the subject of the right has ever been conducted, or was conducted, over the land or waters in question.
Dowsett J at [7] noted those contentions, and observed at [8] that the State’s contentions used the word “commercial” in a way which did not include “sharing” or “exchange” or “barter” (the latter word otherwise requiring a commercial rather than a personal, domestic or cultural or spiritual purpose). After referring to the evidence in detail, and to the reasons for the decision at first instance, Dowsett J at [35] said that he was not satisfied that the evidence showed that the ancestors of the Pilki People, prior to first European contact, “took resources form the claim area at all, let alone for commercial purposes”. However, his Honour said at [36], it was not critical to the claim that the Pilki People prove that resources were taken for commercial purposes (a conclusion also reached by Jagot J). He there said:
The question will always be whether the evidence satisfies the court, on the balance of probabilities, that a claimed right or interest is recognised by traditional law and custom and has not been abandoned.
That step involved rejection of the State’s first contention.
Jagot J’s reasons largely address what her Honour perceived, and rejected, as a qualitative attack on the findings made by the primary judge based on the evidence. It is significant to note what her Honour said at [112] in relation to the appeal:
Sixth, the submissions in support of the appeal seek to draw what, in the specific context of this case, is an arbitrary distinction between the use of land for some purposes (domestic, communal, spiritual, ceremonial and exchange) and use for another purpose (commercial). The distinction is arbitrary because virtually all of the pleaded facts about the Pilki People were accepted (as summarized above) including their right to exploit land for, apparently, any purpose other than a purpose described as commercial. Yet nothing in the evidence supported any distinction in traditional law or custom, or any difference in activity that was or could properly be inferred to have been carried out in accordance with traditional law and custom, between use of land for purposes other than commercial purposes and use for commercial purposes. This lack of distinction, in common with the lack of any prohibition to which the primary judge referred at [124], is to be understood in the context of the evidence that was available – being evidence about the continued observance and meaning of the Tjukurrpa and its significance to the relationship of the Pilki People to their land, the opportunistic nature of these societies in terms of resource exploitation, the location of the claim area and its context in a larger overall system of desert societies, the relationship between the claim area and the two vast and ancient trade routes, and the limited resources, being the hardwoods, of the claim area and the likelihood of them being exploited for trade.
Barker J at [115] agreed with those conclusions.
As to the that proposition, Dowsett J said at [16]:
As I understand the law, it is not a sufficient basis for such an inference that the claim group claims to “own” the claim area, and that which is on or under it. On the other hand, the claim group need not prove a specific canon of traditional law and custom, dealing expressly with taking resources for commercial purposes. In effect the claim group must show that had the question of taking for commercial purposes arisen at any relevant time, traditional law and custom would have permitted the claim group to act in the relevant way.
Having reviewed the evidence, his Honour concluded at [44] that:
Given the history of trade in the wider Western Desert area, one must ask why the resources of the claim area, such as they were and are, would not have been used for trade or commercial purposes. There is no obvious answer to that question. It is more likely that the absence of evidence of trade in resources from this area is attributable to the lack of resources than to any limitation upon the general right to take and use them. The claim to be entitled to take resources from the claim area should not be seen as a claim to lesser rights and interests than those exercised in other parts of the Western Desert by the larger group of which the claim group is part. In my view the primary Judge’s conclusion was correct.
That conclusion is also reflected in Jagot J’s conclusion at [113].
In short, in Pilki FC Dowsett J considered that there was evidence to support the finding of use of resources, that the Pilki People (like others) were “opportunistic exploiters” of what was available to them, and there was nothing to suggest that, in their traditional laws and customs, there was any distinction drawn about the use of land for one or other purposes, in particular to exclude other than commercial purposes.
Barker J in Pilki FC took a somewhat different approach in his consideration of the appeal. Having regard to ss 223(1) and 225 of the NTA, to their origin in the judgment of Brennan J in Mabo No 2 at 59-60 and 70, and to the plurality judgment in Ward HC at [89]-[93] and to the joint judgment in Yorta Yorta at [40], he said that the finding that native title rights and interests are exclusive will not generally satisfactorily elucidate the particular rights and interests which are possessed by the relevant Aboriginal people. He concluded at [154], consistently with what is said earlier in these reasons and in other decisions, that the question in any case as to what rights should be determined under the NTA ultimately is an evidentiary one.
As to the right to access and take resources, his Honour noted the finding of Finn J in Akiba SJ at [847], and the rejection by Finn J of the submission at [751]-[752] that such a right could only be determined if the claimants established exclusive native title rights (which they did not assert in that case). Reflecting the general conclusion referred to in the preceding paragraph of these reasons that the issue is an evidentiary one, his Honour said at [150] that:
The point ultimately is that, in Akiba TJ, the trial judge found that there was, on the evidence of the claimants’ traditional laws and customs led before him, an unrestricted right to use resources. The question of the purposes for which resources were to be used was irrelevant to the existence of that right.
His Honour also noted that that understanding was accepted when the matter subsequently went on appeal to the High Court in Akiba HC.
Barker J further noted that French CJ and Crennan J at [21] said in Akiba HC that the right may be exercised for commercial or non-commercial purposes and that “[t]he right is one thing; the exercise of it for a particular purpose is another” with the rider:
That proposition does not exclude the possibility that a native title right or interest arising under a particular set of traditional laws and customs might be defined by reference to its exercise for a limited purpose. That is not this case. The right defined by … the Determination, which, save for the extinguishment question, was not in dispute, was a right “to take for any purpose resources in the native title areas”.
Reference was also made to the judgment of the plurality (Hayne, Kiefel and Bell JJ) in Akiba HC at [66]-[68] to the same effect.
The subsequent analysis by Barker J of the reasons of the primary judge in Pilki SJ, and of the evidence, led his Honour to observe at [169] that ordinarily evidence of the exercise of a right between sovereignty (or the early European presence) and the present would be adduced. He added at [170]:
While it might, at least in theory, be possible for a court to be satisfied that the particular right contended for is proved without any such activity evidence, it must be said that, without any evidence of the exercise of a right, a court would ordinarily be reluctant to find that the right exists. It is one thing for claimants to say that, under their laws and customs, they own everything on, under and above their traditional country, and that their “ownership” rights include the right to take any resources and use them as they wish, and another thing to support what might otherwise be at risk of being untreated as a mere assertion with corroborating evidence. While it may be said that the failure to adduce activity evidence in many, if not most cases, is likely to prove fatal to claimants’ contentions that they possess certain rights, it should also be said that each case will ultimately depend on the nature and quality – relevance and probative value – of the evidence led.
Thus, as he said, it is a matter of careful consideration of the evidence in a particular case. The mere assertion of “ownership” or that the land “belongs” to a particular group is but a beginning to the inquiry as to the nature of the traditional rights and interests: per Barker J in Pilki FC at [183]. Then, his analysis of the evidence was found to support the conclusion of the primary judge at [212], although taken alone the evidence of the four Aboriginal witnesses would not have satisfied his Honour of that conclusion.
In Akiba SJ, because the claim area was seaward of the high water mark, it was accepted that any native title rights and interests were non-exclusive.
As in these two applications, the claimed rights were broadly framed to include rights to access the resources and to take the resources of the sea: Akiba SJ at [512]; and to a livelihood based upon accessing and taking resources: at [522]. The evidence referred to at [523]-[524] shows that taking was subject to the injunction against waste and to conserve resources for the next generation, and in some instances the manner of taking.
Finn J at [526] observed that taking the resources of the sea, and using them in trade, has a long and well chronicled history, so the fundamental resource-related right of use was the right to take, and the use of what was taken was unconstrained, except by internal communal rules: at [529]. His Honour found that there was a native title right to access and take marine resources, not circumscribed by the use to be made of the resource taken. That was so, even though it was accepted at [847] that, where the taking is for a discrete purpose, the activity may be treated as a distinct incident of the right for extinguishment purposes: at [847].
In Akiba SJ, it was held that that native title right had not been extinguished by the relevant fisheries legistration of Queensland. That was the principal focus of the decision in Akiba HC. In the course of its consideration of that issue, Hayne, Kiefel and Bell J at [66] remarked:
The relevant native title right that was found to exist was a right to access and to take resources for sale or trade as an incident of the right that had been identified. The purpose which the holder of that right may have had for exercising the right on a particular occasion was not an incident of the right; it was simply a circumstance attending its exercise.
French CJ and Crennan J at [21] made observations to the same general effect.
The consideration of the authorities to which the Court was referred leads to the conclusion that the nature and extent of the native title rights and interests is to be determined upon the careful consideration of the whole of the evidence.
It is to that task that the Court now turns. It may be desirable to refer back to those decisions, or some of them, depending upon the findings which are made.
To inform that process, it is noted that the Territory and the Commonwealth say that the decision in Pilki FC, on the facts, was made in the context of the right to take resources for personal or communal purposes having been acknowledged (as here) and the anthropological evidence of trading in resources was uncontradicted. The Court has already remarked upon that feature, compared to the present circumstances.
It is also said by the Territory and the Commonwealth that the mere assertion of a right to take resources for any purposes, of itself, is not sufficient to conclude that the claimed right existed “where there was no supporting evidence of the custom or activity which gave rise to the right”. That it is necessary to show a traditional right to take resources is not contentious. The evidence of the exercise of such a right may inform the answer to that question. Expert evidence may also inform the answer to that question (as was the case in Pilki SJ and in Pilki FC). Ultimately, and in my view uncontentiously, it is said that each case will depend on the nature and quality of the evidence adduced.
I do not think that the decisions in Akiba SJ or in Lardil v Queensland [2004] FCA 298 (Lardil) in themselves take the evidentiary challenge confronting the applicants on these applications any further.
Akiba SJ clearly resulted from findings of fact in quite different circumstances, including “activity evidence”.
Lardil was a decision finding a right to take resources was confined, so as to exclude doing so for commercial purposes, notwithstanding evidence of “ownership” of the seas and the sea resources. Again, the focus was on what the evidence in that case showed, or did not show. Cooper J at [180]-[181] said that the evidence showed the right to take resources from the sea was confined to taking only that which was sufficient to satisfy immediate needs, and that there was no evidence of a traditional right to take and use those resources “for organized trade or commercial exploitation”. It is, of course, clear from the references above that constraints upon the taking of resources having regard to preservation of the resources or, depending upon their significance, requiring specific approval to do so, or cultural restrictions on the manner of taking resources, do not routinely or necessarily mean that the right to take resources is confined to doing so for domestic or personal non-commercial use: see Akiba SJ at [523]-[524] and [529].
Nor do I accept that observations of Gummow J in Yanner v Eaton (1999) 201 CLR 351 at [72] or of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta at [47]-[50] or [75]-[77] further inform the nature of the factual inquiry. At [84] of that judgment, their Honours said:
First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.

