FEDERAL COURT OF AUSTRALIA
Griffiths v Northern Territory of Australia  FCAFC 178
NATIVE TITLE – native title rights and interests – exclusivity – criteria for exclusivity – classification of rights as usufructuary or proprietary – potential to cause error in determining content of native title rights and interests – exclusivity finding may be based upon protective function with respect to land and visitors to land – whether negatived by general practice of granting permission to enter – traditional law and custom – continuity of observance and acknowledgment – whether change from patrilineal to cognatic descent negatives continuity – extinguishment – disregard of extinguishment – proclaimed town site – effect of s 47B of Native Title Act 1993 (Cth)
PROPERTY – usufructuary right – nature of – application to native title rights and interests
WORDS AND PHRASES - usufructuary
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Crown Lands Act 1992 (NT) s 108, s 95, s 3
Crown Lands Ordinance 1931-1972 (Cth)
Native Title Act 1993 (Cth) s 47B, s 223, s 225
Commonwealth v Yarmirr (2001) 208 CLR 1 cited
Fox v Percy (2003) 214 CLR 118 cited
Hayes v Northern Territory (1999) 97 FCR 32 cited
Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Mason v Tritton (1993) 6 BPR 13,639 cited
Mason v Tritton (1994) 34 NSWLR 572 cited
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 cited
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 cited
Risk v Northern Territory of Australia  FCA 404 cited
The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 cited
Transurban City Link v Allan (1999) 95 FCR 553 cited
Wik Peoples v State of Queensland (1996) 187 CLR 1 cited
ALAN GRIFFITHS AND WILLIAM GULWIN (ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES) v NORTHERN TERRITORY OF AUSTRALIA
NTD 16 OF 2006
FRENCH, BRANSON & SUNDBERG JJ
22 NOVEMBER 2007
MELBOURNE (HEARD IN DARWIN)
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 16 OF 2006
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
ALAN GRIFFITHS AND WILLIAM GULWIN ( ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES)
NORTHERN TERRITORY OF AUSTRALIA
FRENCH, BRANSON & SUNDBERG JJ
DATE OF ORDER:
22 NOVEMBER 2007
MELBOURNE (HEARD IN DARWIN)
THE COURT ORDERS THAT:
A. The appeal beallowed.
B. The native title determination made by Weinberg J on 28 April 2006 bevaried by omitting  to  and the heading of those paragraphs and substituting the following:
“5. The native title holders are:
(a) the persons referred to in paragraph 4 who are members of the relevant estate group; and
(b) other Aboriginal persons who, in accordance with traditional laws and customs, have rights in respect of the land and waters of the relevant estate group, being:
(i) members of estate groups from neighbouring estates;
(ii) spouses of estate group members; and
(iii) members of other estate groups with ritual authority.
The native title rights and interests (s 225(b) and 225(e))
6. The native title rights and interests in relation to that part of the determination area described in paragraph (a) of Schedule A are rights in accordance with traditional laws and customs to the possession, occupation, use and enjoyment of that part of the determination area to the exclusion of all others.
7. The native title rights and interests in relation to that part of the determination area described in paragraph (b) of Schedule A are the following non-exclusive rights in accordance with traditional laws and customs:
(a) the right to travel over, move about and to have access to the determination area;
(b) the right to hunt, fish and forage on the determination area;
(c) the right to gather and to use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to have access to and use the natural water of the determination area;
(e) the right to live on the land, to camp, to erect shelters and other structures;
(f) the right to:
(i) engage in cultural activities;
(ii) conduct ceremonies;
(iii) hold meetings;
(iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and
(v) participate in cultural practices relating to birth and death, including burial rights.
(g) the right to have access to, maintain and protect sites of significance on the determination area;
(h) the right to share or exchange subsistence and other traditional resources obtained on or from the land or waters (but not for any commercial purposes).
8. The paragraphs designated (d) and (e) in Schedule A of the Determination be redesignated (a) and (b) respectively.
9. The native title rights and interests in relation to that part of the determination area described in paragraph (b) of Schedule A, do not confer rights to the possession, occupation, use and enjoyment of that part of the determination area to the exclusion of all others.
