FEDERAL COURT OF AUSTRALIA

De Rose v State of South Australia (No 2) [2005] FCAFC 110

NATIVE TITLE– appellants claim native title rights and interests over land held under pastoral leases – Native Title Act 1993 (Cth), s 223(1) – the appellants claim as Nguraritja (traditional custodians) under the traditional laws and customs of the Western Desert Bloc – whether rights and interests claimed are group rights and interests – whether the evidence establishes that the appellants possess rights and interests under the traditional laws acknowledged and customs observed by them – whether the appellants had shown that they have a connection to the claim area by their traditional laws and customs

NATIVE TITLE – extinguishment - Native Title Act 1993 (Cth), Pt 2, Div 2B, s 44H – Native Title (South Australia) Act 1994 (SA), s 36I – whether the right of a lessee to construct improvements extinguishes native title or merely suspends native title – ‘operational inconsistency’

Native Title Act 1993 (Cth) ss 13, 23F, 23G, 24AA, 24GC, 44H, 61, 221, 223(1)(a), 223(1)(b), 225, 228, 237A, 248B, 250, 251B, 251D, 253, Pt 2 Div 2, Div 2B, Div 3, Div 4

Native Title Amendment Act 1998 (Cth) Sch 5 Item 17(1), 17(2)

Racial Discrimination Act 1975 (Cth)

Native Title (South Australia) Act 1994 (SA) ss 23I, 36I, 36I(1)(a), 36I(1)(b), 36I(2), 239

Pastoral Land Management and Conservation Act 1989 (SA) s 47

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 followed

Western Australia v Ward (2002) 213 CLR 1 followed

Mabo v Queensland (No 2) (1992) 175 CLR 1 discussed

Western Australia v Ward (2000) 99 FCR 316 followed

Commonwealth v Yarmirr (2001) 208 CLR 1 discussed

Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 discussed

Attorney-General (NT) v Ward (2003) 134 FCR 16 discussed

Ward v Western Australia (1998) 159 ALR 483 discussed

Tilmouth v Northern Territory (2001) 109 FCR 240 cited

Colbung v Western Australia [2003] FCA 774 cited

Bodney v Western Australia [2003] FCA 890 cited

The Wik Peoples v Queensland (1996) 187 CLR 1 cited

Wilson v Anderson (2002) 213 CLR 401 cited

Yanner v Eaton (1999) 201 CLR 351 cited

PETER DE ROSE and OTHERS v STATE OF SOUTH AUSTRALIA and OTHERS

SAD 253 of 2002

WILCOX, SACKVILLE and MERKEL JJ

ADELAIDE

8 JUNE 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT MAKES THE FOLLOWING DETERMINATION OF NATIVE TITLE:

1. Native title exists in relation to the land and waters covered by Crown Lease Pastoral No. 2133, Crown Lease Pastoral No. 2138A and Crown Lease Pastoral No. 2190A (‘the determination area’).

2. The persons who hold the group rights comprising native title are the Aboriginal persons who are Nguraritja according to the relevant traditional laws and customs of the Western Desert Bloc people as are applicable to the determination area because for each of them:

(a)  it is his or her country of birth; or

(b)  he or she has a long-term physical association with the determination area; or

(c)    he or she possesses an ancestral connection to the determination area; or

(d)   he or she possesses geographical and religious knowledge of the determination area;

            and such person is recognised as Nguraritja by the other Nguraritja.

3. The nature and extent of the native title rights and interests in relation to the determination area are the non-exclusive rights to use and enjoy the land and waters of the determination area in accordance with the Nguraritjas’ traditional laws and customs being:

(a)  the right to access and move about the determination area;

(b)  the right to hunt on the determination area;

(c)    the right to gather and use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;

(d)   the right to use the natural water resources on the determination area;

(e)    the right to live, to camp and to erect shelters on the determination area;

(f)     the right to cook on the determination area and to light fires for all purposes other than the clearance of vegetation;

(g)    the right to engage and participate in cultural activities on the determination area including those relating to births and deaths;

(h)    the right to conduct ceremonies and to hold meetings on the determination area;

(i)      the right to teach on the determination area the physical and spiritual attributes of locations and sites within the determination area;

(j)     the right to maintain and protect sites and places of significance to Nguraritja under their traditional laws and customs on the determination area;

(k)   the right to be accompanied on to the determination area by those people who, though not Nguraritja, are:

(i)            spouses of Nguraritja,

(ii)        people required by traditional law and custom for the performance of ceremonies or cultural activities on the determination area;

(iii)       people who have rights in relation to the determination area according to the traditional laws and customs acknowledged by Nguraritja; or

(iv)       people required by Nguraritja to assist in, observe, or record traditional activities on the determination area; and

(l)      the right to make decisions about the use and enjoyment of the determination area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by Nguraritja.

4. The rights recognised by paragraphs 3(b), (c) and (d) are traditional rights exercised in order to satisfy personal, domestic, or communal needs, but do not include any commercial use of the determination area.

5. The native title rights and interests do not confer possession, occupation, use and enjoyment of those lands and waters on the native title holders to the exclusion of others.

6. Native title rights and interests do not exist in respect of those parts of the determination area being:

(a)  any house, shed or other building or airstrip; or

(b)  any constructed dam or any other constructed stock watering point.

The areas described by 6(a) and (b) comprise the land on which the improvements have been constructed prior to the date hereof and include any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements referred to therein.

7. Native title rights do not exist in minerals as defined in s 6 of the Mining Act 1971 (SA) or petroleum as defined in s 4 of the Petroleum Act 2000 (SA).

8. Native title rights and interests are subject to and exercisable in accordance with the valid laws of the State and the Commonwealth, including the common law.

9. The nature and extent of other interests to the determination area are:

(a)  the interests created by Crown Lease Pastoral No. 2133, Crown Lease Pastoral No. 2138A, and Crown Lease Pastoral No. 2190A;

(b)  the interests of the Crown in right of the State of South Australia under the leases that are identified in par (a) hereof;

(c)    the interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown pursuant to the Pastoral Land Management and Conservation Act 1989 (SA) or other statutes or otherwise in the exercise of its executive power;

(d)   the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

10. Subject to par 6, the relationship between the native title rights and interests in the determination area that are described in paragraph 3 and the other rights and interests that are referred to in paragraph 9 (‘the other rights and interests’) is that:

(a)  the other rights and interests co-exist with the native title rights and interests;

(b)  the existence of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by or under the other rights and interests; and the other rights and interests and the doing of any activity required or permitted to be done by or under the other rights and interests prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

THE COURT MAKES THE FOLLOWING FURTHER ORDERS:

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

12.  An Aboriginal corporation, the name of which must be provided within 12 months of the date of this order, is to:

(a)  be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth); and

(b)  perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

13. Liberty to any party to apply on 14 days’ notice to a single judge of the Court as to the identification of the Aboriginal corporation referred to in the preceding paragraph.

14. The first and second respondents pay the appellants’ costs of the appeal.

15. The parties have liberty to file submissions within 21 days seeking a different costs order to that made in Order 14.

16. If submissions are filed in accordance with Order 15, Order 14 be stayed until further order of the Court.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT

THE PROCEEDINGS

AN ADJOURNED APPEAL

1                                 In these proceedings, the appellants seek a determination of native title pursuant to s 61 of the Native Title Act 1993 (Cth) (‘NTA’). Their claim relates to land within the boundaries of three pastoral leases that together comprise De Rose Hill Station (‘the Station’ or ‘the claim area’), which is located in the far north-west of South Australia.

2                                 On 1 November 2002, after a trial lasting 68 days, O’Loughlin J delivered a judgment in which he made orders dismissing the claim: De Rose v State of South Australia [2002] FCA 1342 (‘De Rose’). On 16 December 2003, the Full Court, as presently constituted, allowed an appeal from his Honour’s judgment: De Rose v State of South Australia (2003) 133 FCR 325 (‘De Rose (FC)’).

3                                 The judgment in De Rose (FC) recorded (at [154]) that O’Loughlin J, cognisant of the difficulties that would arise if his decision was reversed on appeal, recorded the form of determination that he regarded as appropriate in that event.  The judgment also recorded (at [406]-[408]) that, subject to two specific reservations, the first respondent (‘the State’) accepted that if the Court allowed the appeal and found that native title rights and interests subsisted in the appellants, the primary Judge’s draft determination was appropriate.  The second respondents (‘the Fullers’) made no such concession.

4                                 In De Rose (FC), we indicated (at [410]-[413]) that in the ordinary course we would have remitted the matter to O’Loughlin J for further proceedings consistent with our reasons.  However, since his Honour had by then retired, we considered that the most appropriate course was for the parties to identify the remaining issues in dispute and, after the filing of written submissions, for the Court to list the matter for further argument. 

5                                 That course was followed and the further hearing took place on 13 and 14 December 2004 (‘the further hearing’). The present judgment addresses the remaining issues in dispute. It should be read in conjunction with De Rose (FC), although we intend that the reasons should be capable of being understood without detailed reference being made to the earlier judgment.

6                                 It is appropriate to record that there were originally twelve applicants in the proceedings instituted in this Court on 1 November 1996.  Two of the applicants died before the hearing, which commenced in June 2001. Since judgment in De Rose (FC) was handed down, three of the remaining ten appellants have died and they have been removed as parties to the proceedings.

The Issues Addressed in De Rose (FC)

7                                 The principal question debated by the parties and addressed in De Rose (FC) was whether the primary Judge had erred in concluding that the appellants had failed to prove that they retained a connection to the claim area by traditional laws and customs acknowledged and observed by them that was sufficient to satisfy s 223(1)(b) of the NTA.  (Section 223(1) of the NTA is reproduced at [28] below.) In considering that question, we identified (at [272]) four issues requiring attention, as follows:

‘(i)       Did the primary Judge err in attributing importance to the absence of evidence of a cohesive community or group on or near the claim area?

(ii)               Did the primary Judge err in concluding that the appellants had failed to prove the necessary connection to the claim area for the purposes of s 223(1)(b) of the NTA?

(iii)             If the primary Judge erred, should the Court undertake its own evaluation of the evidence relating to the question of “connection”?

(iv)             Should the judgment below be upheld on the ground that, on his Honour’s findings, the appellants failed to establish that they acknowledged traditional laws or observed traditional customs and accordingly did not satisfy s 223(1)(a) of the NTA?’

8                                 We reached the following conclusions on those four issues:

1.      The primary Judge’s finding that the appellants did not constitute or were not part of a social, communal or political organisation on or near the claim area could not adversely affect their claim to a determination of native title (at [283]).  It had not been part of the appellants’ case, as ultimately presented, that they, or any persons who might be Nguraritja (someone who belongs to a place or who is a traditional owner or custodian), constituted a discrete, cohesive society or community at any given time (at [275]).  The normative system on which they relied was that of the Western Desert Bloc.  The evidence amply supported the proposition that, whatever the degree of acknowledgement or observance of traditional laws and customs by the appellants themselves, Western Desert society had continued to exist since sovereignty and the traditional laws and customs of that society had been acknowledged and observed substantially uninterrupted throughout that period ([274]-[280]): cf Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (‘Yorta Yorta’), at [49]-[54], per Gleeson CJ, Gummow and Hayne JJ.  Moreover, the primary Judge had rejected the contention that the traditional laws and customs of the Western Desert Bloc required those who held rights and interests in land to form a discrete social group or community (at [282]).

2.      The primary Judge had correctly identified the traditional laws and customs relevant to the question of ‘connection’ as those of the Western Desert Bloc.  He had not, however, explicitly asked in relation to any of the appellants, as s 223(1)(b) of the NTA requires, whether by those traditional laws and customs they had retained a connection with the claim area.  The correct inquiry would have required the primary Judge to ascertain the content of the traditional laws and customs, to characterise the effect of those laws and customs and then to determine whether the characterisation constituted a connection between the appellants (or any of them) and the claim area (at [310]).  By failing to ask the correct question, the primary Judge had accorded undue weight to the appellants’ failure (as his Honour saw matters) to discharge their obligations as Nguraritja for the claim area (at [315]).  He had not considered the effect of the failure under the traditional laws and customs of the Western Desert Bloc.  Similarly, because the primary Judge did not address the question posed by s 223(1)(b) of the NTA, he had placed too much emphasis on the appellants’ lack of physical contact with the claim area after 1978 (at [316]).  Consequently, his Honour’s finding that Peter De Rose and the other appellants failed to satisfy the requirements of s 223(1)(b) of the NTA was flawed (at [329]).

3.      Without the benefit of further submissions the Court was not in a position to undertake its own evaluation of the evidence relevant to the question of connection (at [330]).

4.      The primary Judge had made no express finding that the appellants had failed to satisfy s 223(1)(a) of the NTA (at [334]).  On the contrary, his Honour stated (De Rose,at [561]) that some of the appellants:

                ‘may well be Nguraritjaunder their traditional laws acknowledged and traditional customs observed, and may thereby satisfy the requirements of par 223(1)(a) of the [NTA]’.

To the extent that his Honour had made factual findings that might be construed as suggesting that the appellants had not satisfied s 233(1)(a), those findings were flawed by the errors and omissions previously identified in the judgment in De Rose (FC).  As a consequence, the question of whether the appellants or some of them acknowledged the traditional laws and observed the traditional customs of the Western Desert Bloc required further consideration (at [341]).

the remaining issues

9                                 After the judgment in De Rose (FC) was handed down, the parties were invited to participate in conferences before a Registrar of the Court.  The object was to narrow the issues to be debated at the further hearing of the appeal.  The parties did in fact participate in a number of conferences before the Registrar.  While some progress was achieved in narrowing issues, there was disagreement, particularly between the appellants and the Fullers, as to how the remaining issues should be formulated.

AS BETWEEN the appellants and the fullers

10                              In their written submissions filed prior to the further hearing, the appellants identified the principal issue that had emerged from discussions before the Registrar in the following terms:

‘The relevant issue in relation to connection appears to be the relationship between responsibilities in relation to land and connection to that land.  The task of the parties is to identify the evidence that was before the primary Judge in relation to the following questions.

(1)               What are the traditional laws and customs of the Western Desert Bloc about responsibilities for land?

(2)               What are the particular responsibilities under those laws and customs for this land?

(3)               What constitutes a failure to discharge those responsibilities?

(4)               Has there been a failure to discharge those responsibilities?

(5)               What are the consequences of a failure to discharge those responsibilities?

(6)               If there has been a failure to discharge responsibilities in relation to the land, have the appellants failed to prove that they have a connection to the land?’

11                              The appellants contended that sub-questions (3)-(6), which they attributed to the Fullers, were in substance misconceived.  This was because there was simply no evidence that a ‘failure’ by Nguraritja to discharge their obligations in accordance with the traditional laws and customs of the Western Desert Bloc resulted in the loss of rights or interests in land under those traditional laws and customs.  For example, so the appellants argued, a failure to clean water holes or rockholes might incur disapproval or even some form of punishment, but there was nothing to suggest that the consequence of the failure might be the loss of one’s status as Nguraritja for particular land or sites.  Much of the appellants’ written submissions was directed to establishing this proposition.  They pointed, among other things, to a passage adopted by an expert witness, Professor Maddock, from the anthropologists Annette Hamilton and Daniel Vachon.  The passage had been quoted in De Rose (FC), at [280]:

‘These rights [belonging to a person who is Nguraritja for an area] are all potentialities which must, to be fully realised, be asserted and confirmed by appropriate knowledge of the ritual traditions relating to the area.  However, individuals do not forfeit these rights permanently unless they leave the area and show no further interest in it.  Not until an individual dies without ever activating his/her links in the country could one say that that person’s rights have been extinguished.’

12                              The Fullers, in their written submissions, accepted that there was no evidence that under the traditional laws and customs of the Western Desert Bloc a person who otherwise qualifies as Nguraritja for a particular area or site loses that status due to some failure to carry out his or her ‘responsibilities’ in relation to the area or site.  Indeed, they went further and said that it had never been part of their case to suggest that the traditional laws and customs of the Western Desert Bloc incorporated such a ‘rule of defeasance’.  The Fullers maintained that the appellants had raised a false issue.  According to the Fullers, the true question was whether the appellants had discharged their onus of establishing that they had satisfied the requirements of both s 223(1)(a) and (b).