In my view, that statement – made in the context of addressing whether there had been an interruption in the use or enjoyment of native title rights and interests – also does not require any different approach.
THE WITNESSES
(1) Lay witnesses
Written witness statements and oral evidence was given from six Aboriginal people, and a further Aboriginal man, Billy Miller gave oral evidence only. Five of these witnesses are both senior and knowledgeable about the relevant traditional laws and customs of the Claim Group. The other of these witnesses, Wendy (Polly) Roper, is also knowledgeable about such matters, albeit that she is still a relatively young woman. Each of these six witnesses, save for Jack Green, is a member of the Claim Group. Jack Green, being a Garawa man, is a member of the relevant society.
Graham Friday was born in Borroloola in 1959 and is now 57 years old. Graham’s father was Short Friday, a Yanyuwa man who was ngimarringki for South West Island, and his mother was Larrlya, who was a Rrumburriya woman who was ngimarringki for Vanderlin Island and other nearby islands and for the country in and around the town of Borroloola. Graham grew up at Marlandarri Camp on the eastern side of the McArthur River. He has lived in Borroloola for most of his life and is now one of the senior jungkayi for the claim area and for the Rrumburriya estate of which it forms part.
Warren Timothy was born in Tennant Creek and is 49 years old. He is a grandson of Tim Rakawurlma and a son of Punch Walala Timothy, who was a Yanyuwa and Rrumburriya man with ngimarringki country on Vanderlin Island. Warren’s mother was Norman Timothy, whose ngimarringki country was West Island, which is Mara and Yanyuwa country. As a result of events before Warren was born, his grandfather Tim, his father, he and various others were or are ngimarringki for the Rrumburriya estate that includes the claim area. Warren has lived in Borroloola for most of his life.
Wendy (Polly) Roper was born in Katherine Hospital. Although only 34 years old, she speaks the Yanyuwa and Garawa languages. Wendy is a daughter of Borroloola Willy, a very senior Rrumburriya man who was ngimarringki for the claim area and the Rrumburriya country around it, as were his ancestors going back for many years. Wendy’s father died when she was young, so she was raised with the McDinny family at Wandangula (Police Lagoon), which is located on the same Rrumburriya country as the town of Borroloola. Her mother was a Garawa woman, Janie Charlie. Wendy has spent most of her life living at Wandangula, but has also frequently visited Borroloola and stayed at different places there for extended periods with family members.
Jack Green was born in 1953 and is a 62 year-old Garawa man who was born in a creek bed on Soudan Station near the Northern Territory and Queensland border. His mingirringgi (a Garawa word which means the same thing as the Yanyuwa word ngimarringki) country Warrul forms part of the Garawa ALT area at Robinson River and also extends on to Spring Creek North pastoral lease. His ngimarringki country Mambu is located in the headwaters of a tributary of the Wearyan River. Jack moved to Borroloola in the early 1970s and has lived there ever since, save for some times away working. Jack has a small outstation just to the west of Borroloola on Two Dollar Creek and is a board member of the Northern Territory’s Aboriginal Areas Protection Authority.
Dinah Norman was born in a canoe in 1933 near her father’s father’s (ganggu) country on south-west Island (Warnarrwarnarr). Dinah’s father was Tall Friday who was a cousin-brother of Short Friday. Dinah’s mother was a Rrumburriya woman, Minnie a-Wulbulinimarra. Dinah is a very senior Yanyuwa woman and a very senior jungkayi for the Borroloola town area and the Rrumburriya country nearby. She has lived in Borroloola for most of her life.
Mavis Timothy is 68 years old and a Yanyuwa Rrumburriya woman. She is a granddaughter of Vanderlin Jack (who was photographed by Spencer and Gillen at the beginning of the 20^th century), a daughter of Tim Rakuwurlma / Old Tim (a man referred to a lot in the evidence) and is an auntie of Warren Timothy. Mavis’ mother, Judy a-Margawi, was ngimarringki for south-west Island and Mavis is jungkayi for this country. Mavis is ngimarringki for Vanderlin Island and other nearby islands and for the country in and around the town of Borroloola. She was born and grew up at Malandarri. Apart from three periods working away from Borroloola, Mavis has always lived in Borroloola, including when working for 30 years as a health worker in the town.
Each of these witnesses identified their main teachers in relation to cultural matters. These teachers were generally at least one generation above the witness, sometimes two generations.
As noted, in addition to the six primary witnesses, Billy Miller gave brief oral evidence on two occasions. Billy is the oldest male jungkayi for the Rrumburriya country of which the claim area forms part.
The statements of evidence as tendered did not include those parts of them to which objection had been taken or which were the subject of a request that the evidence be led orally
There was no cross-examination directed to showing that any one of those witnesses was other than a truthful and reliable witness. There was no submission that I should not accept their evidence. The submission was really that, accepting their evidence, it does not go far enough (with or without the expert evidence or such of it as I might prefer and accept as reliable, and even with the other material) to make out the contentious right in the terms claimed.
I have no hesitation in accepting all of those witnesses as both truthful and reliable. In particular, to the extent that they gave evidence of what they had seen or heard from their elders now deceased relevant to the existence at settlement of a traditional right to control access to the claim area and to take and use the resources of the claim area, and of the continuity of those traditional rights and the manner of their exercise of those rights, what they have said will of course be of significance.
The content or focus for the reference to the evidence generally which now follows is twofold. As appears in the uncontested or agreed facts and agreed issues, the existence or otherwise of the claimed rights, extending to “commercial activities” or being confined in the manner urged by the Territory and the Commonwealth, may depend first upon the evidence as to the extent and character of the dealings with the Macassans at settlement, and secondly upon the evidence as to the extent and character of the dealings with other Aboriginal groups (which includes for ceremonial or cultural purposes) at settlement.
(2) Anthropological evidence
The two expert witnesses Mr Stead and Professor Sansom are both very experienced and well-respected anthropologists.
Mr Stead has very long, hands-on experience of studying and working with Aboriginal people in the Northern Territory. He has over thirty years’ experience working as an applied anthropologist. This experience dates back to 1972 and includes working as a Patrol Officer / Community Advisor for the Welfare Branch, Department of Aboriginal Affairs at various locations in the Northern Territory from 1972 to 1977. He was then a part-time historical/anthropological researcher in 1979 and an anthropologist (mining issues) from 1980 to 1983 for the Central Land Council in 1979, and an anthropologist for the Aboriginal Sacred Sites Protection Authority from 1983 to 1984 before returning to the Central Land Council from 1984 to 1986. He was then appointed as Manager, Anthropology and Land Tenure Branch, for the Northern Land Council from 1991 to 2003, and then as Chief Executive Officer of AAPA from 2003 to 2008. He has worked also as a consultant anthropologist from 1986 to 1991, and currently is performing such work.
Mr Stead has been the author or co-author of over thirty reports in relation to claims under the ALRA or native title anthropological reports and associated documents for various Aboriginal organisations, the Aboriginal Land Commissioner and the Federal Court. He has provided written reports to the Northern Territory and Commonwealth Governments on native title and ALRA matters. He has given expert anthropological evidence in ALRA land claim hearings and in native title hearings, as well as in prosecutions by the Northern Territory Aboriginal Sacred Sites Protection Authority.
He has, importantly, had substantial hands-on experience with the Borroloola region and the general surrounding region. He lived in Borroloola for approximately six or seven months during 1975/76, and then until the end of 1976 commuting there on a regular basis from another Aboriginal community, Ali Curung. During that period he undertook approximately 70 weeks’ field work for a range of projects, including the St Vidgeon Station native title claim, the Urapunga Township native title claim, McArthur River and Bing Bong native title issues and various ALRA claims. He has explained that in detail in an appendix to his Report: “Applied Anthropology Field Work: Gulf of Carpentaria/Roper River/McArthur River Region”. The St Vidgeon Station claim was heard by Olney J under the name Wandarang, Alawa, Mara and Ngalakan Peoples v Northern Territory [2000] FCA 923; (2000) 177 ALR 512. The Urapunga Township claim was heard by O’Loughlin J under the name Ngalakan People v Northern Territory (2001) 112 FCR 148.
Mr Stead also knew well Old Tim Rakawurlma (who featured prominently in the Aboriginal evidence), his brother Banjo and their sons and daughters, as well as other prominent Aboriginal people in Borroloola such as Musso Harvey (who was chairman of AAPA), Gordon Lansen and Roy Hammer (who was also chairman of AAPA and a senior jungkayi for men-only ceremonies in Borroloola). Musso Harvey was mingirringgi for the town area. Gordon Lansen was also ngimarringki for the Borroloola town area. Roy Hammer was a Mara man who was married into Yanyuwa. Musso Harvey, Gordon Lansen and Roy Hammer, each of whom is now deceased, were each identified as an important teacher of one or more of the Aboriginal witnesses.
To the extent that experience in relation to the present claims and the vicinity of the present claims is significant (as discussed below), his experience is very much greater than that of Professor Sansom.