C. Paragraphs 10 to 14 of the determination are renumbered as paragraphs 9 to 13.
D. The cross-appeal bedismissed.
E. The parties bear their own costs of the appeal and cross-appeal.
F. Liberty to the parties to apply within 21 days for any further orders that may be necessary by reason of the preceding orders or otherwise to give effect to the judgment of the Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Introduction  – 
Native title claim group 
The land and waters the subject of the claim 
The native title rights and interests claimed 
Reasons for judgment of the trial judge  – 
Grounds of appeal 
Proposed variations to the determination 
The cross-appeal by the Northern Territory 
The Northern Territory’s first notice of contention 
The Northern Territory’s further notice of contention 
Statutory framework – native title rights and interests  – 
Whether the finding of non-exclusivity
involved an error of principle  – 
Evidence at trial relevant to exclusivity of native
title rights and interests  – 
1. Alan Griffiths  – 
2. Jerry Jones  – 
3. Josie Jones 
4. Mr Lewis 
5. Doris Paddy 
6. Roy Harrington 
7. William Gulwin 
8. Georgie Jones 
9. Deborah Jones 
10. Violet Paliti 
11. Mrs Smiler 
12. Christopher Griffiths 
13. Lorraine Jones 
14. Sammy Darby 
The primary judge’s treatment of evidence relevant to exclusivity  – 
The Northern Territory’s arguments on exclusivity 
The Northern Territory’s argument on exclusivity under its
Further Notice of Contention  – 
The appellants’ response to the further notice of contention  – 
Whether the further notice of contention should be entertained 
Whether the primary judge erred in not finding exclusivity  – 
The cross-appeal – the shift from patrilineal to
cognatic descent principles  – 
The cross-appeal and notice of contention – s 47B of the NT Act  – 
Statutory framework – s 47B of the NT Act 
The proclamation of Timber Creek  – 
The primary judge’s reasoning 
The decision of the Full Court in Alyawarr  – 
The cross-appeal – the previous exclusive possession act
– Crown Lease Term 624  – 
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 16 OF 2006
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
ALAN GRIFFITHS AND WILLIAM GULWIN ( ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES)
NORTHERN TERRITORY OF AUSTRALIA
FRENCH, BRANSON & SUNDBERG JJ
22 NOVEMBER 2007
MELBOURNE (HEARD IN DARWIN)
REASONS FOR JUDGMENT
1 On 10 December 1999 the first of three native title determination applications over land in the township of Timber Creek was filed in the Federal Court. Timber Creek is located on Victoria Highway, about half way between Katherine and Kununurra in the Northern Territory. It lies along the south bank of the Victoria River. The creek from which it takes its name, is a tributary of the river, and flows within the town. The first application was filed by Mr Alan Griffiths on behalf of the Ngaliwurru and Nungali Peoples. It sought a determination of native title rights and interests over a parcel of land in the township known as Lot 47. It was a protective response to a notice issued by the Northern Territory Government of the proposed compulsory acquisition of that land. A second application was filed by Alan Griffiths and William Gulwin on 11 May 2000, responding to notices for the compulsory acquisition of Lots 97-100, 109 and 114 Timber Creek which were dated 2 February 2000. The third application by the same applicants was filed on 18 July 2000. The area covered by that application included a number of other lots in the township, the waterway of Timber Creek including its beds and banks and land covered by a Special Purpose Lease 00494 owned by the Conservation Land Corporation. The land and waters claimed extended to the Victoria River and its beds and banks within the town boundaries. The Victoria River aspect of the claim was later dropped.
2 All three applications proceeded to trial and although they were not consolidated they were heard together pursuant to an order of District Registrar Edwards made on 9 September 2003. Evidence in each application was treated as evidence in the others. The respondents at trial were the Northern Territory and the Amateur Fishermen’s Association of the Northern Territory (AFANT). Although the Commonwealth was initially a respondent it withdrew once it became clear that the applicants did not propose to pursue their claim to the Victoria River or its beds and banks.