13                              Mr Whitington QC, who appeared with Mr Goodall for the Fullers, identified the two principal remaining issues as follows:

(1)                 Whether the evidence supports a finding that the appellants, or at least one of them, have continuously and so far as practicable acknowledged the traditional laws and observed the traditional customs of the Western Desert Bloc to a substantial degree, sufficient to satisfy the requirements of s 223(1)(a) of the NTA.

(2)                 Whether the evidence supports a finding that the appellants, or at least one of them, by those traditional laws and customs, have a connection with the claim area sufficient to satisfy s 223(1)(b).

14                              Within this general framework, the Fullers argued that s 223(1)(a), as a matter of construction, cannot be satisfied unless the appellants have shown that they acknowledged and observed the traditional laws and customs pursuant to which they claim native title rights and interests in respect of the claim area.  The appellants must show that they complied with their obligations under the traditional laws and customs of the Western Desert Bloc to care for the areas or sites for which they were Nguraritja, since those obligations were closely linked to the norms which conferred on them the status of Nguraritja.  Mr Whitington insisted that the contention did not reintroduce a ‘rule of defeasance’ by another name.  Rather it reflected the requirement in s 223(1)(a) that the rights and interests in relation to land be ‘possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples’.

15                              Mr Whitington submitted that although the primary Judge had not posed the correct question when addressing the issue of connection for the purposes of s 223(1)(b) of the NTA, his Honour’s findings were relevant to the issue of acknowledgement and observance of traditional laws and customs posed by s 223(1)(a).  Mr Whitington contended that the findings, albeit made in the context of ‘connection’, showed that the appellants had failed to demonstrate a sufficiently substantial degree of contemporary acknowledgement and observance of the traditional laws and customs, as required by s 223(1)(a).  He pointed to a number of specific findings, including those made about individual witnesses, which, he said, demonstrated that there had been a substantial breakdown of acknowledgment and observance of traditional laws and customs by the appellants.

AS BETWEEN the appellants and the state

16                              In contrast to the matters in contest between the appellants and the Fullers, there was much common ground between the appellants and the State.  Subject to one reservation, the State accepted that the appellants had established that they had acknowledged and observed the traditional laws and customs of the Western Desert Bloc so as to satisfy the requirements of s 223(1)(a) of the NTA.  Subject to the same reservation, the State accepted that the appellants had shown the connection with the claim area sufficient to satisfy the requirements of s 223(1)(b). 

17                              The reservation was that the State wished to reserve its right to apply for special leave to appeal from the judgment in De Rose (FC) on the issue of:

‘whether the [NTA] recognises the laws of the Western Desert Bloc as sufficient to found native title in a group of individuals who do not claim to obtain their native title through the title held by any person or group who held native title at the time of sovereignty.’

the form of any determination

the positions of the appellants and the state

18                              The appellants and the State jointly proposed a draft determination to give effect to the reasoning in De Rose (FC) and the findings of the primary Judge.  They disagreed, however, on one paragraph (par 6).  The State contended that the determination should provide that native title does not exist in respect of certain improvements on the Station, such as the house, airstrip and dam.  The appellants argued that the determination should merely state, in effect, that native title rights and interests in respect of the improvements are suspended for the duration of the Crown leases over the claim area.  The competing versions of par 6 reflect different views as to the effect of the grant of the three pastoral leases over the claim area. 

19                              With some minor changes, the State’s version of the draft determination is reproduced in Appendix A to this judgment.  The appellants’ version of par 6 is reproduced in Appendix B.

The fullers’ position

20                              The Fullers generally supported the State’s position on the draft determination if (contrary to their submissions) the Court was to take the view that a determination of native title should be made.  However, the Fullers preferred the incorporation of par 6(b), as proposed by the appellants, in lieu of the second sentence of par 6 of the State’s draft determination.  The effect of this would be to prevent the exercise of native title rights and interests within a radius of one kilometre of a house, shed or outbuilding, or within a radius of 500 metres of a dam or stock watering point.  On the State’s version, native title rights and interests would not exist over land or water adjacent to the improvements the ‘use of which is necessary for the enjoyment of the improvements’.

21                              The Fullers raised a further difficulty with the form of par 3(l) of the proposed determination of native title.  Paragraph 3(l) states that the native title rights and interests in relation to the claim area include the right to make decisions about the use and enjoyment of that area by:

‘Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by Nguraritja.’

The Fullers suggested that a right in these terms would be inconsistent with rights conferred on Aboriginal people generally by s 47 of the Pastoral Land Management and Conservation Act 1989 (SA) (‘PLMC Act’), although the point was not developed in argument.

common ground

22                              It became apparent when further argument on the appeal took place that there was some additional common ground among the parties.  This is not to say that the Fullers and the State necessarily accepted the correctness of the reasoning in De Rose (FC).  Rather, the parties agreed that, having regard to the judgment and the manner in which the case had been conducted at trial and on appeal, certain contentions were no longer open in this Court and other issues had been narrowed.

23                              In view of the reasoning in De Rose (FC), the Fullers and the State accepted that the following factual matters were no longer in dispute:

(1)               The appellants’ claims are to be assessed by reference to the traditional laws and customs of the Western Desert Bloc.

(2)        The peoples of the Western Desert region have acknowledged and observed the traditional laws and customs of the Western Desert Bloc without any substantial interruption since the Crown claimed sovereignty over the Western Desert region: cf Yorta Yorta, at [47], per Gleeson CJ, Gummow and Hayne JJ.       

(3)                The traditional laws and customs of the Western Desert Bloc do not recognise a so-called ‘rule of defeasance’ by which a person who is Nguraritja for a particular site or track can lose that status, or the rights and interests that flow from it, by reason of a failure to discharge his or her custodial responsibilities.

24                              The appellants and the Fullers disagreed as to whether the native title rights and interests claimed by the appellants should be classified as ‘individual’ or ‘group’ rights and interests.  They also disagreed as to the proper construction of s 223(1)(a) of the NTA, in particular the nature of the ‘traditional laws’ and ‘traditional customs’ that must have been acknowledged and observed to make out a native title claim.  Notwithstanding these disagreements (to which we shall return) the parties agreed that, having regard to the manner in which the trial was conducted:

(4)                The appellants cannot succeed unless they establish that at least one of them, or one of the persons on whose behalf they claim native title over the claim area, has acknowledged the traditional laws and observed the traditional customs of the Western Desert Bloc in the manner required by s 223(1)(a) of the NTA.

(5)                Nonetheless, the appellants satisfy s 223(1)(a) if they can establish that at least one of them, or one of the persons on whose behalf they claim native title, has acknowledged the traditional laws and observed the traditional customs of the Western Desert Bloc in the required manner.

THE NATURE OF THE RIGHTS AND INTERESTS CLAIMED

25                              The written submissions filed by the parties did not suggest that there was an issue as to whether the native title rights and interests claimed by the appellants should be regarded as communal, group or individual interests.  However, in oral submissions Mr Whitington contended that the appellants should be regarded as making claims as individuals.  He said that the appellants are simply a collection of individuals, whose only uniting characteristic is that they claim to have native title rights and interests in the claim area by virtue of their status as Nguraritja under the traditional laws and customs of the Western Desert Bloc.

26                              Mr Basten QC, who appeared with Mr Collett for the appellants, submitted that the appellants should be regarded as making a group claim (although not a claim to communal rights and interests).  The Solicitor-General for South Australia, who appeared with Ms Brown for the State, inclined to Mr Whitington’s view, but did not seem to think it necessary for the Court to pursue the question.

individual or group rights and interests?

27                              We leave to one side for the moment the question of whether the classification of the interests claimed by the appellants has any practical significance for the present case.  We assume for the purposes of the present discussion that it might. 

28                              The High Court has held that claims for a determination of native title are claims for rights and interests defined in the legislation: Western Australia v Ward (2002) 213 CLR 1 (‘Ward (HC)’), at [16]; see also De Rose (FC), at [155].  Accordingly, the starting point is the definition of ‘native title’ and ‘native title rights and interests’ in s 223(1) of the NTA.  Section 223(1) reads as follows:

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

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

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

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

29                              As the High Court observed in Ward (HC), at [16], the drafting of pars (a) and (b) of s 223(1) is based on what was said by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo (No 2)’), at 70.  The chapeau to s 223(1) also reflects his Honour’s language.  Brennan J said (at 61) that native title rights and interests may be protected by appropriate legal and equitable remedies, whether the rights are ‘possessed by a community, a group or an individual’.  Earlier, he stated that a proprietary community title is capable of recognition by the common law, and, that being so (at 52):

‘there is no impediment to the recognition of individual non-proprietary rights that are derived from the community’s laws and customs and are dependent on the community title.  A fortiori, there can be no impediment to the recognition of individual proprietary rights.’

30                              What was said in Mabo (No 2) cannot control the interpretation of s 223(1), although it may be taken into account.  The reference to ‘communal, group or individual rights and interests’ in the chapeau to s 223(1) recognises that native title may include not only communal rights and interests, but group or individual rights or interests, provided they are ‘in relation to land or waters’: Yorta Yorta, at [33].  The fact that a claimant seeks to establish what a court might classify as individual rights and interests in relation to a claim area, as distinct from what might be classified as communal or group rights and interests, therefore will not preclude that claimant from succeeding in an application for a native title determination.  In that sense, the language of s 223(1) of the NTA is intended to extend the definition of native title to cover all kinds of rights and interests in relation to land or waters that are possessed under the traditional laws acknowledged and customs observed by the Aboriginal peoples.

31                              A native title determination can only be made in respect of rights and interests that satisfy each element of the definition in s 223(1) of the NTA.  In particular, the rights and interests must be possessed under the traditional laws acknowledged and customs observed by the Aboriginal peoples (s 223(1)(a)).  If the traditional laws and customs of the relevant Aboriginal peoples permit only those rights and interests that can be classified as ‘communal’ to be possessed, a claim to ‘individual’ rights and interests will presumably fail.  If, however, the traditional laws and customs allow what can be classified as individual rights and interests to be possessed, and the claimant satisfies the other elements of the definition, the claim will presumably succeed.  All depends on the body of normative rules of the relevant society which gives rise to rights and interests in land or waters: Yorta Yorta, at [40].

32                              In the present case, the native title determination application filed in 1996 identified twelve named applicants.  The application was said to be made on their behalf and on behalf of:

‘Those other Aboriginal persons acknowledged in accordance with traditional laws and customs to be owners of the claim area predominantly through historical, spiritual and ancestral relationship[s] to the land.’

33                              In their written submissions to the primary Judge, the appellants disavowed any claim to a communal title.  As we said in De Rose (FC), at [275], it was:

‘no part of the … appellants’ case, as ultimately presented, that they, or any other persons who might be Nguraritja for the claim area, constituted a discrete cohesive society or community at any given time …  The normative system on which they relied was that acknowledged and observed throughout the Western Desert region.’

34                              The appellants described themselves, in their submissions to the primary Judge, as ‘a group of people seeking a determination of their rights and interests as a group or aggregation of persons’.  In those submissions, the appellants further refined the definition of the group on whose behalf the claim was made, as follows:

‘The application is made by the named individuals on their own behalf and on behalf of other individuals who fulfil the criteria of Nguraritja according to traditional law and custom.’

35                              While it is clear enough that the native title rights and interests claimed by the appellants cannot be classified as ‘communal’, it is instructive to compare other claims that have been regarded as seeking recognition of communal native title.  In Mabo (No 2) itself, for example, the claim was made on behalf of the Meriam people.  Hence the declaration made in favour of the claimants by the High Court referred to the ‘title of the Meriam people’ (at 75-76).  Their claim was referred to as one for communal native title, although Brennan J recognised (at 61-62) that ‘sub-groups and individuals [could] have particular rights and interests in the community’s lands’.  As Beaumont and von Doussa JJ observed in Western Australia v Ward (2000) 99 FCR 316 (‘Ward (FC)’),at [205], it was not necessary for the declaration made by the High Court in Mabo (No 2) to spell out the personal or usufructuary rights of particular individuals within the community. 

36                              Yorta Yorta was also a case in which the claim was for communal native title, although unlike Mabo (No 2) the claim was made under the NTA. The eight named applicants were said to have claimed on behalf of the Yorta Yorta Aboriginal community.  As the joint judgment of Gleeson CJ, Gummow and Hayne JJ observed (at [9]), the application and the relief sought were both creatures of the NTA.   The point of difference between the majority and the minority in Yorta Yorta was essentially whether it was necessary to demonstrate that the Yorta Yorta community had continuously acknowledged traditional laws and customs since sovereignty (see at [109]-[111], per Gaudron and Kirby JJ).

37                              In Commonwealth v Yarmirr (2001) 208 CLR 1 (‘Croker Island Case’) the application for a native title determination was made by a number of named applicants on behalf of several clan groups identified as particular ‘peoples’ (see at [1]).  The trial Judge, Olney J, found that the peoples on whose behalf the proceedings were brought constituted a recognisable community of peoples, known as the Croker Island community, who were descendants of the original inhabitants of the claim area.  His Honour also found that under the traditional laws and the traditional customs observed by the Croker Island community, the community had rights and interests recognised by the common law: Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533, at 601-602.  The determination, upheld on appeal both to the Full Court and the High Court, specifically stated that communal native title existed in relation to the claim area and was held by members of named clans (at 602-603).

38                              It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as ‘communal’, ‘group’ or ‘individual’.  The classification is a statutory construct, deriving from the language used in Mabo (No 2).  If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged.  That is, the traditional laws and customs are those of the very community which claims native title rights and interests.  By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community.  Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community.

39                              The distinction between group and individual rights and interests (to the extent it matters) is perhaps more difficult to identify.  An example of group rights and interests may be those held by a sub-set of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas.  The members of the sub-set may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community.  The members of the sub-set might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites.  Ordinarily, it might be expected that the ‘group’ holding native title rights and interests would have a fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed.

40                              A person holding individual native title rights and interests, by contrast, may not necessarily share common characteristics, in relation to land or waters, with other members of that community under the relevant body of traditional laws and customs. Unless the traditional laws and customs provide for the individual rights and interests to be transmitted to other community members, they presumably will terminate upon the death of the holder.

41                              An example of the recognition of group native title rights and interests is perhaps the determination made in favour of the members of three estate groups in Attorney-General (NT) v Ward (2003) 134 FCR 16 (‘Ward (FC) (No 2)’), at [11].  The original native title claims in Ward included a claim to communal native title by the Miriuwung and Gajerrong people, as well as a claim to part of the claim area by the estate groups: Ward v Western Australia (1998) 159 ALR 483, at 511, 539, per Lee J.  The estate groups were said to acknowledge and observe the laws and customs of the wider Miriuwung and Gajerrong peoples in respect of land, but to have rights under those laws and customs in respect of certain areas of country (at 529).  Some members of the estate groups were said to have rights to speak for country (at 529, 539-540).  It is not entirely clear whether each of the estate groups, which were primarily based on descent (at 540), could be regarded as a discrete community, although the trial Judge, Lee J, described them as ‘economic units’ (at 541).

42                              Lee J concluded (at 638) that the Miriuwung and Gajerrong community held native title in respect of part of the claim area, but that the estate groups did not hold native title.  In his view, the native title that existed in the determination area was ‘a communal title held collectively by the members of the community’ (at 638). 

43                              Following appeals to the Full Court and the High Court, the determination made by consent in relation to the claim area in the Northern Territory provided that certain land and waters were held by members of the three named estate groups.  Each of the estate groups was said to include members by reason of patrilineal descent, as well as matrifiliates and persons adopted into such descent relationships (Ward (FC) (No 2),at [11]).  Since the native title rights and interests held by members of the estate groups were referable to the traditional laws and customs of the wider Miriuwung and Gajerrong community, it would seem that they can appropriately be classified as group rights and interests rather than communal rights and interests.

44                              If it is necessary to classify the rights and interests claimed by the appellants in the present case, they are best regarded as group rights and interests, rather than individual rights and interests.  It is true that the appellants do not claim to be a discrete or functioning community and that the normative system on which they rely for their rights and interests is that of the wider Western Desert Bloc.  But the appellants claim to be Nguraritja for the claim area and, by virtue of that status, they have common rights and responsibilities under the laws and customs of the Western Desert Bloc in relation to the claim area (although not necessarily in relation to precisely the same sites or tracks).  Moreover, the appellants claim on behalf of all people who are Nguraritja for the claim area.  The composition of that class will vary from time to time depending upon who can satisfy the rules identified by the primary Judge for identifying Nguraritja (De Rose (FC), at [37]-[40], [58]-[61]).  On the appellants’ case, native title rights and interests over the claim area will not cease on the death of the last survivor among them. 