Professor Sansom’s anthropological fieldwork has been conducted both overseas (South Africa, Libya and at Mt Lebanon in Lebanon), as well as Australia with the Aborigines of the Darwin fringe camps and hinterland principally only in the 1970s. Professor Sansom has done no direct research in the Borroloola or Gulf of Carpentaria regions.
On the other hand, as he said, his particular interest in anthropology has been in the economic adaptations of previously “tribal” people to modern conditions, and he has widely consulted in relation to claims under the ALRA and the NTA since 1998, both in the Northern Territory and in Western Australia. He has published extensively, including on the nature of and the demand system of “service exchange”, to show (as he says):
That Aboriginal conventions governing the use of money and material goods were incommensurate with ordinary economic practice characteristic of mainstream Australia.
The Applicants, in submissions, were somewhat critical of Professor Sansom’s evidence. I shall refer to that shortly. The Territory, on the other hand, whilst acknowledging Mr Stead’s more “hands on” experience with the Aboriginal people from the claim region, said Professor Sansom’s evidence provides a useful counterweight to any perception of a lack of neutrality and objectivity in Mr Stead’s evidence arising from his lengthy history of work with the Claim Group and their antecedents. The Territory also points out that, while anthropological evidence may provide a context in which to consider, or to provide an explanation for, the evidence of the lay witnesses, it is not a substitute for that evidence. Whilst that is undoubtedly correct, it would not be correct to confine the role of anthropological expertise to that function: for example, the use of the anthropological evidence in Pilki SJ and the observations in Alyawarr SJ quoted above at [69].
The Territory also stressed that the competing anthropological opinions were based, or largely based, on reading relevant literature, and on what they saw as the substance and interpretation of historical writings about Aboriginal people in the claim region in the period after settlement, including what could properly be made, as anthropologists, from those writings. Hence, the cross-examination of each involved some analysis of that material. The folder of that written material was itself tendered as Exhibit A20.
As a “starting point” in the further reference to that material, and the submissions concerning it, it was common ground that the claim group, and the Aboriginal people in the claim region are accepted as being within the “Gulf Cultural bloc”, and that to the further north of Borroloola there is a separate “Arnhem Land Cultural bloc”.
It is a somewhat contrived process to address the respective criticisms of the anthropologists for what they drew from particular historical or other writings, or for what they did not refer to. The Territory integrated its criticisms of Mr Stead’s opinions in its submissions about the effect of the evidence generally. Whilst the applicants also did that to a degree, they made specific separate submissions about Professor Sansom’s views.
I note that one point of distinction is that Professor Sansom did not consider the report of Dr Cane (part of the evidence in the Pilki SJ case, and included in Exhibit A20). Professor Sansom’s report commences with a “reservation” on that very point.
Mr Stead cites Dr Cane to support the proposition that ceremonial exchange systems in Aboriginal Australia were, at one and the same time, systems of exchange of ritual items and systems for exchange of things of everyday economic (and non-spiritual) worth. Professor Sansom says Mr Stead recounts one of the ethnographic facts on which Dr Cane would have based his argument, but then relies on the opinion of another expert that pertains to another native title case to support his views. Mr Stead says that “it is reasonable to assume that many of the economic practices recorded by Cane occurred in the claim region”. It is probably more accurate to describe Professor Sansom’s reservation as a criticism, rather than as a reservation. There are two particular paragraphs of the Stead Report which Professor Sansom refers to. The first at [2.66] is under the subheading “Other Socio-Economic Transactions”, a sub-section of six paragraphs, in Section 2 of the Stead Report “Access to and Control of Land and Resources”, comprising 107 paragraphs. It is a recital, with some comment of Mr Stead, on other anthropological research not specific to the claim area. It refers to Dr Cane’s conclusions after noting that Dr Cane has examined ethno-historic accounts, and Dr Cane’s own research. It is, in essence, a descriptive section of Dr Cane’s views. The other paragraph of the Stead Report referred to by Professor Sansom is at [3.59] in Section 3 – Terms of Reference and Opinions, also a lengthy section of 84 paragraphs, broken into eight subsections separately responding to the eight terms of reference to Mr Stead. The paragraph specified is in the paragraph subsection addressing “TOR Five” [Terms of Reference 5] in the following terms:
TOR Five: Identify and consider the geographic extent at and since sovereignty over which the material goods of the claim region were traded (directly or indirectly) and from which material resources were brought into the claim area/region pursuant to the existing laws and customs.
There follows the views of Mr Stead on what historical data and analysis of that data shows, both specifically from the claim region in exposure to the Macassans and more generally. That section of the Stead Report specifically says it reflects Mr Stead’s understanding of those analyses. In its context, it does not appear to me that the reference to Dr Cane is any more or less appropriate than the reference to the other sources referred to, and which do not appear to attract the same criticism by Professor Sansom.
As counsel for the Applicants pointed out, the range of ethnographic resource material to which Professor Sansom referred is more confined than that to which Mr Stead referred. Of itself, that does not take the matter far. But I did not think Professor Sansom explained, at least in a way which satisfied me, that (for example) the work of Bradley was appropriately disregarded, or the works of Baker merited only passing reference, or the works of McCarthy and Mulvaney should be given little significance. Those materials are all in Exhibit A20.
Bradley is an anthropologist who was for a time a school teacher at Borroloola and who speaks the Yanyula language, and whose PhD research related to Yanyula concepts of the sea and use of the marine environment. Baker is a cultural geographer who addressed the history of the Yanyula and Garawa people, including their history of contact with and dealings with the Macassans. Both McCarthy and Mulvaney were said by Professor Sansom to be saying “Aboriginal cross-country transactions count as economic trading relationships” so that such views, as an interpretive and etic (scientist-oriented) approach, as distinct from Professor Sansom’s emic (analysis of how the relevant local Aboriginal people thought about and understood what they were doing) approach, should carry little or no weight. None of them, in my view, are of apparently little relevance or significance, despite the views of Professor Sansom.
That is not to say that his comments about the views of those ethnographers should be accorded particular weight, compared to other views. That ultimately is a matter for the Court, informed by the evidence. Nor is it to say that his views or his report, by its lack of or only brief references to that material, do not merit very careful consideration. They do. But where the reference material is, on its face, well-informed and apt because of its particular geographical or other focus, and has been accepted as useful and reliable by other anthropologists (such as Berndt and Berndt), I did not find his decision to discount its significance as persuasive.
It follows that I do not readily reject Mr Stead’s views because of their reference to, and reliance upon, that material, particularly given his own extensive and close dealings with the people of the Borroloola region. It cannot be said of Mr Stead that his views were etic only.
In forming my views about the appropriate findings, apart from the extent to which the lay witnesses’ evidence assists, I record that I also formed the impression from the whole of the evidence that the very firm and clear lines which Professor Sansom sought to draw are not necessarily appropriate.
In relation to the dealings with the Macassans, which are well recorded both in the claim region and elsewhere, it is certainly a possibility in relation to the claim region that they were initially simply invasive, but it does not follow that, for whatever reason and despite (any assumed) physical superiority and resource superiority of the Macassans and their desire to take advantage of it, the dealings between the Macassans and the people of the claim region did not become in part or in whole consensual. Uneven bargaining or negotiating power, assuming that state of affairs existed, does not necessarily imply a lack of preparedness to bargain or to negotiate at all. It is also appropriate to acknowledge that, in the absence of any history of non-Indigenous engagement by the people of the claim region prior to the advent of the Macassans, there may have been nothing in the traditional laws and customs of those people to deal with that engagement. It is very unlikely that there were not traditional laws and customs of the people of the claim region about how they intersected with Indigenous people of adjoining regions, especially other people from the Gulf people society. The evidence also shows that they had traditional laws and customs dealing with their intersection with more remote Indigenous people, including ceremonial intersections. It may be that those traditional laws and customs were called into play when responding to the advance of the Macassans. It may be that, having been confronted with the advance of the Macassans, they applied and perhaps adapted their traditional laws and customs to address those new circumstances.