3 The application was heard by Weinberg J in March and April 2005. Additional submissions were filed between September and December 2005 and judgment delivered on 17 July 2006. His Honour found that the Ngaliwurru and Nungali Peoples had established that they had native title rights and interests in the claim area but that those native title rights and interests did not include exclusive rights to possession, occupation, use and enjoyment of the land. The parties were given an opportunity to consider the reasons and to formulate a draft determination to give effect to them. His Honour made a determination on 28 August 2006 which gave effect to his findings. It is set out in Annexure A to these reasons.
4 On 18 September 2006 Messrs Griffiths and Gulwin filed a notice of appeal asserting that his Honour erred in not finding that the rights and interests possessed under the traditional laws and customs acknowledged and observed by the native title holders conferred possession, occupation, use and enjoyment of the determination area on the native title holders to the exclusion of all others.
5 The Northern Territory filed a notice of cross-appeal on 11 October 2006. It contended that his Honour should have found that the laws and customs under which the rights and interests in the claim area were asserted are not traditional laws and customs. This was based on the proposition that the native title rights and interests as claimed by the appellants devolved through a process of cognatic descent (ie through both father and mother) representing a fundamental shift from the patrilineal descent rule which had existed at the time of sovereignty.
6 The Northern Territory also contended that his Honour erred in law in finding that s 47B of the Native Title Act 1993 (Cth) (the NT Act) applied to land within the proclaimed boundaries of the town of Timber Creek and that prior extinguishing acts affecting that land could thereby be disregarded. A notice of contention filed in the appeal sought to support his Honour’s finding of non-exclusive native title rights and interests on the basis that, because s 47B did not apply in the claim area, the prior grant of pastoral leases over the land and waters of the claim had resulted in the extinguishment of exclusive native title rights and interests. In the course of the appeal hearing a further notice of contention was filed in effect asserting that certain estate groups which were part of the relevant traditional society were not included in the native title claim group which therefore was not in a position to assert that its native title rights and interests were exclusive.
7 For the reasons that follow we are of the view that the appeal should be allowed and the native title determination application amended to reflect a finding that the appellants have possession, occupation, use and enjoyment of the part of the determination area described in [(a)] of Schedule A to the exclusion of all others. We are also of the opinion that the cross-appeal should be dismissed.
8 Having regard to the provisions of s 85A of the NT Act, the parties should bear their own costs of the appeal and cross-appeal.
Native title claim group
9 The native title claim group as ultimately identified in a further amended application filed on 18 March 2005 and treated by his Honour as a template for all three applications, comprised the Ngaliwurru and Nungali Peoples descended from six apical Ngaliwurru persons identified as:
. Punitjkula (whose children include Takawak and Jarapil, and whose grandchildren include Violet Paliti);
. Mangarmawuk, or Mungaramawuk or Mangaramawuk, (whose brother was Lamparangana, and who was Alan Griffiths’ and Pat Jatjat’s maternal grandfather);
. Tiyawatulwan (whose children include Little Wally Wanampiwiri, and whose grandchildren include Darby Tiyawatulwan);
. Tiyawakatak (whose children include Mutpurula, whose grandchildren include Jo Lewis Niyapat and whose great grandchildren include Josie Jones Tatpung, and whose great grandchildren include Stephen Jones Yawunula and his sister Lorraine Jones Purrungurungali);
. Pulawatitj (whose children include Walamawuk and Tinker Kananji/Lalamak and whose grandchildren include Larry Johns Mungkawali); and
. Puijayinkari whose grandchildren include Dinah Maylinti and whose great grandchildren include Darby Tiyawatulwan).
The land and waters the subject of the claim
10 The claim area is land and waters located in the town of Timber Creek, within the Timber Creek town boundary in the Northern Territory as set out in the Northern Territory Government Gazette No 24 of 20 June 1975. The claim area included:
. vacant Crown land and waters, Lot numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 22, 33, 35, 37, 49, 56, 57, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 80, 87, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112 and 113;
. the creek named Timber Creek (including its bed and banks) as delineated on a map attached to the Further Amended Application; and
. Special Purpose Lease 00494, granted to the Conservation Land Corporation for the purpose of carrying out its functions in accordance with the Conservation Commission Act 1980 (NT) (subsequently renamed the Parks and Wildlife Commission Act 1980 (NT)) consisting of Lot 16 of the Town of Timber Creek.