IN WHAT WAYS MIGHT the classification matter?

45                              One reason the classification of native title rights and interests might matter is that if the appellants are claiming as individuals, it might be necessary to decide whether each and every one of them has established that he or she has individual interests in relation to the claim area that satisfy s 223(1) of the NTA.  While the primary Judge appears to have regarded the appellants as making a group claim, he did separately assess the claim of each appellant and indeed considered whether other indigenous witnesses were Nguraritja for the claim area.  As we have noted, however, at the further hearing the Fullers accepted that the appellants are entitled to succeed if any one of them can establish that he or she has native title rights and interests over the claim area by virtue of being recognised as Nguraritja under the traditional laws and customs of the Western Desert Bloc.  Thus the Fullers did not ask the Court to make findings about each and every appellant, if it is satisfied (contrary to the Fullers’ submissions) that at least one of the appellants has native title rights and interests over the claim area.

46                              A second possibility is that if the appellants are claiming as individuals, it may be necessary to record that any interests they hold are individual rights and interests and not group or communal interests.  Section 225 of the NTA defines ‘determination of native title’ in terms that require the Court to state, inter alia:

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

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

47                              In order to comply with s 225, it is arguable that a determination that native title exists must specify whether the rights and interests which are the subject of the determination are communal, group or individual: cf Ward (FC), at 374, per Beaumont and von Doussa JJ.  However, Mr Whitington did not dispute that if any one of the appellants can satisfy s 223(1) of the NTA, a determination should be made in the terms jointly proposed by the appellants and the State in par 2 of their draft determination.  That paragraph states that the persons who hold the group rights comprising native title rights and interests are the Aboriginal persons who are Nguraritja according to the traditional laws and customs of the Western Desert Bloc.  Mr Whitington therefore seemed to accept that if, for example, Peter De Rose can establish that he has native title rights and interests over the claim area, it is appropriate to make a determination acknowledging the existence of group rights in persons who are Nguraritja according to the traditional laws and customs of the Western Desert Bloc.  In any event, as has been discussed, the interests claimed by the appellants are best described as group interests.

48                              A third possible reason why the classification might matter is the requirement in the NTA, as amended by the Native Title Amendment Act 1998 (Cth) (‘NTAA 1998’) that the person or persons making a native title determination application be authorised to do so by the ‘native title claim group’: that is, by all the persons who, according to their traditional laws and customs, hold the common or group rights comprising the particular native title claimed: ss 61(1), 253 (definition of ‘native title claim group’).  The manner in which a native title group can ‘authorise’ an application is specified in s 251B of the NTA.

49                              As we explained in De Rose (FC) (at [26]-[28]), neither s 61(1) (in its amended form) nor s 251B applied to the application in the present case, since the application was filed in this Court in 1996, before the NTAA 1998 came into force.  At the time the application was filed, any person or persons claiming to hold native title either alone or with others, could make an application under s 13(1) of the NTA for a determination of native title.  No authorisation by a native title claim group was required.  Section 61(3) of the NTA, as then drafted, merely required an application by persons claiming to hold native title with other persons to describe or otherwise identify those other persons, although it was not necessary to name them or to say how many there were (see now s 61(4)). 

50                              While it has not been necessary in this case to ascertain the identity of members of the ‘native title claim group’ for the purposes of s 61(1) of the NTA, the Court must do so in cases commenced after the NTAA 1998 came into force.  In such cases, the Court is required to determine who holds the ‘common or group rights and interests comprising the particular native title claimed’ (s 61(1)).  The authorities on this question are not entirely consistent, but we do not need to consider the competing interpretations in the present case: see Tilmouth v Northern Territory (2001) 109 FCR 240; cf Colbung v Western Australia [2003] FCA 774; Bodney v Western Australia [2003] FCA 890.  Nor do we have to consider how s 61(1) applies in a case where one or more claimants seek a determination in respect of individual native title rights and interests.

CONSTRUCTION OF S 223(1)(a) OF THE NTA

THE COMPETING VIEWS

51                              The judgment in De Rose (FC) addressed (at [155]-[177]) the construction of s 223(1) of the NTA in the light of the High Court authorities.  There is no need to repeat that analysis here.  It is, however, necessary to consider an issue concerning the construction of s 223(1) that was raised for the first time at the further hearing.

52                              The Fullers accepted that the question of whether s 223(1)(a) of the NTA is satisfied is one of fact: Ward (HC), at [18].  But they argued that s 223(1)(a), on its proper construction, requires the appellants (or at least one of them) to establish that they had acknowledged and observed the traditional laws and customs of the Western Desert Bloc which gave rise to the very native title rights and interests claimed by them.  Mr Whitington submitted that it was not enough for the appellants to show that they acknowledged and observed some traditional laws and customs.  They had to acknowledge and observe the normative rules which conferred possession of native title rights and interests in the claim area – that is, they had to acknowledge and observe the very rules relating to their status as Nguraritja. 

53                              Mr Whitington interpreted this requirement to mean that the appellants must fail unless they show that at least one of them discharged his or her responsibilities as Nguraritja for the claim area.  According to Mr Whitington, it is not enough to show acknowledgement and observance of other aspects of the Nguraritja rules.  Since ‘continuity of acknowledgement and observance is a condition for establishing native title’ (Yorta Yorta, at [90]), the appellants must show that one or more of them had continuously observed their obligations as Nguraritja for the claim area.  As we have noted, Mr Whitington insisted that this was not reintroducing the Fullers’ ‘rule of defeasance’ argument in a different guise, but was simply a matter of applying the language of s 223(1)(a).

54                              The appellants did not dispute that they had to show that at least one of them (or one of the other indigenous witnesses who claimed to be Nguraritja for the claim area) had acknowledged and observed the traditional laws and customs of the Western Desert Bloc in relation to the claim area.  However, Mr Basten rejected the contention that the appellants could not succeed in obtaining a determination of native title unless they demonstrated that they had discharged their responsibilities as Nguraritja.  He submitted that it was enough that the appellants had acknowledged and observed the ‘right conferring rules’. In this case, these were the rules of the Western Desert Bloc identifying those people who, from time to time, were Nguraritja for the claim area.

WHAT MUST CLAIMANTS ESTABLISH?

55                              What, then, must claimants establish in order to satisfy s 223(1)(a) of the NTA?  It is a striking feature of s 223(1) that some expressions are used on more than one occasion.  In particular, the expression ‘Aboriginal peoples or Torres Strait Islanders’ is used on three occasions: in the chapeau and in pars (a) and (b) of s 223(1).  In pars (a) and (b), unlike the chapeau, the expression is preceded by the definite article.  Nonetheless, the Solicitor-General for South Australia submitted, we think correctly, that the drafter of s 223(1) must have intended to use the expression to refer to the same peoples on each occasion.  It is, after all, hardly likely that the same expression would be used in different senses within the same sub-section of the NTA, especially one that defines key terms.

56                              Section 223(1)(a) of the definition requires persons claiming native title rights and interests to show that the claimed native title rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed by the Aboriginal peoples.  Section 223(1)(b) imposes a requirement that the Aboriginal peoples, by ‘those laws and customs’, have a connection with the land or waters.  Given that the expression ‘the Aboriginal peoples’ has the same meaning in pars (a) and (b) of s 223(1), s 223(1) must be referring to the Aboriginal peoples who have a connection to the land or waters by the traditional laws and customs that those peoples have acknowledged and observed: Ward (HC), at [64].

57                              It follows that a claimant community or a claimant group whose members themselves have never acknowledged or observed traditional laws and customs cannot succeed in a claim for native title rights and interests merely because other Aboriginal peoples have acknowledged and observed the relevant traditional laws and customs.  This would be so even if the traditional law and customs identified the non-observant claimant community or group as ‘possessing’ rights and interests in particular land or waters.  If it were otherwise, native title rights and interest might be successfully claimed over land or waters by a claimant community or group whose members have not only had no physical connection with the land or waters, but have never acknowledged or observed traditional laws or customs.  Indeed, so much appears not to be in dispute in the present case.  The position would be similar where a native title claim is made by one or more individuals who do not assert a communal or group claim.

58                              If this is correct, s 223(1)(a) of the NTA requires a native title claimant community or group to establish that they have rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that community or group.  This proposition does not mean, however, that a claim to communal or group native title rights and interests can succeed only if every member of the claimant community or group has acknowledged and observed the relevant traditional laws and customs.  It is a question of fact and degree as to whether the definition of native title rights and interest in s 223(1) is satisfied.  There are likely to be cases in which a claim by a community or group succeeds notwithstanding that not all members of the community or group have acknowledged and observed traditional laws and customs.  In such cases the question is likely to be whether the community or group, as a whole, has sufficiently acknowledged and observed the relevant traditional laws and customs.

59                              One of the factual issues that often arises and has arisen in this case, is the significance of interruption to use and enjoyment of the claimed land.  In Yorta Yorta, the joint judgment of Gleeson CJ, Gummow and Hayne JJ considered this question.  Their Honours said this (at [84]-[85]):

‘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.

Secondly, account must no doubt be taken of the fact that both pars (a) and (b) of the definition of native title are cast in the present tense.  The questions thus presented are about present possession of rights or interests and present connection of claimants with the land or waters.  That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant.’

60                              Even so, the language of s 223(1)(a) contemplates a link between the rights and interests in relation to land or waters said to be possessed by the claimant community or group and the traditional laws and customs that the community or group claims to have acknowledged and observed.  Thus, it may not be enough to satisfy s 223(1)(a) that the members of a community or group have acknowledged and observed traditional laws and customs that appear to be unconnected with the possession of rights and interests in land or waters.  To this extent, the Fullers’ submission is correct.  However, given the centrality of the relationship between Aboriginal people and their country, any dichotomy between traditional laws and customs connected with rights and interests possessed in land and waters and those that are unconnected with such rights and interests may be difficult to establish.

61                              Professor W E H Stanner, in his Boyer Lectures entitled “After the Dreaming” (delivered in 1968 and reproduced in the book of his essays, White Man Got No Dreaming (1979),  at 230), observed that no English words can adequately express the links between an Aboriginal group and their homeland.  He stated that to them the land is their ‘hearth, home, the source and locus of life, and everlastingness of spirit’.  As such, he suggested that the land forms part of the set of constants that give Aboriginal persons their affiliation with other Aboriginal groups, links their whole network of relationships and provides the foundation for the complex structure of their social groups.  That being so, if there are traditional laws and customs that are unconnected with the possession of rights and interests in relation to land and waters, it will perhaps be unusual for members of Aboriginal groups or communities to acknowledge and observe only those laws and customs.

62                              It would read too much into s 223(1)(a) to require the claimants to show a continuing physical connection to the land.  ‘Connection’ is dealt with in s 223(1)(b) and, as the High Court made clear in Ward (HC), at [64], par (b) is not directed to how Aboriginal peoples use or occupy land or water.  It is directed to whether the peoples have a connection to land or water by the traditional laws acknowledged and the traditional customs observed by them.  It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area.  Of course, the length of time during which the Aboriginal peoples have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed.  Everything will depend on the circumstances.

63                              What sort of link, then, must be established between the rights and interests in relation to land or waters said to be possessed by a native title claimant community or group and its acknowledgement and observance of traditional laws and customs?  In our view, it cannot be stated more precisely than that the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land or waters.  Contrary to the Fullers’ submissions, s 223(1)(a) does not necessarily require claimants to establish that they have continuously discharged their responsibilities, under traditional laws and customs, to safeguard land or waters.  Of course, the traditional laws and customs may provide that the holders of native title lose their rights and interests if they fail to discharge particular responsibilities.  But s 223(1)(a) does not impose an independent requirement to that effect.

64                              Obviously enough, evidence that a native title claimant community or group has faithfully performed its obligations under traditional laws and customs would provide powerful support for its claim to possess native title rights and interests (assuming that the other requirements of s 223(1) are met).  But evidence that members of the community or group have not faithfully met their responsibilities, for example as Nguraritja for particular sites, will not necessarily be fatal to their claim.  It must always be a matter of fact and degree as to whether the community or group has acknowledged and observed the traditional laws and customs on which it relies to establish possession of native title rights and interests.

ACKNOWLEDGEMENT AND OBSERVANCE

A RECAPITULATION OF DE ROSE (FC)

65                              The first question is whether the appellants have established that any of them (or any of the other indigenous witnesses) possess rights and interests in relation to the claim area under the traditional laws of the Western Desert Bloc acknowledged and the traditional customs of the Western Desert Bloc observed by them.  The answer to this question, given the way the appeal was argued, depends on whether the appellants have shown that one or more of them have acknowledged the traditional laws and observed the traditional customs that recognise them as Nguraritja for the claim area and define their rights and responsibilities as Nguraritja, to an extent sufficient to satisfy the requirements of s 223(1)(a) of the NTA.

66                              As the Fullers submitted, the appellants bear the onus of satisfying the Court that they, or at least one of them, had acknowledged and observed the traditional laws and customs to the requisite extent until the date of the trial.  The Fullers submitted that the appellants had not discharged this burden.  In support of this submission, they canvassed much of the evidence that had been debated at the first hearing of the appeal in May 2003.  The focus of that hearing was the primary Judge’s finding that the appellants had not satisfied s 223(1)(b) of the NTA. The Fullers argued at the further hearing that the same evidence that led to that finding (which was held to be flawed in De Rose (FC)) necessarily led to the conclusion that the appellants had not discharged the burden of showing that they could satisfy s 223(1)(a) of the NTA.

67                              In De Rose (FC) we summarised (at [270]-[271]) the principal findings made by the primary Judge that appeared to support or rebut (as the case may be) the appellants’ claim to determination of native title in respect of the claim area.  It is convenient to repeat that summary here, bearing in mind that the primary Judge was concerned mainly with the question of ‘connection’ under s 223(1)(b) and that (as we held in De Rose (FC)) he mistakenly emphasised certain matters, such as the absence of a cohesive local community or group.

68                              We identified the principal findings supporting the appellants’ case as follows:

‘l     There was a time early in the 20th century and before when a group of Aboriginals possessed, used and occupied the claim area to the exclusion of all others.  The traditional owners at that time were those recognised and accepted by the others as Nguraritja for the claim area (at [898]).  The Nguraritja once had a connection with various parts of the claim area and other areas in close proximity ([899]).

• Under the traditional laws and customs of the Western Desert Bloc, a claimant could become Nguraritja for land and have a connection to land by any one of four means, provided the claimant was recognised as Nguraritja for the claim area by other Nguraritja (at [562]).  The four means were that a claimant had been born of the claim area; that the claimant had a long-term physical association with the claim area; that the claimant’s ancestors had been born on the claim area; and that the claimant had a geographical and religious knowledge of the claim area ([562]).  To the extent that the rules for determining who was Nguraritja for land had developed since sovereignty, the changes constituted an example of evolutionary traditional law ([102]).
• The traditional laws and customs asserted by the appellants to support their claim to be Nguraritja for the claim area were essentially the same as those that exist throughout the Western Desert ([102]).
• The population shifts that had led to the appellants and their forebears coming to the vicinity of the claim area from the west were part of the history and social structure of the Aboriginal people of the Western Desert Bloc and thus (as we interpret his Honour’s findings) occurred in accordance with the traditional laws acknowledged and customs observed of the Western Desert Bloc ([346], [372]).
• Peter De Rose was Nguraritja for a path through a water course joining most, if not all, of the Malu sites on De Rose Hill Station ([100]).
• Other appellants “may well be” Nguraritja under the traditional laws acknowledged and the customs observed of the Western Desert Bloc and may thereby satisfy s 223(1)(a) of the NTA ([561]).
• The ceremonies and rituals conducted at 13 sites of significance to the appellants established that the witnesses who gave the evidence and the people who participated in the ceremonies, stories, dances and songs once had a religious or spiritual connection with the site at which the particular activity was performed ([380]).
• The Aboriginal witnesses had not lost their culture.  There were many examples of ceremonies and conduct that showed that the Aboriginal witnesses retained knowledge of their traditional laws and customs ([903]).
• The witnesses and participants in the ceremonies, stories, dances and songs showed that they possessed knowledge of the particular sites and of the activities in which they engaged at those sites (at [380]).  That knowledge would have satisfied the primary judge that there was a relevant connection between those people and the claim area were it not for the fact that there had been a virtual absence of all Aboriginal people from the claim area for 20 years or more ([381]).
• The rock art at Inyata, the songs, dances and ceremonies performed for the Court at Wantjapila, Alaylitja and Maku, the significance of rock pools at Kirara and Ilpaka and the restricted stories associated with Wipa were all examples of facts or events which, at one stage, would have answered the requirement of connection with the claim area laid down by s 223(1)(b) of the NTA ([900]).’