The Territory takes the further step of saying that that extinguishment was effected legislatively and via the Crown’s assertion of its rights and powers over the subject matter, and not “by the creation of any prior interest” within s 47B(2) of the NTA; and flowing and subterranean waters cannot be occupied by a member of the claim group as required by s 47B(1)(c): see Griffiths v Northern Territory (2006) 165 FCR 300 at [779] per Weinberg J (Griffiths).
The Applicants make the fair comment that subterranean waters cannot really be occupied in any relevant sense. In addition, they say the occupation requirements of s 47A(1)(c) and s 47B(1)(c) relate to areas, not to particular resources found underground.
They disagree with what the Territory draws from Griffiths at [779]. Their submission is that Weinberg J did not hold that waters cannot be occupied within the meaning of s 47B(1)(c). His Honour merely said at [779]: “There is difficulty with the notion that waters of a creek can be occupied”. His Honour then referred to the decision of the Full Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (at [170], [196]) requiring that “a broader view of that term” be taken and to Merkel J’s decision in Rubibi Community v Western Australia (2001) 112 FCR 409 in which his Honour accepted the possibility that in some cases there may be sufficient “use” of the waters to constitute “occupation”. Weinberg J then concluded at [779] that the evidence in that case did not connote “occupation” of the creek there in issue in any relevantly acceptable sense.
The Applicants point out, too, that if it be necessary to establish “occupation” of any parts of the claim area that are permanently or at times covered by waters, there is an abundance of evidence about the use of both the McArthur River and Rocky Creek and the areas in their immediate vicinities: the evidence of Graham Friday and Warren Timothy confirms that.
More fundamentally, the Applicants do not agree with the Territory submission that any exclusive native title rights and interests in respect of other waters (flowing or subterranean) in the claim area were extinguished by the passage of the CWOrd.
There have been numerous determinations or judgments of native title relating to land and waters in the Northern Territory (and elsewhere) where exclusive native title rights have been recognised in at least parts of the determination areas and where there has been no provision limiting the nature of those rights in respect of flowing or subterranean waters: see, for example, Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539, [2004] FCA 472; Gumana v Northern Territory (No 2) [2005] FCA 1425; Griffiths v Northern Territory (2007) 165 FCR 391 (FC) and King v Northern Territory [2007] FCA 1498.
On the other hand, there have been determinations of native title that have included a provision of the kind sought by the Territory. Thus, in Attorney-General (NT) v Ward (2003) 134 FCR 16, [2003] FCAFC 283 (AG v Ward), the final determination of native title rights on the Western Australian side and the final determination on the Northern Territory side of the border each included a provision to the effect that the rights and interests in flowing and subterranean waters are non-exclusive.
The Applicants say that the effect of the CWOrd is fully and appropriately accommodated by the provision included in the proposed determination sought at [13(b)] that the native title rights and interests are exercisable in accordance with, and subject to, the laws of the Northern Territory and the Commonwealth, including the common law. A similar provision appeared in the determination on the Western Australian side in AG v Ward: see the relevant determination at [13].
They say that the native title right of exclusive possession is not relevantly inconsistent with a limitation on the use of particular kinds of water. Because the claimants could use water from the claim area in exercise of their right of exclusive possession without breach of the CWOrd and without abrogating rights vested in the Crown under the CWOrd, there was no extinguishment of the exclusive right. In the case of their non-exclusive rights, so far as the exercise of those rights might properly have been read as limited by reference to the CWOrd, it remains possible to exercise them in a manner that did not and does not infringe the statue or abrogate any right vested in the Crown.
Hence, they say there was and is no extinguishment by the CWOrd, as it can exist and be accommodated in the present form of the determination sought.
The Applicants contend that the Territory effectively is asking the Court to make findings in terms of rights that are narrower than those that have been claimed, so that one or more of them can be found to have been extinguished. The Court, however, is required to consider the broadly stated rights that have been claimed and the evidence that supports findings in favour of those broadly stated rights.
They add that, if considered necessary, the rights of the Crown under the CWOrd (or its current equivalent) could be recorded as “other interests” in Schedule E of the determination sought.
Obviously, the terms of the applicable legislation are important.
The Water Act has a long title which reveals a broad and comprehensive intention. The definition of “ground water” in s 4 clearly includes water occurring or obtained from below the surface, and it specifically covers bore or aquifer sourced water. The word “water” is separately defined to mean water (including water with impurities). The definition of “waterway” is wide, so it clearly includes intermittently flowing channels and intermittently occurring collections of ground water.
Section 9 provides that water flowing or contained in a waterway and ground water is the property of the Territory, and the rights to its use, flow and control is vested in the Territory. Certain statutory rights are given for domestic and stock purposes and to owners and occupiers of land including land adjacent to the banks of a waterway: ss 10-14.
In somewhat different (and perhaps less detailed) terms, the CWOrd has a similar effect: see ss 3(1), 5, 6 and 7.
In either enactment, the vesting of title in water in the Territory was subject to statutorily recognised, or statutory, rights. The Water Act is more extensive in its coverage, as it clearly covers ground water whereas the CWOrd covered, and so was confined to, water in any “lake, spring or watercourse”. By use of the word “spring”, the CWOrd appears to envisage water emerging from underground, whereas the Water Act makes that more explicit. Each, in somewhat different ways, allows for a public right to take water for domestic or stock purposes, including by land owners or occupiers adjacent to any watercourse or lake.
The Applicants sought to contrast those statutory provisions with the Rights in Water and Irrigation Act 1914 (WA) (RWIA) as in force at the time of the Ward HC decision. It is therefore helpful to note the comparative provisions of that Act. Section 4 of the RWIA clearly extends to water in any watercourse and any ground water, and covers subterranean water sources. The Crown right of use and control in s 4 is also subject to the public right to take water for domestic and stock use: s 6, and the right of landowners and occupiers to adjoining watercourses and ground water to do so: s 7. Section 4 also permits the land owner or occupier to store water in dams or tanks, subject to restrictions.
In my view, there is no reason to discount the observations of the High Court in Ward HC by reason of any material difference in the legislation. In each instance, the vesting in the Crown of the property in, and the right to the use and flow of, water and to the control of water is subject to exceptions.
Having regard to the plurality reasons in Ward HC at [89], and set out earlier in these reasons, it would be clear enough that in an area where there are exclusive native title rights, including the right to control access, the right would not be subject to the public rights referred to in the CWOrd or the Water Act because the public could not access the areas adjacent to the water. Nor does that legislation diminish that right, save to restrict the exclusive native title holders from taking water within the area of exclusive native title rights except to the extent permitted by the legislation or unless a licence under the legislation to more actively take and use water is required.
There is also, as the Applicants point out, in the NTA no apparent suggestion of native title rights and interests in relation to land or waters being of a different order or character: see ss 223(1) and 225. Although the definitions of “land” and “waters” in s 253 are expressed as alternatives, they both encompass geographical areas or spaces. It is also apparent, as pointed out, that the word “water” as a singular term may be used in a different sense: see eg s 212(1)(b), which appears to use that word as it is used (for instance) in the Water Act and the CWOrd, and see s 2KHA and the definition of “public work” in s 253.
So, which of the competing contentions should be reflected in the determination? The Applicants’ position is that it is not necessary to make any express reference to, or qualification of, the native title rights and interests by reason of, the flowing (including intermittently flowing) and subterranean waters within the claim area, or alternatively that they should be referred to only to recognise the Territory’s rights under the Water Act in Schedule E. The Territory says that, even in areas where exclusive native title rights and interests exist, the determination should record that there are no exclusive rights in areas affected by those waters, and s 47B cannot apply because those waters cannot be “occupied” within the meaning of s 47B(1)(c).