Any area in relation to which a previous exclusive possession act under s 23B of the NT Act had been done was excluded from the claim.
The native title rights and interests claimed
11 The appellants asserted in their further amended application that the Ngaliwurru and Nungali Peoples are entitled, under traditional laws acknowledged and traditional customs observed by them, to exercise native title rights and interests in relation to the claim area including:
(a) to possess, occupy, use and enjoy the area claimed to the exclusion of all others;
(b) to speak for and to make decisions about the use and enjoyment of the application area;
(c) to reside upon and otherwise to have access to and within the application area;
(d) to control the access of others to the application area;
(e) to use and enjoy the resources of the application area;
(f) to control the use and enjoyment of others of the resources of the application area;
(g) to share, exchange and/or trade resources derived on and from the application area;
(h) to maintain and protect places of importance under traditional laws, customs and practices in the application area;
(i) to maintain, protect, prevent the misuse of and transmit to others their cultural knowledge, customs and practices associated with the application area;
(j) to determine and regulate membership of, and recruitment to, a landholding group.
It was asserted in the application that the claim area is part of a larger area of land and waters owned and occupied by the Ngaliwurru and Nungali Peoples since before the acquisition of sovereignty.
Reasons for judgment of the trial judge
12 His Honour’s reasons for judgment, with schedules, occupied 210 pages. It included a detailed review of the evidence of indigenous witnesses and anthropological evidence as well as the voluminous documentary materials before the Court. The summary that follows focuses on those aspects of his Honour’s reasons which are relevant to the grounds of appeal, the cross-appeal and the notices of contention.
13 His Honour outlined the history of the claim area, evidence of which was set out in over 100 History Documents tendered in a large folder. He did not refer to them in detail as the historical record was not of itself a significant point of dispute between the parties. Broadly speaking the history was uncontentious.
14 European knowledge of the Victoria River district was gained gradually over a period of time from the earliest explorations until settlement. First European contact with the general area dated back to the mapping activities of Portuguese seafarers in the early 1500s. Successful exploration of the lower Victoria River was first undertaken in 1839 and observations made of a “native village” about one mile south west of the Victoria River. Evidence of a “large local population” was recorded. In 1855 Augustus Gregory led an expedition to the area. A major result of Gregory’s exploration was to make known the extent of prime grazing land in the region. Other explorations were carried out in the 1860s. In 1879 Alexander Forrest travelled overland from the Kimberley region. At about that time the first pastoral leases in the area were granted. Stocking of those holdings did not commence until several years later. The first permanent European settlement occurred with the establishment of cattle stations in the 1880s.
15 Following the arrival of permanent European settlers, Timber Creek became a significant port. It continued as such until the 1930s when the construction of roads made the port unnecessary. A local store was opened at a place known as Gregory’s Depot, upstream from the Victoria River Depot in 1890.
16 The growth of the pastoral industry led to exclusion of indigenous inhabitants from their traditional lands and conflict between them and pastoral owners. Ultimately the conflict decreased, peaceful contact became more regular and by 1905 most stations had established camps for Aboriginal workers at homesteads and outstations. By the 1930s the great majority of indigenous persons living in the Victoria River district lived in station camps and worked alongside Europeans. Some refused to live in the camps and continued to reside in the “rough back country” of the stations. Others moved between two modes of living.
17 During World War II many European station employees and drovers enlisted in the armed forces. Indigenous people played a greater role in the cattle station economy and some were put in charge of stock camps for the first time. After the war however, station life reverted more or less to what it had been in earlier times. Dissatisfaction with the terms and conditions of employment of Aboriginal people came to a head at Wave Hill in 1966. Aboriginal people walked off the job. They demanded full wages and improved conditions. Aborigines from other stations joined in the strike in subsequent years. Eventually Aboriginal people gained independence from the stations and began to receive full wages. On the other hand, pastoral property owners re-organised their economies. They spent more on fencing and other infrastructure and relied on technological advances, rather than large numbers of low paid stockmen. Far fewer Aborigines came to be employed than had previously been the case.