69                              The principal findings that, on his Honour’s reasoning, were inimical to the appellants’ case were summarised as follows:

‘l    While Peter De Rose was Nguraritja for the claim area and other appellants may have been Nguraritja for the claim area, all had abandoned any connection they may have had, mostly long ago ([599] (Peter De Rose)); ([620] (Riley Tjayrany)); ([637] (Whiskey Tjukanku)); ([657] (Witjawara Curtis)); ([681] (Peter Tjutatja)); ([699] (Tim De Rose)); ([735] (Mabel Pearson)); ([760] (Owen Kunmanara)); ([771] (Michael Mitakiki)); ([794] (Johnny Wimitja De Rose)); ([808] (Cissie Riley)); ([816] (Minnie Nyanu)); ([823] (Edie Angkaliya)); ([828] (Carlene Thompson)); ([848] (Lilly Yupuna Baker)); and ([857] (Jeannie Kampukuta Inpiti)).

• There were substantial gaps in the evidence of the Anangu witnesses about communal and social life and religious, social and ritualistic activities ([901]).  There was not sufficient evidence that would point to the presence at any time of a social, communal or political organisation on or near the claim area ([901], [911]).
• While the Aboriginal witnesses had not lost their culture, the extent to which evidence was led on the continuance of traditional laws and customs was inadequate to reveal the necessary connection with the claim area ([903]).  The evidence about the Tjukurpa and the songs, dances and ceremonies showed that these matters had not been forgotten, but they did not establish, as a matter of probability, that a particular individual still maintained a spiritual connection to the claim area ([904], [906]).
• Ongoing physical connection with the claim area, apart from occasional hunting, ceased in 1978 when Peter and Tim De Rose left because of Doug Fuller’s alleged delay in telling them of Bobby’s death.  But cultural, traditional and social activities had ceased before then (at [905], [906], [910], [911]).
• The Aboriginal witnesses had claimed that they were too frightened to return to De Rose Hill.  But this claim was undercut because there was little evidence that during the period they were supposedly deprived of access to De Rose Hill they had visited sacred and secret sites on other parts of their country outside the boundaries of De Rose Hill ([907]).  Accordingly, adherence to (as distinct from knowledge of) traditional laws and customs has eroded away ([907]).
• With the possible exception of Riley Tjayrany, the appellants had no concrete perception of their intended use of the claim area if they succeeded in the litigation ([908]).  There had been a total failure to care for any of the sacred sites on the claim area ([908]).
• If the appellants had to demonstrate a continuous connection between the claimant community and the claim area from sovereignty to trial, they had failed to do so ([909]).  If the test was whether the appellants had continued to acknowledge and observe traditional laws and customs and, if so, whether the laws and customs as so acknowledged and observed remained connected to the land, the appellants had failed to show that they continued to acknowledge and observe traditional laws and customs in connection with the claim area ([909]).
• Since 1978, the appellants have been scattered to the four winds.  There was no evidence that they meet with each other.  Thus there was no evidence that amounted to communal or group acknowledgement of traditional laws or group observance of customs ([910]).
• While a spiritual connection to land can support a native title claim, apart from the occasional hunting, no other physical or spiritual activity had taken place in the previous 20 years.  Nor had there been for many years an Anangu community having a physical or spiritual connection with the claim area ([911]).  Thus, there was a lack of connection between the appellants and the claim area; the appellants had lost their physical and spiritual connection in the claim area; and because of that loss there had been a breakdown in the acknowledgement and observance of traditional laws and customs ([911]).
• The evidence did not reveal anything like the cohesive society described in Milirrpum v Nabalco.  Such a society constitutes a working example of the kind of communal or group rights and the degree of connection in the land that would establish native title ([912]).
• By reason of

(i)                 the physical departure of the last of the appellants from the claim area in 1978;

(ii)               the fact that none of those who claim to be Nguraritja have since that time lived together as a cohesive group;

(iii)             the failure of most appellants since leaving the claim area (apart from field trips) to return; and

(iv)             the failure by an appellant to care for any sacred site or perform any ceremony in the claim area,

the appellants could not prove that they retained a connection to the claim area by traditional laws and customs acknowledged and observed by them sufficient to satisfy s 223(1)(b) of the NTA ([913], [914]).’

            In De Rose (FC) we noted that the primary Judge had rejected some of Peter De Rose’s evidence.  However, his Honour did accept much of his evidence and cast no doubt on other aspects of it.  We gave the following account (at [287]-[302]) of evidence either accepted or not doubted by the primary Judge:

            ‘Peter De Rose, like most of the Aboriginal witnesses, gave evidence through an interpreter.  He spoke both Pitjantjatjara (the dialect of his mother) and Yankunytjatjara (the dialect of his stepfather, Snowy De Rose), although he was more inclined towards the former.  Peter’s Aboriginal name was Wapala.  The name means “white man” and indicates that Peter De Rose’s biological father was probably European.  Some Anangu people still referred to him by that name.

            Peter’s mother, Katjiwala, was a Pitjantjatjara woman, who had grown up at Kantja (on De Rose Hill) and Witjintitja (Granite Downs).  Peter believed that his stepfather, Snowy, was a Yankunytjatjara man whose “cord dropped off De Rose Hill way”.  Peter identified three sites in the north-eastern section of De Rose Hill as the area where Snowy had told him that the event had recurred.  For these reasons, Peter considered Snowy, who was born at Lambina, a station to the east of De Rose Hill, to be Nguraritja for the De Rose Hill area.  He also believed that the De Rose Hill area was the country of Snowy’s father (Jimmy Piti Piti) and grandfather.  The primary Judge appeared to accept that Jimmy Piti Piti had moved east, perhaps as long as 100 years ago in a precontact migration.  The primary judge cast no doubt on the genuineness or accuracy of Peter’s beliefs on these matters.

            Peter was born in about 1949.  At that time his mother, Katjiwala, and his stepfather, Snowy, were working on De Rose Hill.  Peter believed, and the primary judge accepted, that he had been born under an ironwood tree on the track of the Kalaya Tjukurpa.  For that reason, the Kalaya Tjukurpa had become his Tjukurpa.

            Both Peter and his mother were “put in the smoke”, in accordance with tradition, at a spot to the north of the ironwood tree where he had been born.  Peter was reluctant to expand on the practice of “smoking” because (he said) the Aboriginal women would not want him to talk about it.  The primary judge did not suggest that Peter’s reluctance reflected anything other than a genuine cultural belief.

            As a young child, Peter lived with his family in a wiltja or “humpy”.  Katjiwala worked at the homestead on De Rose Hill and Snowy worked on the Station.  Peter’s younger sister, Lorna, was born on De Rose Hill in about 1954.  In those years, there was a small camp of Aboriginals on the Station, all of whom lived in wiltja.  They included both Pitjantjatjara and Yankunytjatjara people.  The food in the Anangu camp included damper, kangaroo meat and goanna, as well as bush tucker.  The men mostly hunted with spears and spear throwers, although a few had rifles.

            As a small boy, aged between five and seven, Peter lived in the young men’s camp at De Rose Hill, which was separate from the main camp. A few years later, because Snowy had an argument with Doug Fuller, the family moved to Finke.  Peter stayed there for 18 months and received some schooling.  He left Finke in about 1959 to join his parents at Mount Cavenagh.  Shortly after, the family returned to De Rose Hill to live.

            Peter said that before leaving for Finke, his family would go on holidays and visit sites within the claim area.  Snowy taught him stories about different sacred and secret places that were only for men.  He also learned the signs for water, where to hunt and where to collect bush tucker.

            When Peter was a tjiranka (a child of either sex in early teenage years) he started helping in the stock camps.  Later he worked with horses and cattle.  He was taught about different places and was also shown where the soakages and rock-holes were.  At this time, he went out hunting the malu (kangaroo) with the men and was introduced to the intricacies of the hunt.  Owen Kunmanara, the head stockman, had taught him a little about the Tjukurpa.  When Peter was still a boy of 14 or 15, a kungkatja (little beard), he became a nyiinka (a bush boy) in a kipara (wild turkey) ceremony.  Subsequently, he was taken by an ulpuru (a special boy, a messenger who travels with others to call people from various locations to attend the man-making ceremonies) to a ceremony at Areyonga where he was made a man (a Wati Pukuti).  As a man, Peter went with Owen and another man to Ilpaka, on De Rose Hill, where he was told about the Tjukurpa for the site.  He had learned other stories from some of the elders.  Subsequently, he became a Wati Katarara which was the stage prior to the final stage in the life of a male Anangu, namely - that of Tjilpi (old men).  Tjilpi hold ultimate responsibility for passing on the sacred stories they have learnt in their lifetime and are treated with respect and as having considerable authority. 

            Peter became head stockman himself at De Rose Hill in about 1970, when he was about 21.  He said that he would still visit Dreaming tracks out of working hours.  The primary judge observed that that claim contradicted other evidence by Peter that he would have been at risk of being sacked if he had taken time to attend the sites, but his Honour did not resolve the conflict.  At about this time Snowy, who was living at Mount Cavenagh or Indulkana, visited De Rose Hill Station because it was “his country”.  On those occasions Snowy would also hunt.

            Work was not always constant at De Rose Hill Station.  When he was laid off, Peter would live at Yuta, on the Station, and visit other sites to obtain wood for spears or gather mingkulpa (wild tobacco).

            Peter De Rose left De Rose Hill in 1978, shortly after the death of his half brother Bobby.  As we have explained, his Honour found that Peter “may have well thought, albeit incorrectly, that there had been some delay on Doug’s part” in telling him of Bobby’s death.  His Honour also expressed the view that if the Aboriginal people left De Rose Hill for an unreasonable or illogical reason, they could not turn their lack of reasonableness to their advantage.

            After Peter left De Rose Hill he worked as a builder’s labourer.  About 10 years later he was involved in establishing a homeland at Railway Bore, on AP Lands, a few kilometres to the south of De Rose Hill.  This was Peter’s idea because he wanted a homeland close to De Rose Hill country.  He stayed there for six years, from 1990 until 1996, until forced to leave because the quality of water was poor.  During this time, he worked with young Aboriginal people from Indulkana who had a problem with petrol sniffing.  Of course, by 1996, the claim for a determination of native title had already been lodged.

            After he left De Rose Hill Station in 1978, Peter De Rose returned from time to time in order to hunt.  He did not look after any sites on the Station.  Peter explained his failure to visit the Station more often, or to camp there, as a consequence of his fear of Doug and Rex Fuller.  The primary judge noted that there was some difficulty reconciling this claim with his written statement that he had returned to the Station after Bobby’s death to visit Doug.  His Honour did not, however, make a finding that Peter’s explanation was untrue.  Rather, he found that Peter did not have any reason to be afraid to enter the property to hunt or to carry on traditional activities.

            Peter De Rose also said that while at Railway Bore he became uneasy about visiting De Rose Hill Station because he was worried he might frighten the cattle.  His Honour thought that this was a “paltry excuse”.

            Peter claimed that, as Nguraritja, he had responsibilities for his country.  He also had an obligation to teach appropriate people about the places on De Rose Hill.  While his Honour accepted Peter’s claim to be Nguraritja for a watercourse on the claim area, he found that Peter had given little detail as to how he performed his duties, nor had he identified anyone who had benefited from his teaching.

However, it is important to note that Peter De Rose gave evidence as to the main Tjukurpa [Dreamings] for his country and as to the role and responsibilities of Nguraritja.  Thus Peter identified his own Tjukurpa, the Kalaya Tjukurpa, and four other Dreaming tracks: the Malu, Kanyala and Tjurki Tjukurpa; the Pakalira Tjukurpa; the Papa Itari Tjukurpa; and the Seven Sisters Tjukurpa. Peter De Rose gave detailed evidence in relation to the Kalaya Tjukurpa and the Malu, Kangyala and Tjurki Tjukurpa and Papa Itari Tjukurpa, the substance of which appears to have been accepted by his Honour as accurate.  Peter De Rose said that he was unable to discuss the Pakalira Tjukurpa in mixed company because it was of great significance and secret to men, while the fifth Tjukurpa he regarded as only for women.  The primary Judge cast no doubt on the genuineness of Peter’s reluctance to discuss the Pakalira Tjukurpa.’

70                              Later in the judgment, we pointed out (at [317]) that his Honour had given considerable weight to what he regarded as Peter De Rose’s ‘absence from the claim area’ after 1978, except for his occasional hunting visits.  We also pointed out that his Honour appeared to have given little weight to Peter’s spiritual links with the land in the manner contemplated by the Full Court in Ward (FC).  In that case the Full Court, in the context of a claim to communal native title rights and interests, observed (at [243]):

‘The connection can be maintained by the continued acknowledgement of traditional laws, and by the observance of traditional customs.  Acknowledgement and observance may be established by evidence that traditional practices and ceremonies are maintained by the community, insofar as that is possible, off the land, and that ritual knowledge including knowledge of the Dreamings which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation.  Evidence of present members of the community, which demonstrates a knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.’  (Emphasis added.)

71                              In De Rose (FC), we said this about Peter De Rose’s knowledge and observance of traditional laws and customs (at [318]-[320]):

            ‘Peter De Rose plainly had a detailed knowledge not only of the concept of Nguraritja but of the Tjukurpa.  It was his evidence, after all, that provided the foundation for the primary judge’s findings on these matters. … Peter De Rose participated in the ritual ceremonies, stories, dances and songs that established to his Honour’s satisfaction (at [380]) that the participants “once had a religious or spiritual connection with the site at which the particular activity was performed”.  Peter De Rose gave evidence at Ilpalka, a rock hole and semi-permanent source of water, which his Honour accepted was an important site on the Kalaya (Emu) Dreaming track – that is, Peter De Rose’s own Tjukurpa.  After the proceedings had been instituted, he was one of those who engaged in a dispute with the Fullers about the disturbance of boulders and the construction of a fence around the rock hole at Ilpalka.  He was also engaged with other appellants in a similar dispute with the Fullers after the proceedings began about the clearing of trees and the insertion of a line of posts and star pickets in the Apu Maru area.  The rights and wrongs of the disputes matter less than the fact that Peter De Rose and other appellants asserted their rights and discharged their responsibilities in relation to those sites, which were of special significance to them.  Indeed, they had asserted their rights in relation to the claim area by December 1994, when the application for a determination of native title was filed with the Native Title Tribunal.

            It is also of some significance that in about 1990 Peter De Rose was involved in establishing a homeland at Railway Bore, very close to De Rose Hill Station, because (as his Honour found) he wanted a homeland close to his country.  It is difficult to see this as anything other than strong evidence of a spiritual connection with the claim area.  In the final section of the judgment, his Honour made a general observation (at [910]) that the appellants had been “scattered to the four winds”.  Whatever might have been the case with some of the other appellants, Peter De Rose seems to have gone to a great deal of trouble to set up residence close to his traditional country for spiritual reasons.  If “scattered to the four winds” means having left one’s own country and gone to distant parts, the expression cannot fairly be applied to Peter De Rose.

Further, his Honour did not find that Peter De Rose’s spiritual connection with the secret and sacred places on his country was not genuine, even though he was critical of Peter De Rose’s failure to discharge his responsibilities to the extent his Honour thought appropriate, particularly his obligation as Nguraritja to visit sacred sites and ensure they are clean and maintained.’

72                              The primary Judge did not analyse in depth the general role played by the Tjukurpa in the customs and beliefs of the peoples of the Western Desert Bloc.  His Honour preferred to concentrate on the particular Dreamings described by individual applicants and claimed as ‘their’ Tjukurpa.  Five Dreamings were treated in this way ([53]-[74]): Kalaya Tjukurpa (Emu Dreaming); Malu, Kanyala and Tjurki Tjukurpa (Kangaroo, Euro and Owl Dreaming); Pakalira Tjukurpa (said in evidence to be miilmiilpa (very sacred)); Papa Itari Tjukurpa (Dog Dreaming); and the Seven Sisters Tjukurrpa.