I do not think that the plurality reasons in Ward HC at [262]-[277] addressing the effects of the RWIA on native title rights and interests directly applies to the present issue. As noted at [262], the dispute was whether land held for future expansion of the Ord River project, as a buffer zone, for drainage and for protection against erosion and flooding is “used” in a manner so as to totally extinguish those rights. The precise content of the native title rights was not, on that aspect, the issue. Of course, in the light of Brown, the proper focus is upon the nature and effects of the rights granted, not dependent on how they might be exercised in the future. That focus was given by the plurality at [269].
One argument was whether the provisions of the RWIA meant that there was such inconsistency with native title rights over that area as to extinguish native title: at [262]. It was held that certain reserved land vested in the Minister under the Land Act for or in connection with the “Works”, and that dedication of the reserved land for that specified purpose was inconsistent with the continued existence of native title rights: at [273]-[274].
The plurality then turned its attention to the residual Crown lands, distinct from the reserved land. It did not conclude that the RWIA had the effect that those areas were “occupied” or “held” in connection to the works, so it could not be said on the evidence led that the vacant Crown land beyond the reserved land was within the area of the works for the project: at [276]-[277]. That was a question of fact, not to that point in the conduct of that claim the subject of findings.
The review of those reasons does not indicate that the particular matter raised by the Territory now under consideration was addressed in that decision, save to remark upon the uncontentious step taken by their Honours at [263] that under the RWIA:
The vesting of waters in the Crown was inconsistent with any native title right to the possession of those waters to the exclusion of all others.
That conclusion would follow also from the CWOrd, and from the Water Act as (as I have found) in the material respects, they are to the same effect.
The Applicant’s focus is not, however, on that point. It is upon the land areas themselves where there is, or may be, water from time to time, and (it says) the source of that water (whether above ground or subterranean) does not matter. The particular issue was not addressed specifically in Brown, or in Akiba. And, as the Applicants say, the statutory regulation of a particular activity, which is one of a much broader range of activities encompassed within a broader native title right should not be taken as extinguishing that native title right. It is the regulation of the manner of exercising that activity but not the extinguishment per se of that broader native title right.
In my view, in the present circumstances, the right to access the resources of the claim area, where that right has not already been extinguished for other reasons, has not been extinguished or partially extinguished by the CWOrd or the successor legislation in the Water Act. In those areas, there would be no meaningful right given to members of the public to access and take the resources of the areas, including water. The statutory rights to take water in the circumstances prescribed would be confined to the Claim Group, and having regard to Akiba HC would not themselves amount to the extinguishment of native title rights in relation to waters (as part of the resources).
Nor, in my view, can it be said that the CWOrd in the Water Act has vested in the Territory the land over which or upon which water lies: see s 3(1), CWOrd, and s 9, Water Act. As I have noted, the expression “waters” in the term “land or waters” in s 47B(10(b)(ii), applying the definitions in s 253, does not have the same meaning as “water” in that legislation; it encompasses both the water and the bed or subsoil. I do not accept that, because the words used in s 47B(1)(b) are “the land or waters in the area”, it was intended to allow for the legislative extinguishment of native title over the bed or subsoil, as well as water over the bed or subsoil (or subterranean water) by an enactment which related to water only. The reference to “area” in s 47B(1) is to address the particular areas within a claim area where, potentially, s 47B may have work to do.
Consequently, in my view, s 47B(1)(b)(ii) does not cover the CWOrd or the Water Act so as to preclude the operation of s 47B to the areas within the claim area where they would apply to water.
By taking that step, I do not consider it necessary to determine whether, as the Territory contended and the Applicants disputed, the water control vested in the Territory by the CWOrd or the Water Act is vested for public purposes. However, I indicate that I generally agree with the submissions of the Territory in its reply in relation to the Applicants’ Note of 25 May 2016 on this topic. The characteristics of the RWIA which Sundberg J identified and discussed in Neowarra at [741] are also present under the Water Act: its purposes; the regulatory administrative discretions in s 20; the primary obligation of the Controller under s 4 and the powers to fulfil them in ss 20, 34 and 35. I do not think the observations in Banjima FC at [107]-[108] and [114] or in Alyawarr FC at [174], [186] and [190] in their context really assist the Applicant’s contentions to the contrary. Whilst each of those cases in Banjima FC [91]-[92] and [98], and in Alyawarr FC [187], make the point that s 47B is beneficial legislation so that the restrictions on its application should be construed no more widely than is necessary to achieve its purpose, the focus of the CWOrd and the Water Act overall is not merely permissive so that it could be said, as it was in Banjima FC and in Alywarra FC, that interests or rights recognised could not of themselves lead to any particular areas being affected in any particular way. The CWOrd, and more clearly the Water Act, provide sources of power to make effective the vesting of water use and control rights, so they are complementary to the vesting rather than defining its scope.
Finally I note the debate in submissions about the word “spring” in s 3(1) of the CWOrd, used in the expression “the water at any time in any lake, spring or watercourse”. I do not consider that the decision in Taylor v Corporation of St Helens (1877) 6 Ch D 264 to which the Territory referred takes the issue very far. It is clear that the grant of rights by a landowner to a company in that case depended in part on the particular terms of the grant: see per James LJ at 278 and per Bramwell LJ at 279-280.
However, in my view, the use of the word “spring” in the CWOrd refers to the water at any time on the surface of an area and which emanates from a percolation of water from underground. The water in a spring is the water from that source. The exercise of including “underground springs”, that is subterranean water which is moving, is a contrived meaning which could readily have been included in the applicable definition (as was done in the definition of “ground water” in the Water Act, s 4). The detailed comparison of the definitions of “watercourses” in the CWOrd and of “waterway” in the Water Act, especially cl (d) of that definition, and of the vesting provisions in ss 3 and 9 respectively tend to confirm that.
Hence, I would conclude that the CWOrd did not encompass the vesting of subterranean water in the Territory, save when and if it emerged as surface water in a lake, spring or watercourse.
It is necessary then to address the nature of the rights created by the CWOrd (and the Water Act) to determine how, but for s 47B of the NTA, they may affect native title. As I have said, I do not regard them as impeding any native title rights to access the areas of the claim area where exclusive native title would otherwise exist, whether the area is dry (as it will be much of the time) or is temporarily covered by water, whether ponded or running.
In the circumstances, I do not consider it appropriate in the Determination to qualify the expression of the right to take and use the resources of the claim area, where that right is still an exclusive right, by breaking that right (conceptually) into a series of activities and then treating one of the activities as constrained, so that it should be broken off from the general right and treated as non-exclusive. However, in my view, it is appropriate and necessary to recognise that the enjoyment of that right is qualified by the provisions of the Water Act, by including reference to that Act in Schedule E of the Determination, as it is an important “other interest” impacting on the enjoyment of the native title rights and to the extent that it does so it impacts on them directly and to constrict the enjoyment of that general right.
I note that, in respect of the parts of the claim area over which non-exclusive native title rights exist, there is no significant dispute which requires separate consideration of this topic.
Application of s 47A, NTA to various lots
The Applicants assert in the proposed Determination in Schedule 3, item (a) annexed to the APOD that s 47A of the NTA applies to Lots 331(part), 545, 549-553, 555, 568, 825 (part) and 830. The Territory does not admit that, in respect of those Lots (or parts thereof), there was a grant or vesting within s 47A(1)(b)(i) of the NTA, and does not admit that the lots were held within s 47A(1)(b)(ii) at the time the claim was made.
Section 47A(1)(b) of the NTA provides that the section applies if, when the application is made:
(i)a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or
(3)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.