18 In 1976 the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land RightsAct) was enacted. It led to traditional owners obtaining grants of land in the northern Victoria River region. Fitzroy Station, Innesvale Station, the Stokes Range north of Jasper Gorge, Jasper Gorge itself, Mistake Creek, part of Wave Hill and the Hooker Creek Aboriginal Reserve all came under Aboriginal control.
19 His Honour referred to writings by an archaeologist, Darrell Lewis, experienced in the area, which indicated that Aboriginal people had been associated with Timber Creek from the time of the first European settlers and during the entire period of European settlement. Mr Lewis saw no reason to believe that the Aborigines encountered by the early explorers and settlers were not the ancestors of the Aboriginal people living in the area today. He referred to a long standing connection between the Ngaliwurru and Nungali Peoples and Timber Creek recorded in 1934 by Professor WEH Stanner. He said that the association of those people with Timber Creek had been maintained in spite of early violent contact with Europeans. According to his records, despite over 100 years of European settlement traditional languages are still spoken, ceremonies performed and traditional foods and medicines harvested.
20 The appellants based their case in large measure upon findings made by various Aboriginal Land Commissioners who exercised powers of inquiry, report and recommendation under the Land Rights Act between 1985 and 1992. The findings concerned land immediately surrounding Timber Creek but not the town itself. The Land Rights Act does not extend to land within proclaimed towns. The findings were relied upon not merely because of the proximity of the areas concerned to the claim area, but also because they related basically to the same indigenous groups as the appellants.
21 The appellants acknowledged before his Honour that any findings made by Aboriginal Land Commissioners had to be qualified having regard to the fact that they were made under a statutory regime significantly different from that of the NT Act. Under the Land Rights Act claimants must demonstrate “traditional Aboriginal ownership” as defined in s 3(1). The term “traditional Aboriginal owners” in relation to land, for the purposes of that Act, means “a local descent group” of Aboriginals. Such a group must have common spiritual affiliations to a site on the land that places it under a primary spiritual responsibility for that site and for the land. The definition of “Aboriginal tradition” in s 3(1) is:
the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.
Importantly, as his Honour noted, claimants under the Land Rights Act are not required to establish continuity or historical links with the land.
22 His Honour cited four determinations under the Land Rights Actwhich were of particular significance to the appellants. These were contained in:
. The Timber Creek Land Claim Report No 21 (19 April 1985) – delivered by Commissioner Maurice).
. The Kidman Springs/Jasper Gorge Land Claim Report No 30 (31 March 1989) – delivered by Olney J.
. The Stokes Range Land Claim Report No 36 (28 June 1990) – delivered by Olney J.
. The Ngaliwurru/Nungali (Fitzroy Pastoral Lease) Land Claim No 137 and Victoria River (Bed and Banks) Land Claim No 140 Report No 47 (22 December 1993) – delivered by Gray J.
His Honour said (at ):
Those findings were all generally favourable to the indigenous groups that instituted the land claims. Section 86 of the NT Act renders them admissible in these proceedings as “the transcript of evidence in any other proceedings before … any other person or body…”
He cited Risk v Northern Territory of Australia  FCA 404 per Mansfield J (at -).
23 Section 86 of the NT Act empowers the Court to receive into evidence the transcript of evidence in any other proceedings before, inter alia, any person or body and draw any conclusions of fact from that transcript that it thinks proper (s 86(a)(v)). The Court is also empowered by s 86(c) to adopt any recommendation, finding, decision or judgment of a body of a kind mentioned in subpara (v). There is a distinction between the receipt into evidence of the transcript of proceedings before a person such as a Land Commissioner and the adoption of findings made by that person. The first process involves the receipt of evidence upon which the Court may base its own findings. In the second process for which s 86(c) provides, the Court may accept a finding of another person or body resulting from a consideration of evidence by that person or body. That does not require that the Court examine for itself the evidence upon which the adopted finding was made. On the other hand it would allow the Court to give some consideration to the evidence underpinning the findings to satisfy itself that the finding was reasonably based on the evidence.