73                              It is clear enough from this discussion that not only do the Tjukurpa identify places of special significance, but they explain what happened in the ‘creation time’.  The Tjukurpa are embodied in physical features of the landscape.  They also contain within themselves rules and practices which should be followed.  The rules and practices are not reduced to writing, but are recorded in various ways at particular sites, in ceremonies, songs and rituals and in sacred objects.  Peter De Rose himself gave detailed evidence about the Kalaya Tjukurpa (his Dreaming) and the Malu Tjukurpa, although Peter Tjutatja was ‘the boss’ for the latter and also gave evidence about it.  Peter De Rose and other indigenous witnesses gave evidence about the remaining Dreamings.

74                              The primary Judge was influenced by his view that Peter De Rose and the other appellants had not provided satisfactory reasons or excuses for their failure to discharge their responsibilities as Nguraritja or to maintain contact (or at least greater contact) with the claim area.  He found, however, that the conduct of Doug Fuller was ‘a factor’ in the decision of the Aboriginal people to leave De Rose Hill Station, although not a ‘major factor’.  We pointed out (at [322]) that this finding was not easy to reconcile with an earlier finding that Doug Fuller had a demeaning attitude towards Aboriginal people, did not hesitate to intimidate them with firearms, was a strict disciplinarian and would not hesitate to physically assault people when he thought it appropriate to do so.

75                              We expressed the view (at [323]) that his Honour’s findings were consistent with fear of the Fullers having played a part in the failure of the appellants to maintain greater contact with the claim area after leaving De Rose Hill Station.  While his Honour considered that there was some difficulty in reconciling Peter De Rose’s evidence that he was frightened of Doug Fuller with Peter’s acknowledgement that he had gone back to visit Doug Fuller, his Honour did not reject Peter’s evidence on this point.  He limited himself to the (somewhat surprising) finding that Peter De Rose and the other Aboriginal people had no reason to be afraid to enter De Rose Hill Station to carry on traditional activities because of the conduct of the Fullers.

76                              We made this observation (at [324]):

‘his Honour did not explain how this finding could be reconciled with the findings about Doug Fuller’s attitudes and behaviour and we have considerable difficulty seeing how it can be reconciled.  Even if the finding stands, it does not negate the appellant’s perceptions that they faced the prospect of a hostile response, perhaps even a violent one, if they returned to De Rose Hill Station without the Fullers’ permission.’

The latter comment reflected his Honour’s finding (at [448]) that the Aboriginal people and Doug Fuller:

‘got on well initially but that, unfortunately, their relationship became strained and the [appellants] developed an apprehension that the Fullers had an attitude of hostility towards them.’ (Emphasis added.)

Indeed, his Honour preferred the evidence of Aboriginal witnesses over that of Doug Fuller concerning the shooting of their dogs by him in what the witnesses saw as an act of intimidation.  His Honour appears (at [451]) to have accepted the evidence of some Aboriginal witnesses that it was this conduct that made them fearful and caused them to leave De Rose Hill Station.

additional matters showing acknowledgement and observance

77                              In their submissions at the further hearing, the appellants drew attention to other matters that supported their submission that the appellants in general, and Peter De Rose in particular, had acknowledged and observed the traditional laws and customs of the Western Desert Bloc that recognise the Nguraritja as possessing rights and interests in respect of the claim area. 

78                              First, Peter De Rose gave detailed evidence, accepted by his Honour, that he had passed through the various ceremonial stages of life under Western Desert law and custom.  The stages included tjitji (a young child permitted to be in the company of women); tjiranka (a child in early teenage years); kungkatja (the stage preceding seclusion to be undergone prior to becoming a nyiinka (‘bush boy’)); participation in the ceremony which made Peter De Rose nyiinka, the full details of which he would not divulge in the presence of women; the tjilkata cycle of ceremonies by which Peter De Rose became a wati (an initiated man) in his late teens; and ceremonies by which he finished being a wati pukuti (apparently a junior wati) and became a wati katarara (a transitional stage leading to complete manhood).  The next stages were wati pulka (more senior initiated man) and tjilpi (an old revered man who passes on the sacred stories he has learned in his lifetime).  It appears that Peter De Rose had gone through the ceremonies, described in detail by Dr Willis (himself an initiated man) in restricted evidence, to become a wati pulka.

79                              The primary Judge did not make explicit findings about the stages that had been gone through by each of the male appellants.  However, Dr Willis gave evidence that all but one of the Yankunytjatjara and Pitjantjatjara men he knew had been through the ceremonies necessary to become a wati pulka.  This was certainly true, for example, of Owen Kunmanara, a man of about 90 when he gave evidence; Peter Tjutatja, also about 90 when he gave evidence; Johnny Wimitja De Rose, a man in his late 60s at the time of the trial; and Michael Mitakiki, who was born in 1944.  It should also be noted that Peter Tjutjata gave uncontradicted evidence that his two sons were wati pulka and wati katarara, respectively (at [276]).

80                              Secondly, the primary Judge took evidence in closed session at two sites (Wantjapila and Intalka) to the south of De Rose Hill Station.  His Honour recorded (at [385]) that one of the witnesses gave evidence of the significance of each area and pointed out that, even today, death might follow if a woman were to learn the sacred men’s inma (songs).  As we have noted, in evidence given in open court, witnesses had discussed their belief in and acceptance of the Malu (kangaroo), Kanyala (euro) and Tjurki (owl) Tjukurpa.  Particular sites were identified as points through which the Malu, Kanyula and Tjurki travelled and natural features were identified as representing each of them.  The witnesses acknowledged that the ability of an individual to discuss a particular Tjukurpa was subject to territorial constraints (at [386]).  Thus one witness could talk about the Tjukurpa story up to a particular point or site, but no further; another witness would take up the story from there.

81                              The primary Judge accepted evidence from Peter De Rose and Owen Kunmanara that they considered Ilpalka, a site near the northern boundary of the Station, to be an important place on the Kalaya (emu) Tjukurpa track (at [393]).  His Honour also accepted evidence that another important site for the Kalaya Tjukurpa was at Kantja, on a section of the bed of Agnes Creek (at [411]-[416]).  The activities at Kantja included the inma Kalaya, which required many men to dance.  Peter Tjutatja, Owen Kunmanara and Peter De Rose had learned of the Tjukurpa for this area (Owen Kunmanara being one of the old men who had taught Peter De Rose).  Similar evidence was given about a cluster of sites known as Apu Maru (at [417] ff).

82                              The appellants submitted that in these circumstances it was not surprising that the primary Judge had found (at [380]) that significant aspects of certain rituals and ceremonies had been revealed by this evidence and that the participants in the stories, dances and songs:

‘once had a religious or spiritual connection with the site at which the particular activity was performed.’

His Honour also found that the participants had knowledge of the sites and the activities appropriate at those sites (at [381]) and knew the ceremonies, stories, dances and songs associated with one or more of the Tjukurpa (at [382]).

83                              The Fullers contended that the primary Judge’s findings went no further than concluding that some of the appellants had knowledge of the stories, songs, dances and ceremonies. They argued that the findings fell short of demonstrating acknowledgement and observance of traditional laws and customs.  In our view, this is not a fair interpretation of the findings.  It is true that his Honour found that most of the appellants had visited the claim area only sporadically, if at all, after they had left the Station and that their connection to the land had ceased by the time of the trial.  But the findings and the evidence point strongly to a number of the appellants, including Peter De Rose and Peter Tjutatja genuinely believing in the Tjukurpa and in the sacredness of particular sites.

84                              Thirdly, the evidence showed that the appellants acknowledged and observed Western Desert Bloc restrictions on the dissemination of secret male knowledge, such as inma,to women and children.  They also observed the prohibitions on women and children visiting certain men’s sites (and vice versa).  Peter De Rose, for example, gave detailed evidence at Apu Maru as to the stories and songs that were restricted to men and also declined to give evidence about certain matters in the presence of women (at [273]).  Dr Willis, whose evidence was accepted by the primary Judge, explained at some length the knowledge restrictions applied by Yankunytjatjara people to places associated with the Tjukurpa.  Dr Willis pointed out that certain ceremonies incorporated threats if secrecy rules were violated.  He also outlined the consequences under the traditional law of the Western Desert Bloc (as currently understood) if a man were to divulge gender-restricted information to a woman.  Dr Willis noted that he had personally seen sanctions applied for such conduct. 

85                              Mabel Pearson, an indigenous witness in her late 60s, gave evidence that as a woman she was aware of places to which she could and could not go.  She said that:

‘if you go to places you are told not to go to you get killed for that.’

His Honour found that Mabel Pearson did not regard herself as Nguraritja for the claim area (at [196], [727]).  Nonetheless, her evidence reinforced the point that gender restrictions are an important part of the traditional laws and customs of the Western Desert Bloc and that they continue to be carefully observed under threat of serious sanctions if they are contravened.  Peter De Rose gave evidence, apparently accepted by the primary Judge (at [66]), that if he talked openly about certain matters in the presence of women he, too, could get into trouble and might be killed.  Whiskey Tjukanka and Alec Baker also gave evidence about the consequences of contravening ‘strong law’.

86                              Fourthly, evidence was given by female Aboriginal witnesses of the practice of ‘smoking’ a new-born baby.  They expressed the belief that enveloping the mother and the baby with smoke from a green wood tree will make the baby strong and will be good for the mother’s milk (at [574]).  Peter De Rose gave evidence that he had been smoked to the north of the ironwood tree where he had been born on the claim area.  This was obviously an important element in his claim to be Nguraritja for the country.  Other witnesses, such as Witjawara Curtis and Mabel Pearson, gave evidence that their own children had gone through the smoking ceremony.  It is true, as the Fullers pointed out, that these witnesses were older and there appears to have been little evidence that smoking has recently been practised (no doubt in part because children tend now to be born in towns where adequate medical facilities are available).  But the evidence suggests that the belief in the efficacy of the smoking ceremony has not died.

87                              Fifthly, the concept of Nguraritja itself was recognised by the indigenous witnesses as central to the rights and responsibilities of people under the laws and customs of the Western Desert Bloc.  The primary Judge’s analysis of the concept was based to a significant extent on the evidence of Peter De Rose himself ([75]-[80]).  It is true that his Honour was critical of Peter De Rose’s evidence on related issues and rejected some of his claims.  Nonetheless, there can be no doubt that Peter De Rose understood and accepted the concept, regarded himself as Nguraritja for the claim area and accepted that, as such, he had certain rights and responsibilities in relation to the land.

88                              The primary Judge found (at [99]) that:

‘the overwhelming thrust of the [appellants’] evidence was that it was the Nguraritja who were the traditional owners; they had the rights and responsibilities in relation to that land.’ (Emphasis added.)

His Honour also found (at [104]) that cleaning of secret sacred sites was one of the major duties of Nguraritja with respect to their land.  His Honour relied on the evidence of indigenous witnesses to support findings (at [562]) as to:

‘[the] methods by which a person may be both Nguraritja for the land and have a connection to the land through traditional laws and customs.’

89                              It is also true that his Honour found that the appellants, including Peter De Rose, had not discharged their responsibilities as Nguraritja in relation to the claim area for a number of years.  But it is one thing to find that a person had not lived up to his or her religious or ethnical responsibilities.  It is another to find that the person does not regard himself or herself as bound by the rules imposing and defining those responsibilities.  There are very many people in the Australian community who do not live up to what they genuinely consider and acknowledge to be their responsibilities.  Their ‘default’ may continue for a long time, yet they may continue to acknowledge and accept the binding force of the rules imposing the unfulfilled responsibilities.  Other people within their own communities may also see them as liable to discharge certain responsibilities and perhaps as subject to communal ‘sanctions’ if they do not do so.

90                              In our view, his Honour’s findings must be understood as accepting that Peter De Rose and a number of the other appellants acknowledged and regarded themselves as bound at all times by the rules for determining Nguraritja for particular country.  On his Honour’s findings, the appellants observed what can be described as the Nguraritja recognition rules.  These rules were founded in the traditional laws and customs of the Western Desert Bloc, a society that (as his Honour found) has existed since sovereignty: cf Yorta Yorta, at [54].  The appellants observed the rules notwithstanding some differences in their understanding of their precise content, by acknowledging and recognising particular individuals as Nguraritja for the claim area and by acknowledging and recognising that each such person had particular rights and responsibilities in relation to the land.  The fact that Peter De Rose and the other Nguraritja were, for a time (even a long time) less than diligent in discharging their responsibilities does not detract from these conclusions.

91                              Sixthly, there was evidence that the appellants observed rules relating to kinship and social organisation of the Western Desert, including the avoidance relationship that exists between a man and his waputju (father-in-law).  For example, an avoidance relationship prevented Yami Lester acting as an interpreter for Johnny Wimitja De Rose.  Peter De Rose gave restricted evidence of the nature of the avoidance relationship that exists between a man his waputju.  There was also evidence of marriage arrangements involving a ‘promised wife’.  It may be true that observance of those rules is not, of itself, proof that the persons concerned acknowledge and observe the traditional laws and customs connected with the possession of rights and interests in relation to land. However, such rules form part of the network of relationships that are sourced in the traditional laws and customs of the Western Desert Bloc.  The observance of such rules lends support to the contention that the traditional laws and customs more directly linked with the possession of rights and interests in land were also observed.

92                              Seventhly, there was evidence that the appellants recognised and adhered to the authority of senior men.  The primary Judge found (at [275]) that the tjilpi pass on to the younger wati the sacred stories that they have learned in their lifetime.  His Honour also said that it ‘was apparent that the tjilpi are accorded very considerable respect and [are] treated as having much authority’.  As an illustration, Peter De Rose gave evidence that he could not recount a particular story, that might concern a specific site or track, without permission from the senior men.  The Fullers in their written submissions acknowledged that this proposition was ‘probably made out’.

93                              Eighthly, the evidence clearly established that a number of the appellants had been taught traditional laws and customs by those who, under those laws and customs, were responsible for imparting that knowledge.  His Honour made findings to that effect, for example, in relation to Peter De Rose (at [275]) and Whiskey Tjukanku (at [420]).  The appellants contended that the evidence showed that they had continued to acknowledge and observe the importance of teaching traditional laws and customs to less senior people who, under those laws and customs, are entitled to receive the information.

94                              The Fullers maintained that the evidence fell short of demonstrating current observance of the requirements of traditional laws and customs.  They pointed to the primary Judge’s finding (at [78]) that Peter De Rose did not identify any occasion on which he passed on his knowledge to young people.  However, his Honour also recorded (at [873]), without any apparent reservations as to its accuracy, Bernard Singer’s evidence that Whiskey Tjukanka, Riley Tjayrany and Peter De Rose were his ‘uncles’ who had taught him about his family’s country near the Station.  Elsewhere his Honour found that Bernard Singer, then 35 years of age, was being taught the Tjukurpa by the tjilpis.

95                              Moreover, Peter De Rose gave evidence that his grandchildren were Nguraritja for his country and that he intended to teach them the Tjukurpa.  While Peter De Rose may not have fully discharged his obligations under traditional laws and customs, his evidence suggested that he acknowledged those obligations and intended in the future to comply with them.  There was no finding by his Honour that this evidence should be rejected.

96                              Ninthly, the primary Judge found (at [903]) that the Aboriginal witnesses had not ‘lost their culture – far from it’.  He gave as an obvious example their respect for the memory of a recently deceased person and the use of the word ‘kunmanara’ to refer to another person of the same name.  A second illustration was the preparation and consumption of ‘bush tucker’ in traditional ways.  The laws and customs concerning the preparation and consumption of bush tucker are closely connected with the laws and customs governing who may hunt on and collect food from particular country.

MATTERS RELIED ON BY THE FULLERS

97                              The Fullers pointed to a number of findings made by the primary Judge, some of which have already been mentioned, in support of their submission that the appellants had not discharged the burden of demonstrating that they had acknowledged and observed the traditional laws and customs of the Western Desert Bloc.  The Fullers accepted that the evidence established that the appellants had knowledge of traditional laws and customs and that they had ‘subjectively asserted’ spiritual beliefs.  But the evidence fell short, so they argued, of showing that the appellants (or any of them) continued to acknowledge and observe traditional laws and customs.