There is no dispute about the fact that none of the grants over the identified lots took place under legislation within s 47A(1)(b)(i). They were all made or undertaken pursuant to the Crown Lands Act (NT). The issue is whether the Lots fell within s 47A(1)(b)(ii). More particularly, the issue is whether the lots are “held expressly for the benefit of” Aboriginal peoples.
In Coulthard v South Australia (2014) 218 FCR 148 at [106], I held that the proper approach to determination of whether an area falls within s 47A(1)(b)(ii) is to consider the question whether land is “held expressly for the benefit of” Aboriginal peoples upon the whole of the evidence before the Court. In that case, the land was initially held by the Indigenous Land Corporation, a statutory body with functions of acquiring and holding land for Aboriginal persons, then granted to an Aboriginal corporation, subject to a deed, the terms of which obliged the Aboriginal corporation to apply the land expressly for the benefit of its members, who had to be Aboriginal people. The issue arose in Moses v Western Australia (2007) 160 FCR 148 at [138], [154] per Moore, North and Mansfield JJ (Moses), where the Full Court expressed a preference (which it said was “not free from doubt”) for an approach which proceeds from the perspective of the legislative or executive structure under which the grant or transfer was made or the instrument which grants the relevant interest, rather than from the perspective of the entity holding the beneficial interest in the land set in the legislative context in which the entity was established.
The former approach was taken by Olney J in Hayes at 83-84; by Mansfield J in Risk v Northern Territory [2006] FCA 404 at [881]; and by Nicholson J in Daniel at [943]-[955]. The alternative approach was taken by Sundberg J in Neowarra and by Merkel J in Rubibi Community v Western Australia (No 7) [2006] FCA 459.
The Territory urges the former approach. It points out that the Full Court observed, in expressing its preference for the former approach in Moses at[139]-[144], that it is supported by what appears in the Senate’s Supplementary Explanatory Memorandum to the Native Title Amendment Bill (No 2) 1997 (Cth). It also says that alternative approach would have the effect that s 47A(1)(b)(i) would have little or no work to do, and also that a lessee of an ordinary lease from the Crown could defeat the Crown’s reversionary title by the lessee’s own act of, for example, subleasing the area expressly for the benefit of Aboriginal people.
However, it must be noted that the Full Court decision in Moses was careful to say that each set of circumstances must be addressed separately: at [138] and [145]. It did not hold that Neowarra and Rubibi were decided incorrectly on this issue.
At this point, therefore, I think it is appropriate to proceed having particular regard to the legislative context, but also to the factual circumstances.
As the Applicants placed emphasis on Neowarra, I should consider its circumstances in more detail. In Neowarra, Sundberg J held that s 47A(1)(b)(ii) applied to a pastoral lease held by Kupungari Aboriginal Corporation Inc. His Honour held that the rules of that corporation showed that it held the pastoral lease “expressly for the benefit of” Aboriginal peoples. The material features of the corporation were that the objects in the rule book were all directed to the benefit of a group of Aboriginal people, and that the rules clearly and unmistakably disclosed that the corporation’s property is held by it for the benefit of Aboriginal persons: see at [706]. In Rubibi (No 7) at [97], Merkel J held that s 47A(1)(b)(ii) was satisfied in respect of parcels of freehold held by the Mamabulanjin Aboriginal Corporation on the basis that its rules were not relevantly distinguishable from those of Kupungari Aboriginal Corporation Inc.
The following table summarises the relevant entities, lots and interest granted under the Crown Lands Act (NT).