24 His Honour did not make clear the way in which s 86 of the NT Act was applied to his consideration of the Commissioners’ reports. He, in effect, outlined the content of the reports and the conclusions reached in them and appears to have treated those conclusions as evidence of the facts found without expressly adopting them as findings of his own. To the extent that he relied upon them we treat his reliance as an adoption of the findings.
25 The Timber Creek Land Claim Report dealt with a claim originally confined to the Timber Creek Commonage Reserve but ultimately amended to include the southern bank of the Victoria River between the eastern and western boundaries of the Reserve and adjoining the Reserve which did not form part of the town of Timber Creek. The claimants comprised six subgroups each associated with a separate tract of land. According to Commissioner Maurice, who made the report, it appeared from the genealogies and the evidence associating past generations with one tract or another, that the predominant, if not exclusive, principle for recruitment to the sub-groups was patrilineal descent. The exception was sub-group A whose patriline had died out in recent times. An anthropologist, Dr Ian Keen, had described the claimants in evidence before the Commissioner as a “cognatic kin group”. The Commissioner accepted that description but considered it unnecessary to rely upon it in order to find that the claimants now formed a local descent group within the meaning of the Land Rights Act. The learned trial judge quoted a passage from the Commissioner’s report thus (at ):
It is enough for me to say that up until the generations constituted by the children and grandchildren of the senior generations of claimants, there was operating a principle of patrilineal descent to which all persons born up to then appeal to legitimise their membership of the total group. The two senior members of sub-group A can, and to my mind do, rely in part upon succession to the country of their deceased mother’s father. All those in the succeeding generations can point to descent through the patriline or the matriline or both, and that, I am satisfied, is the principle of descent which has been operating for two or three generations among this group.
26 The present appellant, Alan Griffiths, was a member of sub-group A and he gave evidence in the course of the Timber Creek Land Claim hearings. The patriline relevant to sub-group A had died out with the death of Lamparangana in the late 1940s or early 1950s. Genealogies showed some four generations below Lamparangana. He was said to have had only one child, a son, who had been killed while young. He was also said to have had a brother, Mangaramawuk, who had a daughter, Clara, who in turn had two children, Alan Griffiths and Mrs Smiler (now deceased). Both Mr Griffiths and Mrs Smiler were claimants in the Timber Creek Land Claim as were their children and grandchildren.
27 His Honour referred to the Commissioner’s findings about other sub-groups. The father country for some of them was Kuwang, better known as Stokes Range, which lay well to the east and south of the claim area. Three patrilineal members of that sub-group had spoken during the hearing before the Commissioner. At  his Honour said:
The Commissioner noted that, over and over again, the senior claimants described the responsibility of the whole group for the claim area. He said that he could not find any smaller collection of the claimants who might rightly be identified as having responsibilities of a higher order than the rest of them.
He then quoted a passage from the Commissioner’s report at - (at ):
To understand how I arrived at this conclusion, I think it is helpful to state my impression of how the senior claimants perceive and conceptualise the events of the recent past. Firstly, they do identify particular tracts of land with six identifiable patriclans. Secondly, because of the influences and constraints placed upon them over the past 100 years or so by European settlement, Lamparangana’s country must have developed outstanding economic and religious significance for them. Thirdly, at least in that period, secondary rights in and responsibility for country traditionally derived from mother or her male relatives, for co-residence, from marriage and possibly from other sources must have had great significance. Dr Keen’s categorisation of the six sub-groups as together constituting a cognatic kin group serves to emphasise the underlying familial ties that justified the oft made assertion that all the family – meaning all the six sub-groups – were looking after the country now. Fourthly, people asserted a right to Lamparangana’s country in common with other claimants, not by asserting their membership of a group, but by calling upon blood or affinal connections with him. Fifthly, Lamparangana was the last of the line. From what I can gather of the nature of the man, he too must have been very concerned about who would look after the country when he was gone. Sixthly, Little Wally and Takawuk were short on patrilineal descendants to ensure the survival and continuity of the group. Seventh, eminent men like the fathers of Jo and Duncan, the two Micks, and Paddy Bullita had been dispossessed in the sense that their father country had been taken over by the pastoralists and was now no longer as accessible to them.