98                              To some extent, the Fullers’ argument was caught up with their support for a narrow construction of s 223(1)(a) of the NTA, a construction which we do not consider is correct.  They maintained, however, that even if s 223(1)(a) is to be construed less restrictively (as we have concluded it should), the appellants had not discharged the burden upon them.  The main findings relied on by the Fullers were as follows.

99                              First, the primary Judge found that the appellants had not maintained a physical connection with the land after their departure from the Station, a period of at least twenty years.  His Honour also found that the appellants had not been forcibly dispossessed from their land (at [291], [892]) and that the presence of locked gates had not posed a practical or legal bar to those Aboriginal people who wished to follow their traditional pursuits (at [491]).

100                           However, as his Honour recognised, an ongoing physical connection with the land is not essential either to the ‘connection’ by the traditional laws and customs required by s 223(1)(b) of the NTA or to the acknowledgement and observance of those traditional laws and customs required by s 223(1)(a).  The evidence to which we have referred showed that at least some of the appellants continued to acknowledge the traditional laws and customs of the Western Desert Bloc relating to rights and interests in land, especially the rules governing the identification, and the rights and responsibilities, of the Nguraritja for the claim area.  As we have noted, contrary to the Fullers’ submissions, the evidence went substantially beyond a mere demonstration that the appellants had knowledge of their traditional laws and customs and provided powerful support for the view that they acknowledged and observed those laws and customs.

101                           It can hardly be disputed that virtually all the appellants genuinely believed the stories of the Tjukurpa and acknowledged the sacredness of particular sites in the claim area.  Their failure to maintain constant or regular physical connection with the claim area (bearing in mind that there was some use of the land, for example, for hunting) was due, at least in part, to the appellants’ fear of the likely response from the Fullers.  They had a subjective perception that the Fullers might object strongly and that Doug Fuller might be prepared to threaten force.  While there were some apparent inconsistencies in the evidence, we cannot accept the primary Judge’s conclusion that the Aboriginal people had no reason to be afraid if they attempted to return to the claim area.  The validity of that conclusion depends on an assessment of the primary facts.  In our view, on the findings made by his Honour, the conduct of Doug Fuller, in particular, provided a solid enough objective basis for the appellants’ apprehension.

102                           Secondly, the Fullers emphasised the finding (at [907]) that the appellants had not visited or tended to sacred or secret sites on parts of their country outside the claim area during the period they claimed to be deprived of access to the Station.  There is no doubt that this finding is significant and must be given due weight in determining whether the appellants have established that they acknowledged and observed the traditional laws and customs of the Western Desert Bloc.  But in making this determination it is necessary to consider all the findings made by his Honour and any evidence that is not inconsistent with his Honour’s findings.  The failure of the appellants to visit sites outside the claim area is only one factor to take into account in making the evaluative judgment required by s 223(1)(a) of the NTA.

103                           As we have explained, a number of the findings of primary fact and a good deal of the appellants’ evidence not rejected by his Honour supported their contention that they continued to acknowledge and observe important aspects of their traditional laws and customs.  Moreover, the primary Judge appeared to pay little regard to the actions of the appellants after 1994 (when the proceedings were commenced) in attempting to assert their rights and to discharge their responsibilities in relation to the claim area. In the absence of any finding that those actions were contrived or otherwise not genuine, there is no reason why they should not be taken into account.  Indeed, the evidence of the appellants’ actions after 1994 (assuming their actions genuinely reflected their beliefs) is of particular significance because the question posed by s 223(1)(a) of the NTA is cast in the present tense.  The provision is concerned with present possession of rights and interests (Yorta Yorta, at [85]) and present acknowledgement and observance of traditional laws and customs, although historical continuity is not irrelevant.  In our view, the failure to visit sacred or secret sites for a period of time, even a lengthy period, is not sufficient to counteract the affirmative evidence of acknowledgement and observance of traditional laws and customs.

104                           Thirdly, the Fullers relied on the primary Judge’s finding (at [904]) that the evidence did not ‘establish, as a matter of probability, that a particular individual still maintained a spiritual connection to the claim area’.  This finding, too, reflects an evaluative judgment by the primary Judge of the evidence as to the practices, beliefs and conduct of the Aboriginal witnesses.  It does not turn on his Honour’s assessment of the credit or demeanour of any of the witnesses (except to the extent that they were taken into account in making findings of primary fact).  It should also be noted that the finding was made in the context of his Honour’s analysis of whether the appellants could satisfy the ‘connection’ test in s 223(1)(b) of the NTA, rather than the ‘acknowledgement and observance’ test in s 223(1)(a).

105                           In our opinion, the finding cannot stand, largely for the reasons already given.  His Honour found that the participants in ritual ceremonies, dances and songs he had seen and heard ‘once had a religious or spiritual connection with the [sites concerned]’ (at [380]).  The conclusion that no individual still maintained a spiritual connection to the claim area therefore rested largely on the lack of continued physical connection with the land after Peter De Rose left the Station in 1978.  But the evidence of a number of the appellants showed the strength of their continued spiritual attachment to particular sites and tracks on the land.  His Honour made no finding that the beliefs expressed by the appellants (including the importance of site-specific ceremonies, songs and dances) were not genuinely held.  Indeed, any such finding would have been very difficult to reconcile with the evidence.

106                           In addition, we have already referred, for example, to Peter De Rose’s knowledge of the concept of Nguraritja and of his own Tjukurpa.  His Honour accepted that Peter De Rose was Nguraritja for a track on the claim area and that he had responsibilities for the site under traditional laws and customs.  Peter De Rose’s choice of a homeland at Railway Bore because he wanted to be close to his country provides powerful evidence of his spiritual connection with that country.  As we said in De Rose (FC), his Honour’s finding that the appellants had been scattered to the four winds could not be fairly applied to Peter De Rose.

107                           Fourthly, the Fullers pointed to a number of general findings recorded by the primary Judge.  His Honour referred ([911]) to a ‘breakdown in the acknowledgement of the traditional laws and in the observance of the traditional customs’.  He said ([901]) that there were ‘substantial gaps in the evidence about communal and social life and religious, social and ritualistic activities’.  But these general findings were influenced by his Honour’s view (held to be erroneous in De Rose (FC)) that the absence of communal or group acknowledgement of traditional laws and customs told heavily against the appellants.  The findings are also difficult to reconcile with his Honour’s view ([561]) that the appellants ‘may … satisfy the requirements of par 223(1)(a) of the Act’.  In any event, the Court is bound to reassess the evidence having regard to the errors identified in De Rose (FC) in the approach of the primary Judge.  The cogency of the general findings relied on by the Fullers depends on an assessment of the evidence as a whole.

section 223(1)(a) is satisfied

108                           The case has been fought on the basis that the appellants are entitled to succeed if any one of them has been shown to satisfy the requirements of s 223(1) of the NTA.  In our view, having regard to the totality of the primary findings of fact and the evidence as a whole, the appropriate conclusion is that Peter De Rose possesses rights and interests in relation to the claim area under the traditional laws of the Western Desert Bloc acknowledged and the traditional customs of the Western Desert Bloc observed by him.  Thus the appellants have satisfied the requirements of s 223(1)(a).

connection

109                           Little time was devoted at the further hearing to the second question identified by the Fullers, namely whether the evidence supports a finding that the appellants, or at least one of them, by the traditional laws and customs of the Western Desert Bloc, have a connection with the claim area sufficient to satisfy s 223(1)(b) of the NTA.  The reason why the issue received little attention would seem to be that the Fullers recognised that if the appellants could satisfy s 223(1)(a) of the NTA, it was likely that they would be able to satisfy s 223(1)(b).

110                           The key to the construction of s 223(1)(b) of the NTA is the following statement in the joint judgment in Ward (HC), at [64]:

‘In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters.  Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a “connection” with the land or waters.  That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters in question.  No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned.  But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection.  Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by “connection” by those laws and customs.’

111                           The starting point in considering whether the appellants have satisfied the requirements of s 223(1)(b) is the finding, which in our view should be made, that Peter De Rose (and probably others) has acknowledged and observed the traditional laws and customs of the Western Desert Bloc by which a person becomes Nguraritja for country.  Under those laws and customs, Peter De Rose is (as the primary Judge found) Nguraritja for the claim area.  As such he has defined rights and responsibilities for his country.

112                           The rights and responsibilities of persons who are Nguraritja, as found by the primary Judge, include:

• the right to live on their country, to collect food, water and other resources, to hunt and to travel where they want to go (so long as they do not offend the Tjukurpa)([75]);
• the right to erect shelters on the land, to gather shrubs and bushes for medicinal purposes, to use timber to make, for example, miru (a spear-thrower) and wana (a digging stick used by women to dig for tjala (honey ant) and goannas) ([76]);
• the right to instruct any Anangu visitor to the land as to where he or she can go (including specifying avoidance places) and where (if at all) water and food may be obtained ([75]);
• the right to impose sanctions on a visitor who violates the rules, for example by hunting on the Nguraritja’s country without permission (at [75]);
• the obligation to teach young people about country including the special places, water points, bush tucker, and the correct traditional ways of preparing food ([78]);
• the obligation to clean secret and sacred sites on the land ([104]); and
• the obligation to learn the Tjukurpa for country and to perform the appropriate inma and other ceremonies ([53], [382], [386], [416]).

113                           In view of these findings as to the content of the traditional laws and customs of the Western Desert Bloc, the effect of those laws and customs is, in our opinion, plainly to constitute a ‘connection’ between Peter De Rose (and any others who are Nguraritja for the claim area) and the claim area.  The traditional laws and customs confer rights and responsibilities on Peter De Rose over the claim area.  They establish that he is inextricably linked to his country in a variety of ways.  The ‘connection’ required to satisfy s 223(1)(b) of the NTA is present.

EXTINGUISHMENT

114                           The parties’ submissions at the current hearing on the question of extinguishment were refined as the argument proceeded.  As the summary of the submissions ([127]-[138] below) indicates, more attention was paid to the provisions of the NTA and the Native Title (South Australia) Act 1994 (SA) (‘NTA (SA)’)as the submissions were developed.

The Legislation

115                           In De Rose (FC), at [348]-[360], [371]-[375] we explained the operation of the key provisions of the NTA and the NTA (SA),including Div 2B of Part 2 of the NTA and the counterpart to Div 2B in the NTA (SA).  Wedo not repeat that analysis here.

116                           However, for convenience we reproduce s 36I of the NTA (SA),which addresses the effect of a ‘previous non-exclusive possession act’ attributable to South Australia and corresponds to s 23G(1) of the NTA.  (It was common ground that the grants of the pastoral leases over De Rose Hill Station were ‘previous non-exclusive possession act[s]’ for the purposes of s 23F(2) of the NTA and thus for the purposes of the NTA (SA): see De Rose (FC) at [376]; cf Ward (HC) at [183]-[188].)  Section 36I of the NTA (SA) provides as follows:

‘(1)    Subject to subsection (2), if a previous non-exclusive possession act is attributable to the State –

(a)               to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them; and

(b)               to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned –

(i)     if, apart from this Act, the act extinguishes the native title rights and interests – the native title rights and interests are extinguished; and

(ii) in any other case – the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re-made, re-granted or extended, is in force; and

(c)               any extinguishment under this subsection is taken to have happened when the act was done.

(2)       This section does not apply to a previous non-exclusive possession act that is a category A past act consisting of the grant of a pastoral lease or an agricultural lease.’

117                           Section 36I(2) of the NTA (SA) does not prevent s 36I applying to the grants of the pastoral leases in the present case, since none of the leases was a ‘past act’ as defined in s 228 of the NTA.  Each lease was entered into prior to the commencement of the Racial Discrimination Act 1975 (Cth) (‘RD Act’) and thus was valid when made: De Rose (FC), at [363], [378].  Only an act which, apart from the NTA, was invalid because of the existence of native title can be a ‘past act’: NTA, s 228(2)(b).

118                           The submissions referred to ss 24AA and 44H of the NTA, which are in Div 3 and Div 4, respectively, of Part 2.  These provisions are as follows:

‘24AA   (1)       This Division deals mainly with future acts, which are defined in section 233.  Acts that do not affect native title are not future acts; therefore this Division does not deal with them (see section 227 for the meaning of acts that affect native title).

           (2)         Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.

            …

(7)                To avoid doubt, section 44H provides that a valid lease, licence, permit or authority, and any activity done under it, prevail over any native title rights and interests and their exercise.

44H     To avoid doubt, if:

(a)               the grant, issue or creation of a lease, licence, permit or authority is valid (including because of any provision of this Act); and

(b)               the lease, licence, permit or authority requires or permits the doing of any activity (whether or not subject to any conditions); and

(ba)      an activity is done in accordance with the lease, licence, permit or authority and any such conditions;

then:

(c)               the requirement or permission, and the doing of the activity, prevail over any native title rights and interests and any exercise of those rights and interests, but do not extinguish them; and

(d)               the existence and exercise of the native title rights and interest do not prevent the doing of the activity; and

(e)               native title holders are not entitled to compensation under this Act for the doing of the activity.’

Section 233(1) relevantly defines a ‘future act’ in relation to land or waters as consisting of an act that takes place on or after 1 January 1994, is not a past act and validly affects native title to some extent or is invalid but would, if valid, affect native title.

119                           Since there was a dispute as to whether s 44H of the NTA has retrospective effect, reference should also be made to the provisions bearing on that question.  Section 250 of the NTA provides as follows:

‘The use of the present tense in any provision of this Act does not imply that the provision does not apply to things happening before the commencement of the provision.’

Table A to the reprinted NTA contains saving and transitional provisions included in Sch 5 to the NTAA 1998.  Item 17 of Sch 5 provides as follows:

‘(1)      Section 24GC of the new Act applies to activities done at any time, whether before or after the commencement of that section.

(2)       Section 44H of the new Act applies to the grant, issue or creation of a lease, licence, permit or authority at any time, whether before or after the commencement of that section.’

the primary judge’s analysis

120                           The State submitted at the trial that the various pastoral leases over De Rose Hill Station (see De Rose (FC), at [14]-[21]) had validly and fully extinguished native title rights and interests under the general law.  The State argued that as the leases had been granted prior to the RD Act coming into force, there was no question of the leases being invalid.  Accordingly, they were effective to extinguish all native title rights and interests.

121                           The primary Judge rejected this argument ‘summarily’.  He held (at [513]-[515]) that:

(i)                  it was the NTA, not the common law that governed extinguishment of native title;

(ii)        the reservations in the pastoral leases in favour of Aboriginal people (recorded in De Rose (FC), at [14]) acknowledged native title rights and interests; and

(iii)       it followed from the decision in Ward (HC) that leases containing such reservations had not fully extinguished native title rights and interests.

122                           The primary Judge proceeded to examine the judgments of the High Court in The Wik Peoples v Queensland (1996) 187 CLR 1 (‘Wik’), Ward (HC) and Wilson v Anderson (2002) 213 CLR 401 (‘Wilson v Anderson’).  His Honour concluded that the effect of these authorities was that the grants of the respective pastoral leases were inconsistent with the continued existence of certain native title rights and interests, notably ‘rights to control access to, and make decisions about, the claim area’.  His Honour considered (at [541]) that such rights were inconsistent with the Fullers’ rights to use the land for pastoral purposes.  Thus native title holders could not exercise any control over any person present on the land at the lessees’ invitation.  If the lessees refused permission to an Aboriginal person invited on to the land by the native title holders, the lessees’ decision would prevail.

123                           The primary Judge then addressed the question of ‘operational inconsistency’.  His Honour understood this term to cover conditions in pastoral leases which, of themselves, did not extinguish native title but authorised improvements that, when constructed, would have that effect (at [542]).  He expressed the view (at [555]) that he was bound by the proposition that:

‘the construction of improvements, in satisfaction of the conditions that are contained in a pastoral lease, may partially or fully extinguish native title over the lease or, at least, portions of the land that are within the lease.  It is a matter to be decided on the facts.'