Entity

Lot(2)

Interest

1.

Rrumburriya Malandari Council Aboriginal Corporation

331

Crown Lease Perpetual

2.

Rrumburriya Malandari Council Aboriginal Corporation

545

Freehold

3.

Rrumburriya Malandari Council Aboriginal Corporation

825

Occupation Licence

4.

Rrumburriya Malandari Housing Association

549-553

Freehold

5.

Mabunji Aboriginal Resource Association Incorporated

555

Freehold

6.

Mabunji Aboriginal Resource Association Incorporated

568

Freehold

7.

Mabunji Aboriginal Resource Association Incorporated

830

Freehold

In my view, the evidence leads to the following conclusions.
In the case of Lots 331, 545 and 825, the grant was made under legislation of general application, but to an Aboriginal corporation with the specific objects referred to, with membership restricted to Aboriginal people, and with the exercise of powers directing the fulfilment of the objective. The grant cannot be transferred in a way which might subvert those objects. Consequently, despite the generic statutory source for the grant, its terms at the time in the circumstances lead me to the conclusion that the areas are held upon the basis set out in s 47A(1)(b)(ii) so s 47A applies to those grants.
In the case of Lots 549-553, again the grants were made under legislation of general application. In this instance, the grantee is also incorporated under legislation of general application in the Territory. Nevertheless the grantee has objects clearly directed to the benefit of Aboriginal people, with membership restricted to Aboriginal people, and ensuring that those objects cannot be subverted by the distribution of its assets beyond or inconsistent with its purpose. I note that it was incorporated in 1973, at a date prior to the enactment of the Aboriginal Councils and Associations Act 1976 (Cth). In the circumstances, as I have found in the previous paragraph, I am satisfied that the areas are held upon the basis set out in s 47A(1)(b)(ii) so s 47A applies to those grants.
In the case of Lots 555, 568 and 830, the Mabunji Resource Association also received its grants under generic legislation and was incorporated under generic legislation. As noted, its objects are somewhat less explicit than applied to the other two grantee entities under consideration. There is no rule specifically precluding its assets being dealt with in a way that may be for the benefit of non-Aboriginal people, whether directly or in association with the benefit of Aboriginal people. Whilst there is, in relation to the lots addressed in the previous two paragraphs, a close factual analogy with the Kupungari Aboriginal Corporation as grantee considered in Neowarra, these grants are in a somewhat different context. Putting the focus on what is shown at the dates of the three grants, unlike the two previous categories where the nature of the grantee assured circumstances to support a finding in terms of s 47A(1)(b)(ii), I do not have that level of satisfaction in relation to these three grants. I am not satisfied that the area of each of these grants is held expressly for the benefit of, or is held in trust, or reserved, expressly for the benefit of Aboriginal peoples.
In reaching those views, I have sought to give effect to the Full Court decision in Moses. I do not consider that it required a focus, at the time of the grant, exclusively upon the legislative framework applicable to either or both of the grantor or the grantee, although that will be a significant perspective. It clearly invites the focus on the time of the grant, where no facts are shown post the grant which might inform the current status of the grant. It accommodates the consideration of the status and structure of the grantee.
CONCLUSION
I noted at the commencement of these reasons concerning extinguishment that the parties invited the Court to express its reasons, so that they could then prepare a Determination with the detail necessary to give effect to them. I have also indicated that I accept that offer.
I propose, therefore, to publish these reasons for decision and to fix a time within which the parties may agree upon the terms of a Determination to give effect to them. I will then make a Determination in those terms.