124                           Applying this principle, the primary Judge concluded (at [558]) that:

• improvements in the form of the homestead, the airstrip, sheds and outbuildings were in the exclusive possession of the Fullers;
• the Fullers should have a ‘buffer zone’ around each improvement, corresponding to the buffer zones specified in s 47(2) of the PLMC Act; and
• improvements in the nature of fences and roads did not even partially extinguish native title, since they were ‘capable of joint use’.

125                           His Honour expressed the view that the reasoning in Ward (HC) did not mean that all native title rights of access and control had been extinguished.  He said (at [553]) that the observations of the High Court were intended:

‘to constitute a statement of the position between the native title claimants on the one hand and the pastoralist on the other.  I do not see that it necessarily takes away the residual rights of control of access and use as between the holders of native title themselves and any other Aboriginal people who seek access to or use of the claim area in accordance with the traditional laws and customs.’

Accordingly, his Honour included in the draft determination (which was intended to apply if his decision was reversed on appeal) provisions recognising the rights of native title holders to make decisions about the use and enjoyment of the claim area by Aboriginal people governed by the same traditional laws and customs as the native title holders.

126                           It is to be noted that the primary Judge reached these conclusions without referring in any detail to Div 2B of Part 2 of the NTA or the mirror legislation contained in the NTA (SA).  It will be recalled that the High Court has said, both in Ward (HC), at [1]-[2], [8]-[10], and in Wilson v Anderson, at [46]-[47], that the extent of extinguishment effected by a pastoral lease entered into prior to the RD Act coming into force must be determined by reference to Div 2B of the NTA and corresponding State and Territory legislation.

submissions

127                           The appellants identified the remaining issues on extinguishment as follows:

(1)                        whether native title has been extinguished in respect of the location of fences, roads and other structures and, if so, which; and

(2)            whether the native title holders retain the right to control access and use by other Aboriginal people.

128                           In their written submissions on the first issue, the appellants pointed out that Ward (HC), at [78], had adopted an ‘inconsistency of incidents’ test, which required an ‘objective inquiry’ involving a comparison between two sets of rights.  The appellants contended that the possibility of conflicting activities does not establish inconsistency between rights and that the construction of improvements had not extinguished native title.  Their written submissions in chief cited ss 23G, 44H and 238 of the NTA, but did not explain their operation.

129                           As to the second issue, the appellants supported the approach taken by the primary Judge.  They submitted that this approach had received the endorsement of a Full Court of this Court in Ward (FC) (No 2), on remittal from the High Court following its decision in Ward (HC).

130                           In the State’s written submissions in chief, it was argued that par 9 of the determination proposed by the primary Judge (see De Rose (FC), at [154]) was flawed.  The Solicitor-General for South Australia submitted that the effect of par 9 was to suspend native title rights and interests while the rights of the pastoral lessee subsisted.  He contended that the reasoning in Ward (HC) had rejected the possibility of native title rights being suspended, in the absence of a statute specifically providing for their suspension.  Accordingly, he proposed a new paragraph (reproduced in App A to this judgment, par 6) which makes it clear that native title rights and interests are extinguished insofar as they relate to those parts of the claim area upon which improvements have been constructed.

131                           The Solicitor-General pointed out that any discussion of extinguishment post-Ward must take into account the High Court’s holding that primary regard must be paid to the provisions of Div 2B of Part 2 of the NTA and to the corresponding provisions of the NTA (SA).  He analysed the position as follows:

(i)           the valid grant of a non-exclusive pastoral lease before 1996, such as each of the pastoral leases over De Rose Hill Station, is a ‘previous non-exclusive possession act’ as defined in s 23F(2) of the NTA;

(ii)        s 23G(1) of the NTA confirms the partial extinguishment of native title by a previous non-exclusive possession act attributable to the Commonwealth;

(iii)       s 23I of the NTA authorises, inter alia, the law of a State to make provision to the same effect as s 23G of the NTA in respect of all previous non-exclusive possession acts attributable to a State;

(iv)       s 36I of the NTA (SA) makes provision to the same effect as s 23G of the NTA in respect of previous non-exclusive possession acts attributable to the State of South Australia;

(v)        each of the leases over De Rose Hill Station, although not requiring specific improvements to be constructed, contemplated that the lessee would construct a dwelling house, fences, huts and dams and, accordingly, the lessee was intended to have exclusive possession of those parts of the leasehold land on which the improvements were ultimately erected;

(vi)       the effect of s 36I(1)(b)(i) of the NTA (SA) is that the right to erect improvements on De Rose Hill Station, conferred by the various pastoral leases, extinguished any native title rights and interests over the area on which the lessee’s right to erect improvements has been exercised;

(vii)      while it was impossible to determine at the commencement of each lease the precise areas in respect of which native title would be extinguished by reason of improvements not then carried out, once the lessee exercised the right to erect improvements, native title rights and interests over the sites on which the improvements were erected were extinguished;

(viii)      it followed that none of the twelve native title rights and interests identified in par 3 of the draft determination could be exercised over sites on which the homestead, sheds, dams, the airstrip and constructed stock watering points had been erected.

132                           The Solicitor-General contended, for these reasons, that the primary Judge had been correct in holding that the specified improvements had extinguished native title over the relevant sites.  The State preferred, however, that the ‘buffer zones’ be determined by reference to the concept of ‘necessary adjacent land’ used in s 251D of the NTA,rather than by reference to a defined area the dimensions of which were derived from State legislation.

133                           The Fullers adopted the State’s submissions, except that they supported the primary Judge’s view that the buffer zone should comprise a defined area around each improvement (see par 4 of the draft determination reproduced in De Rose (FC), at [154]).

134                           In supplementary submissions, the appellants accepted steps (i) to (iv) of the State’s analysis.  The appellants differed from the State, however, as to the effect of s 44H of the NTA and s 36I of the NTA (SA).  Mr Basten pointed out that s 23G of the NTA (which is in the same terms as s 36I of the NTA (SA) except that it applies to an act attributable to the Commonwealth) envisages that a previous non-exclusive possession act may involve:

(a)                the grant of rights and interests that are not inconsistent with native title (s 23G(1)(a)); or

(b)               the grant of rights and interests that are inconsistent with native title (s 23G(1)(b)).

135                           In the latter case, the effect of the grant of the rights and interests depends on whether ‘apart from this Act’ the previous non-exclusive possession act would extinguish native title.  According to Mr Basten, the purpose of the phrase ‘apart from the Act’ is to preserve the common law position: that is, Parliament intended to confirm that the grant of a non-exclusive pastoral lease extinguishes any native title rights and interests that are inconsistent with the grant if that is the position at common law.  In other words, the purpose of s 23G(1) is to make it clear that a pastoral lease has no greater extinguishing effect than under the general law and that the question of extinguishment at common law is for the courts to determine.

136                           Mr Basten argued, however, that Parliament has taken a different view in relation to an activity permitted or required under a lease validly granted.  Section 44H provides that such an activity does not extinguish native title, but the doing of the activity prevails over native title rights and interests (s 44H(c)).  Mr Basten contended that there is no conflict between s 23G, which provides for the extinguishing effect of a non-exclusive pastoral lease under the general law and s 44H, which makes different provision for activities that might be inconsistent with the untrammelled exercise of native title rights and interests.  He submitted that the opening words of s 44H show that Parliament intended the law to be declaratory.  The effect of a declaratory provision, however, is to state the law, whether or not Parliament’s assumption as to the relevant common law principles is correct.  Mr Basten submitted that s 250 of the NTA and Item 17 in Sch 5 to the NTAA 1998 indicate that s 44H is intended to have retrospective effect.

137                           The result, so Mr Basten contended, is that s 23G of the NTA requires the extinguishing effects of a pastoral lease on native title to be ascertained by reference to the rights granted by the lease itself, where such rights can be identified at the outset as applying to a particular area of land.  Section 44H, however, prevents a native title holder lawfully preventing or interfering with a construction or use of an improvement permitted or required to be constructed by the pastoralist.  But once the improvement is destroyed, abandoned or otherwise removed, the rights of the native title holder revive or can be resumed.

138                           In response to the appellants’ reliance on s 44H of the NTA, the Solicitor-General submitted that ss 23G and 44H ‘operate in different situations’.  Section 23G, so he contended, deals with past acts, while s 44H deals with future activities.  In particular, s 44H deals with activities undertaken pursuant to rights and interests granted by valid acts of the kind referred to in s 23G (such as the grant of a non-exclusive pastoral lease), but which do not of themselves extinguish native title rights and interests.  Section 44H confirms that in those circumstances the permitted activities will prevail over the exercise of any conflicting native title rights and interests.  However, so the Solicitor-General argued, s 44H has no role to play where native title rights and interests have been extinguished.

REASONING

The Pastoral Leases

139                           Argument on this aspect of the appeal concentrated on the effect of three of the pastoral leases granted over De Rose Hill Station.  These were the Agnes Creek pastoral lease granted on 13 August 1953 to Doug Fuller (Crown Lease Pastoral No. 2133); the Paxton Bluff North pastoral lease granted on 7 August 1953 to the Smiths (Crown Lease Pastoral No. 2138A); and the Paxton Bluff South pastoral lease granted on 27 February 1975 to Doug Fuller (Crown Lease Pastoral No. 2190A): see De Rose (FC), at [14]-[21].  All three leases were granted prior to the commencement of the RD Act. 

140                           The grant of each lease was a ‘previous non-exclusive possession act’ within s 23F(2) of the NTA because:

·        it was valid when granted (there being no issue of invalidity by reason of the operation of the RD Act);

·        it was granted prior to 23 December 1996; and

·        the lease was a non-exclusive pastoral lease within s 248B of the NTA.

Since the leases were entered into before the commencement of the RD Act, Div 2 of Part 2 of the NTA and corresponding State legislation are irrelevant in assessing the effect of the leases on native title rights and interests: Ward (HC), at [139].

Section 36I of the NTA (SA)

141                           The effect of the grant of the leases on native title rights and interests over De Rose Hill Station must be determined by reference to s 36I of the NTA (SA), the counterpart to s 23G of the NTA.  This is because the grants of the leases were previous non-exclusive possession acts attributable to South Australia: see NTA, ss 23I, 239.

142                           Section 36I of the NTA (SA) deals with two situations.  First, s 36I(1)(a) addresses the case where the relevant act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land covered by the lease.  To that extent, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests, but do not extinguish them.  Secondly, s 36I(1)(b) addresses the case where the relevant act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease.  To that extent:

·        if, ‘apart from this Act’, the act extinguishes the native title rights and interests, they are extinguished; and

·        in any other case, the native title rights and interests are suspended while the lease remains in force.

143                           Section 23G(1)(b) of the NTA (which corresponds to s 36I(1)(b) of the NTA (SA)) is intended to allow the courts to determine the effect of a grant of rights inconsistent with native title rights and interests and to do so by reference to the position at common law.  The Supplementary Explanatory Memorandum to Government Amendments Moved in July 1998 (‘Supplementary Memorandum’)records the Government’s understanding at the time that native title is partially extinguished by a previous non-exclusive possession act attributable to the Commonwealth.  It also records the existence of an opposing view, namely that the grant of a non-exclusive possession title, such as a pastoral lease of the kind involved in Wik, does not extinguish native title rights and interests that are inconsistent with the grant, but merely suspends them while the non-exclusive possession title is in force.

144                           The Supplementary Memorandum notes that the Government had agreed to leave this issue to be finally determined by the courts in accordance with the common law:

‘Paragraph 23G(1)(b) confirms that the grant of a non-exclusive possession … pastoral lease will extinguish any native title rights and interests that are inconsistent with the grant if that is the position at common law.  If however the position at common law is that a non-exclusive possession … pastoral lease does not extinguish any inconsistent native title rights and interests, but merely suspends them while the lease is in existence, then subparagraph 23G(1)(b)(ii) ensures that the inconsistent native rights and interests are suspended for the duration of the lease …’ (Emphasis in original.)

Ward (HC)

145                           The issue left unresolved by Parliament has now been determined by the High Court.  In Ward (HC), the joint judgment endorsed the following propositions:

(i)                  Native title rights and interests are properly to be seen as a bundle of rights, the separate components of which can be extinguished separately (at [76]-[77]).

(ii)                Where a grant of rights in land is made pursuant to statute, the question (so far as extinguishment is concerned) is whether the rights are inconsistent with native title rights and interests in respect of the land.  This is an objective inquiry which requires identification of and a comparison between two sets of rights, one deriving from traditional laws and customs and the other from ‘the new sovereign authority that came with settlement’ (at [78], [82]).  Reference to the use of land is relevant only to the extent that it focuses attention upon the rights pursuant to which the land is used (at [78]).

(iii)               Rights held under an interest in land less than a fee simple estate, such as a lease, can be inconsistent with the continued existence of native title rights and interests and therefore can extinguish them (at [80]).

(iv)              There is no such thing as degrees of inconsistency of rights:

            ‘Two rights are inconsistent or they are not.  If they are inconsistent, there will be extinguishment to the extent of the inconsistency … Absent particular statutory provisions to the contrary, questions of suspension of one set of rights in favour of another do not arise.’ (At [82].)  (Emphasis added.)

(v)                Section 23G(1)(b)(i) of the NTA contemplates that a previous non-exclusive possession act, such as a pre-RD Act pastoral lease, may grant rights and interests that are inconsistent with native title rights and interests and extinguish the latter (at [192]; see, too, Wilson v Anderson, at [46]).  Where that occurs, no question of suspension of native title arises.

(vi)              Section 23G(1)(b)(ii) of the NTA addresses the case where there is an inconsistent grant of rights which, apart from the NTA and its State counterpart, would not extinguish native title rights and interests.  The example given is a post-1975 grant which, by operation of the RD Act, was ineffective to extinguish native title rights and interests (at [82]).  (This seems to involve reading the expression ‘the grant of rights’ in s 23G(1)(b) as including a purported grant, given that the RD Act would, apart from the NTA, presumably render the grant invalid.)

The Present Case

146                           In order to apply s 36I of the NTA (SA), it is necessary to identify the native title rights and interests and the relevant rights and interests granted by the leases, so that a comparison between them can be made.  In the present case, the first task is not difficult because the rights and interests have been identified in the draft determination.

147                           The second task requires reference to the terms of the three leases, each of which was in substantially the same form.  The leases did not require the lessees to construct specific improvements on the leasehold land.  However, each lease required the lessees to spend a minimum amount on unspecified improvements to the land, including a minimum sum in each of the first five years of the term.  The lessees were at liberty to use dead timber and sand from the land for the purpose of improvements or (in the case of timber) for domestic firewood.  The lessees were also expressly permitted to grow produce on the land ‘solely for consumption on the … land’.  Each lease reserved to the Minister and all persons authorised by him or her the right to undertake a variety of activities on the leasehold land. Two of the leases provided that those activities were not permitted:

‘within one mile of any improvement consisting of a well reservoir dam dwelling house factory or building of the value of One Hundred Pounds or upwards the property of [the lessee].’

148                           It is clear that each lease conferred on the lessees the right and, to some extent, the obligation, to construct improvements on the leasehold land.  Two of the leases expressly envisaged that the improvements could include a dwelling house, dams, reservoirs, factories or other buildings.  The third lease (No 2190A) referred expressly to bores, dams, reservoirs and sheds. It also clearly contemplated that the land could be used for domestic purposes.  Although none of the leases referred to an airstrip, the lessees plainly had the right to construct an airstrip on the leasehold land if that improvement was considered incidental to pastoral activities.

149                           The right to construct, and implicitly to use, improvements on the leasehold land, such as a dwelling house or storage sheds, when exercised, is clearly inconsistent with the native title rights and interests identified in the draft determination, insofar as they relate to the particular land on which the dwelling house and storage sheds are constructed.  For example, it is hard to see how the native title holders’ right to gain access to the land or to hunt anywhere on the land in a traditional manner, could co-exist with the lessees’ rights to construct and reside in the dwelling house or construct and use the storage sheds.

150                           The problem, however, is that until the lessees choose to exercise the right to erect improvements, the precise location of the improvements on the leasehold land cannot be known.  In the present case, for example, the leases themselves gave no clue as to where a dwelling house, storage sheds or dams might be constructed.  It will be recalled that the joint judgment in Ward (HC) emphasised that the critical question, so far as extinguishment is concerned, is whether the two sets of rights are inconsistent.  Their Honours also emphasised that the actual use of land is relevant in so far as it focuses attention upon the right pursuant to which the land is used.  Yet unless attention is paid to the actual use of land, how is the Court to ascertain the precise sites over which native title holders might seek to exercise their traditional rights?