I certify that the preceding four hundred and ninety-five (495) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:
Dated: 30 June 2016

File numbers:	NTD 6014 of 2000 NTD 6003 of 2003
Judge:	MANSFIELD J
Date of judgment:	30 June 2016
Catchwords:	NATIVE TITLE – native title rights and interests claimed – where the native title rights and interests claimed, subject to one qualification, are not in dispute – right to take resources – whether right is an unconfined right to take resources of the claim area – whether right to take resources is confined to personal or communal purposes of a domestic or subsistence nature, but not for commercial or business purposes – question of fact on the evidence – exchange of goods for economic utilitarian purposes – exchange of goods for religious, ceremonial or political purposes NATIVE TITLE – extinguishment – non-tidal waters and subterranean waters – legislation asserting Crown rights in and/or powers over waters in lakes, springs and watercourses – whether native title right of exclusive possession is relevantly inconsistent with a limitation on the use of particular kinds of water – whether non-exclusive rights may properly be read as limited by legislation in a manner that does not abrogate any right vested in the Crown – land areas, bed or subsoil where there is, or may be, water from time to time – appropriate formulation and/or qualification of the right
Legislation:	Native Title Act 1993 (Cth) Lands Acquisition Act (NT) Aboriginal Land Rights (NT) Act 1975(NT) Control of Roads Act (NT) Racial Discrimination Act 1975 (Cth) Road Districts Act 1919 (WA) Control of Roads Act 1979 (Cth) Native Title Bill 1993 (Cth) Racial Discrimination Act 1975 (Cth) Native Title (Queensland) Act 1993 (Qld) Validation (Native Title) Act 1994 (NT) Control of Roads Act 1986 (NT) Planning Act (NT) Control of Waters Ordinance 1938 (NT) Water Act (NT) Rights in Water and Irrigation Act 1914 (WA) Native Title Amendment Bill (No 2) 1997 (Cth) Crown Lands Act (NT) Aboriginal Councils and Associations Act 1976 (Cth)
Cases cited:	Western Australia v Ward (2002) 213 CLR 1 Durrayjaba v Northern Territory [2015] FCA 1242 Charlie v Northern Territory [2015] FCA 1237 Peter v Northern Territory [2015] FCA 1238 McDinny v Northern Territory [2015] FCA 1239 Rory v Northern Territory [2015] FCA 1240 Rory v Northern Territory [2015] FCA 1241 Jurluba v Northern Territory [2015] FCA 1248 Ngajapa v Northern Territory [2015] FCA 1249 Jack v Northern Territory [2015] FCA 1250 Miller v Northern Territory [2015] FCA 1251 Green v Northern Territory [2015] FCA 1252 Brown v Northern Territory [2015] FCA 1268 Largut v Northern Territory [2015] FCA 1269 Mabo v Queensland (No 2) (1992) 175 CLR 1 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 Sampi v Western Australia [2005] FCA 777 Alyawarr, Kaytete, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 De Rose v South Australia [2002] FCA 1342 Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548 TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No. 3) [2015] FCA 1359 Bodney v Bennell (2008) 167 FCR 84 Akiba v The Commonwealth (2013) 250 CLR 209 Western Australia v Willis [2015] FCAFC 186 Commonwealth v Yarmirr (1999) 101 FCR 171 Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 Wik Peoples v Queensland (1996) 187 CLR 1 Yanner v Eaton (1999) 201 CLR 351 King v Northern Territory [2007] FCA 1498 Roberts v Northern Territory [2012] FCA 223 Pwerle v Northern Territory [2016] FCA 304 Young v Northern Territory [2011] FCA 583 Brown v Northern Territory [2013] FCA 1082 Lampton on behalf of the Juru People v Queensland [2015] FCA 609 Northern Territory v Alyawarr (2005) 145 FCR 442 Yarmirr v Northern Territory (1998) 82 FCR 533 Akiba v Queensland (No 3) (2010) 204 FCR 1 Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (2012) 204 FCR 260 BP (Deceased) on behalf of the Birriliburu People v Western Australia [2014] FCA 715 Willis v Western Australia (No 2) [2014] FCA 1293 Wandarang, Alawa, Mara and Ngalakan Peoples v Northern Territory [2000] FCA 923; (2000) 177 ALR 512 Ngalakan People v Northern Territory (2001) 112 FCR 148 Harrington-Smith v Western Australia [2007] FCA 31 Gumana v Northern Territory (2005) 141 FCR 457 Harrington-Smith obo the Wongatha People v Western Australia (No 9) [2007] FCA 31 Western Australia v Ward (2000) 99 FCR 316 Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244 Fourmile v Selpam (1997) 80 FCR 151 Daniel v State of Western Australia [2003] FCA 666 Neowarra v Western Australia [2003] FCA 1402 BanjimaPeople v State of Western Australia (No 2) [2013] FCA 866 Doylev State of Queensland [2016] FCA 13 Hayes v Northern Territory [1999] FCA 1248 Re Warumungu Land Claim; Ex parte Attorney-General (NT) (1987) Western Australia v Brown (2014) CLR 507 Erubam Le (Darnley Islanders) #1 v State of Queensland and Others [2003] FCAFC 227 Gumana v Northern Territory (2007) 158 FCR 349 Gumana v Northern Territory (No. 2) [2005] FCA 1425 Griffiths v Northern Territory (2006) 165 FCR 300 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 Rubibi Community v Western Australia (2001) 112 FCR 409 Gumana v Northern Territory (No 2) [2005] FCA 1425 Griffiths v Northern Territory (2007) 165 FCR 391 Attorney-General (NT) v Ward (2003) 134 FCR 16 Taylor v Corporation of St Helens (1877) 6 Ch D 264 Coulthard v South Australia (2014) 218 FCR 148 Moses v Western Australia (2007) 160 FCR 148 Risk v Northern Territory [2006] FCA 404 Rubibi Community v Western Australia (No 7) [2006] FCA 459
Dates of hearing:	18-22 January 2016; 15-16 February 2016; 9-11 May 2016
Date of last submissions:	25 May 2016
Registry:	Northern Territory
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	495
Counsel for the Applicants:	T Keely SC and J Edwards
Solicitor for the Applicants:	Northern Land Council
Counsel for the Respondents:	S Brownhill SC
Solicitor for the Respondents:	Solicitor for the Northern Territory
Counsel for the Commonwealth:	J Thomson SC and E Longbottom
Solicitor for the Commonwealth:	Australian Government Solicitor

Entity	Lot(2)	Interest
1.	Rrumburriya Malandari Council Aboriginal Corporation	331	Crown Lease Perpetual
2.	Rrumburriya Malandari Council Aboriginal Corporation	545	Freehold
3.	Rrumburriya Malandari Council Aboriginal Corporation	825	Occupation Licence
4.	Rrumburriya Malandari Housing Association	549-553	Freehold
5.	Mabunji Aboriginal Resource Association Incorporated	555	Freehold
6.	Mabunji Aboriginal Resource Association Incorporated	568	Freehold
7.	Mabunji Aboriginal Resource Association Incorporated	830	Freehold