151                           The joint judgment in Ward (HC) appears to recognise this difficulty.  Their Honours referred (at [146]) to the expression ‘operational inconsistency’ which had been used both by Gummow J in Yanner v Eaton (1999) 201 CLR 351, at [110]-[111] and by the majority in Ward (FC), at [439].  In the latter case, Beaumont and von Doussa JJ used the expression in order to explain why the declaration of the Ord Irrigation District had not, of itself, extinguished native title, yet the construction of the irrigation works did have that effect.

152                           The joint judgment in Ward (HC) did not endorse the precise approach taken by the majority in Ward (FC), but accepted (at [149]) that the term ‘operational inconsistency’ might provide some assistance by way of analogy in this field.  However, their Honours warned that the analogy should not be pushed too far.  They said this at ([149]-150]):

‘Generally, it will only be possible to determine the inconsistency said to have arisen between the rights of the native title holders and the third party grantee once the legal content of both sets of rights said to conflict has been established.

Further, the use in this universe of discourse of the term “grant”, derived from old system conveyancing, including the creation and transfer of rights by the Crown in favour of subjects, is apt to mislead.  The operation of a grant of rights may be subjected to conditions precedent or subsequent.  The rights themselves may be incapable of identification in law without the performance of a further act or taking of some further step beyond that otherwise said to constitute the grant.’  (Emphasis added.)

153                           Later in the judgment, their Honours returned to the same issue, in the context of considering whether a mining lease over certain land had extinguished native title rights and interests.  Their Honours pointed out that the grant of a right (in this case to mine) encompasses all those rights which are necessary for the meaningful exercise of that right.  Their Honours continued as follows (at [308]):

‘The holder of a mining lease having a right to exclude for the specified purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity.  Just as the erection by a pastoral lease holder of some shed or other structure on the land may prevent native title holders gathering certain foods in that place, so too the use of land for mining purposes may prevent the exercise of native title rights and interests on some parts (even in some cases, perhaps the whole) of the leased area.’  (Emphasis added.)

It was not necessary for their Honours to develop the point further. 

154                           The bolded words in the last passage suggest that a mining lessee might exercise a right to exclude from land in a way which prevents the exercise of a native title right or interest for a limited period.  This is, perhaps, not altogether easy to reconcile with the insistence in Ward (HC) on the comparison between two sets of rights being the test for inconsistency and therefore for determining whether native title rights and interests have been extinguished.  Nor is it easy to reconcile with the High Court’s rejection, in the case of inconsistency of rights, of the concept of suspension of native title rights and interests, except where mandated by statute.  It may be that their Honours were referring in the quoted passage to situations where the rights in question are not necessarily inconsistent rights.   

155                           Each lease in the present case granted the lessee the right to erect improvements on the leasehold land.  From the outset, this right was potentially inconsistent, to a greater or lesser extent, with native title rights and interests in respect of the land.  For example, when the right to construct a dwelling house on part of the land was exercised, the right was necessarily inconsistent with all native title rights and interests in respect of the land on which the dwelling house was constructed.  However, it was only after the construction of the dwelling house that the precise area of land affected by the lessees’ right to construct a dwelling house could be ascertained. 

156                           In Ward (HC), the joint judgment observed that the operation of a grant may be subject to a condition precedent or a condition subsequent.  In the circumstances of the present case, the ‘operation of a grant of [the right to conduct and use improvements]’ should be regarded, in effect, as subject to a condition precedent.  The grant of the right could become operative in relation to a particular area of the leasehold land only when the right was exercised.  The grant of the right could have an extinguishing effect only when the right was exercised, since it was only then that the precise area or areas of land affected by the right could be identified.

157                           In the present case, the improvements in issue on the extinguishment question were accepted by the parties to be those set out in par 6 of the draft determination (namely any house, shed, building, airstrip, dam or constructed stock watering point).  The appellants did not contend that if their extinguishment contentions failed, any native title rights and interests in respect of the land on which the improvements were constructed would survive.  The result is that native title rights and interests over De Rose Hill Station have been extinguished in relation to the specific areas of land on which the improvements authorised by the leases have been constructed.  The previous non-exclusive possession acts (namely the grants of the leases) gave the lessees rights which, when exercised, were inconsistent with native title rights and interests over De Rose Hill Station.  When the lessees constructed the improvements in accordance with the leases, the precise areas of land affected by the lessees’ rights could be identified.  At that point of time, apart from the operation of the NTA (SA), the grant of the leases operated to extinguish the native title rights and interests in respect of those areas of land.  Accordingly, s 36I(1)(b)(i) of the NTA (SA) confirms the extinguishment of native title rights and interests over those same areas.

158                           It is unnecessary to consider the position where an improvement is dismantled or abandoned.  However, it should be noted that s 237A of the NTA provides that the word ‘extinguished’, in relation to native title, means ‘permanently extinguish the native title’.  The section goes on to say that, in order to avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.

Section 44H of the NTA

159                           Section 44H of the NTA does not alter this conclusion.  In our view, s 44H is not intended to apply where the rights granted under a lease extinguish the very native title rights and interests which are affected by the ‘doing of any activity’ in accordance with the lease.  If s 44H applied in that situation, it would contradict s 23G(1)(b)(i) of the NTA which confirms the extinguishment of native title rights and interests in the same circumstances.  Given the elaborate scheme of Div 2B of Part 2 of the NTA and corresponding State and Territory legislation confirming past extinguishment of native title, it is hardly likely that s 44H was intended to prevail over s 23G(1)(b)(i).

160                           In any event, s 44H is concerned with the non-extinguishment of native title rights and interests by reason of ‘an activity’ done in accordance with a lease or other instrument.  The Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) (‘Explanatory Memorandum’) (pars 6.21-6.28) distinguishes between rights and interests granted and activities performed in accordance with the instrument granting those rights and interests.  The Explanatory Memorandum gives two examples of such activities. One relates to ‘irrigation activities’ conducted pursuant to an irrigation licence (pars 6.26-6.27) and the other to prospecting for minerals on land affected by native title (par 6.28).  The Explanatory Memorandum refers to both of these activities as ‘physical actions’.

161                           The Explanatory Memorandum identifies the concern that s 44H seeks to address as the possible need, following the decision in Wik,  for pastoral lessees ‘to obtain the agreement of native title holders in order to control activities under their lease, such as construct a dam’ (par 6.21).  Section 44H is said to be:

‘intended to ensure that, provided the lease is valid in accordance with the NTA, the lessee is able to carry on activities under the lease notwithstanding native title.’

162                           The Explanatory Memorandum supports a construction of s 44H that restricts its operation to activities carried out in accordance with rights and interests granted under a lease and not to the rights and interests granted by the lease.  In the  present context, that construction would enable the lessee to use the land for any activity that is necessary or incidental to constructing improvements on the land.  The lessee’s right to carry out those activities would thus prevail over, but not extinguish, any conflicting native title rights and interests.  But s 44H would not prevent the right granted under the lease to construct and use the improvement (that is, the house, dam, airstrip or other improvement) from extinguishing native title.  However, in view of the conclusion that s 44H does not apply to the rights in question in the present case, it is unnecessary to form a final view on this question of construction.

163                           Given that conclusion, it is also not necessary to decide whether (as the State submitted) s 44H applies only to an activity done after the commencement of the NTAA 1998, which introduced s 44H into the NTA.  The better view, however, would seem to be that s 44H is not intended to be so limited.

164                           The fact that s 44H of the NTA is expressed in the present tense does not imply that the provision is not to apply to events occurring before the date of its commencement: NTA, s 250.  Item 17(2) of Sch 5 to the NTAA 1998 states that s 44H applies, inter alia, to the grant of a lease at any time, whether before or after the commencement of the section.  It is true, as the Solicitor-General pointed out, that Item 17(2) (unlike Item 17(1) in relation to s 24GC) does not explicitly state that s 44H applies to activities undertaken at any time.  On the other hand Item 17(2) does not seek to override s 250 by stating explicitly that s 44H is not intended to apply to activities undertaken before the commencement of the  NTAA 1998.  If Item 17(2) was intended to distinguish between the grant of a lease (or some other interest) and the doing of an activity required or permitted by the lease, it might have been expected to say so explicitly.  Finally, as s 24GC explicitly applies only to leases granted on or before 23 December 1996 there was no need for Item 17(1) to deal with leases, as opposed to activities, prior to the commencement of the section.

165                           The State’s argument on retrospectivity may have more force if s 44H was located in Div 3 of Part 2 of the NTA, which is headed ‘Future acts etc and native title’.  The section is, however, placed in Div 4 of Part 2, headed ‘Other provisions relating to native title’.  It is so placed notwithstanding the oddity that s 24AA, which purports to give an overview of Div 3, summarises in subsection (7) (albeit not quite accurately) the effect of s 44H.

The ‘Buffer Zone’

166                           Section 36I(1)(b)(i) of the NTA (SA) confirms the extinguishment of native title rights and interests effected by a non-exclusive possession act under the general law.  As was said in Ward (HC), the grant of a right (in this case to erect or construct improvements) carries with it those rights necessary for its meaningful exercise (at [308]).  On this basis, the native title rights and interests are extinguished over the land on which the improvements are constructed and any adjacent land the use of which is reasonably necessary for or incidental to the operation or enjoyment of the improvements. 

167                           It will be noted that this formulation is similar to that adopted by s 251D of the NTA.  However, the reason for employing that formulation is not that it is to be found in the NTA.  Rather, the formulation gives effect to the principle expressed in Ward (HC).  It follows that it is not appropriate to incorporate into the determination a buffer zone ascertained by reference to the dimensions that happened to be specified, for other purposes, in the PLMC Act.

Clause 3(l)

168                           Clause 3(l) of the proposed determination includes as one of the non-exclusive native title rights and interests:

‘the right to make decisions about the use and enjoyment of the determination area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by Nguraritja.’

This formulation follows reasonably closely the form of cl 5(e) of the determination made in Ward (FC) (No 2), at [11].

169                           Although the Fullers identified the form of cl 3(l) as an issue, they limited themselves to suggesting that cl 3(l) might arguably be inconsistent with the rights of access granted to Aboriginal people by s 47 of the PLMC Act. Section 47(1) provides that, subject to certain geographical limitations, an Aboriginal person may enter, travel across or stay on pastoral land ‘for the purpose of following the traditional pursuits of the Aboriginal people.’

170                           In our view, use of the pastoral land to follow traditional pursuits is not inconsistent with cl 3(1), which ensures the use of the land is in accordance with traditional laws and customs.  Also, the limitation on use under s 47(1) of the PLMC Act to following ‘traditional pursuits’ indicates that the provision was not intended to extinguish any native title rights and interests that otherwise might exist.  Accordingly, cl 3(l) of the proposed determination is not inconsistent with the rights of access granted under s 47(1) of the PLMC Act.

conclusion

171                           This Court should make the determination proposed by the State, subject to a minor amendment to par 6. 

172                           Our present view is that the State and the Fullers should pay the appellants’ costs of the appeal.  We propose to make an order to that effect.  If, however, any party wishes to submit that a different cost order should be made, they have liberty to file written submissions on costs within twenty-one days.  In the absence of any such submissions being filed, the costs order will take effect.

Associate:

Dated:              8 June 2005

APPENDIX A

DRAFT DETERMINATION PROPOSED BY THE STATE

THE COURT DETERMINES THAT:

1.             Native title exists in relation to the land and waters covered by Crown Lease Pastoral No. 2133, Crown Lease Pastoral No. 2138A and Crown Lease Pastoral No. 2190A (‘the determination area’).

2.             The persons who hold the group rights comprising native title are the Aboriginal persons who are Nguraritja according to the relevant traditional laws and customs of the Western Desert Bloc people as are applicable to the determination area because for each of them:

(a)      it is his or her country of birth; or

(b)     he or she has a long-term physical association with the determination area; or

(c)      he or she possesses an ancestral connection to the determination area; or

(d)     he or she possesses geographical and religious knowledge of the determination area;

            and such person is recognised as Nguraritja by the other Nguraritja.

3.             The nature and extent of the native title rights and interests in relation to the determination area are the non-exclusive rights to use and enjoy the land and waters of the determination area in accordance with the Nguraritjas’ traditional laws and customs being:

(a)      the right to access and move about the determination area;

(b)     the right to hunt on the determination area;

(c)      the right to gather and use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;

(d)     the right to use the natural water resources on the determination area;

(e)      the right to live, to camp and to erect shelters on the determination area;

(f)       the right to cook on the determination area and to light fires for all purposes other than the clearance of vegetation;

(g)      the right to engage and participate in cultural activities on the determination area including those relating to births and deaths;

(h)      the right to conduct ceremonies and to hold meetings on the determination area;

(i)        the right to teach on the determination area the physical and spiritual attributes of locations and sites within the determination area;

(j)       the right to maintain and protect sites and places of significance to Nguraritja under their traditional laws and customs on the determination area;

(k)     the right to be accompanied on to the determination area by those people who, though not Nguraritja, are:

(i)                 spouses of Nguraritja;

(ii)                people required by traditional law and custom for the performance of ceremonies or cultural activities on the determination area;

(iii)              people who have rights in relation to the determination area according to the traditional laws and customs acknowledged by Nguraritja; or

(iv)              people required by Nguraritja to assist in, observe, or record traditional activities on the determination area; and

(l)        the right to make decisions about the use and enjoyment of the determination area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by Nguraritja.

4.             The rights recognised by paragraphs 3(b), (c) and (d) are traditional rights exercised in order to satisfy personal, domestic, or communal needs, but do not include any commercial use of the determination area.

5.             The native title rights and interests do not confer possession, occupation, use and enjoyment of those lands and waters on the native title holders to the exclusion of others.

6.             Native title rights and interests do not exist in respect of those parts of the determination area being:

(a)  any house, shed or other building or airstrip; or

(b)  any constructed dam or any other constructed stock watering point.

The areas described by 6(a) and (b) include any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements referred to therein.

7.             Native title rights do not exist in minerals as defined in s 6 of the Mining Act 1971 (SA) or petroleum as defined in s 4 of the Petroleum Act 2000 (SA).

8.             Native title rights and interests are subject to and exercisable in accordance with the valid laws of the State and the Commonwealth, including the common law.

9.             The nature and extent of other interests to the determination area are:

(a)      the interests created by Crown Lease Pastoral No. 2133, Crown Lease Pastoral No. 2138A, and Crown Lease Pastoral No. 2190A;

(b)      the interests of the Crown in right of the State of South Australia under the leases that are identified in par (a) hereof;

(c)      the interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown pursuant to the Pastoral Land Management and Conservation Act 1989 (SA) or other statutes or otherwise in the exercise of its executive power;

(d)      the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

10.         Subject to par 6, the relationship between the native title rights and interests in the determination area that are described in paragraph 3 and the other rights and interests that are referred to in paragraph 9 (‘the other rights and interests’) is that:

(a)  the other rights and interests co-exist with the native title rights and interests;

(b)  the existence of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by or under the other rights and interests; and the other rights and interests and the doing of any activity required or permitted to be done by or under the other rights and interests prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

AND THE COURT FURTHER ORDERS THAT:

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

12.         An Aboriginal corporation, the name of which must be provided within 12 months of the date of this order, is to:

(a)  be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth); and

(b)  perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

13.         Liberty to any party to apply on 14 days’ notice to a single judge of the Court as to the identification of the Aboriginal corporation referred to in the preceding paragraph.

APPENDIX B

APPELLANTS’ PROPOSED PARAGRAPH 6 OF DRAFT DETERMINATION

6.         Without prejudice to the generality of paragraph 10:

(a)    no native title rights and interests may be exercised at:

(i)                  any house, shed or other building or airstrip; or

(ii)                any constructed dam or any other constructed stock watering point;

(b)   the native title rights and interests described in paragraph 3(e) may not be exercised:

(i)                  within a radius of one kilometre of any house, shed or other outbuilding on the determination area; or

(ii)                within a radius of 500 metres of a constructed dam or any other constructed stock watering point on the determination area.

Paragraphs 6(a) and 6(b) apply for as long as the determination area remains subject to the Crown Leases referred to in paragraph 9(a) (including as renewed or re-granted) and those improvements remain in use.