What I think has happened is that during, if not before, Lamparangana’s time, there was begun a gradual blurring of the distinction between the responsibilities of those who were patrilineally associated with the claim area and those who were not. For their culture to survive it was necessary to accord equal status to the larger cognative kin group. I strongly suspect that the catalyst for this was the need to recognise a successor to Lamparangana’s country.
Whatever the precise dynamics, we now have a group made up of the patrilineal and matrilineal descendants of six old-world patriclans who together constitute the local descent group and as such have undifferentiated, and hence primary, spiritual responsibility for the claim area.
28 His Honour next referred to the Kidman Springs/Jasper Gorge Land Claim Report. This related to a parcel of land comprising an area of approximately 370 square kilometres near Victoria River Downs bounded by the Auvergne stock route and the former pastoral lease known as Delamere. Alan Griffiths was one of the claimants. His Honour noted (at ):
After setting out several fundamental aspects of the “Dreaming”, as the claimants used that term, Justice Olney distinguished between the patrilineally inherited relationship, or kuning, and the wider “Dreaming” frequently used by the claimants which encompassed matrilineal identities as well.
29 The Stokes Range Land Claim Report covered an area known by the claimants in that matter as Kuwang. Their language identity was described in the report as Ngaliwurru, although the land under claim did not constitute the full extent of their country. According to Olney J’s report the Ngaliwurru people had maintained extensive ties with neighbouring language groups. Their country was adjacent to that of the Nungali to the north and to the Jaminjung to the north-west. His Honour referred to the report in outline and noted Olney J’s conclusion that the claimants in that case had a responsibility to care for and protect sites in the claim area. Only those with a proper relationship to country could speak for it. All members of the local descent groups had the right to forage over their respective countries. He cited Olney J’s observation that only the claimants had the right to water the heads of strangers to ensure their proper introduction to the country and to its ancestors. In that claim, as his Honour observed, Olney J concluded there was overwhelming evidence to support a finding that the three groups of claimants were the traditional Aboriginal owners of the claim area and could be regarded as a single coherent group with common affiliations and common aspirations.
30 His Honour next turned to the report of the Aboriginal Land Commissioner, Gray J, in Ngaliwurru/Nungali (Fitzroy Pastoral Lease) Land Claim No 137 and Victoria River (Bed and Banks) Land Claim No 140, Report No 47. The report on these claims was dated 22 December 1993. His Honour cited extensively from it. He referred to passages in which Gray J dealt with the notion of descent criteria and in particular his discussion whether members of a local descent group included those who claimed through their father’s mothers and their mother’s mothers. Gray J said (at [3.2.2]):
It is plain that the recognition of the rights of people to the country of all four grandparents as a matter of course would result in the disappearance within a relatively short time of any notion of separate groups with responsibility for different areas of land. The way in which the claim was put indicates that the claimants have not been so generous in affording recognition of traditional rights.
31 Gray J found that, although there were seven identifiable areas of land each associated with a descent group, the reality was that responsibilities were viewed as shared on a much less strict basis. There was considerable overlapping of areas of land associated with different groups. Gray J also observed that there were no living patrilineal descendants of those whose country was claimed by members of the group known as Makalamayi. Lamparangana had been a respected and active custodian of the country to which that group laid claim. He had no living descendants. His brother, Mangaramawuk was survived by two grandchildren, Alan Griffiths and Mrs Smiler (now deceased). Gray J concluded that they were both entitled to membership of the Makalamayi group. The Makalamayi country was found by Gray J to be heavily based on the town of Timber Creek. Members of the group ranked equally in their obligations and rights whether they had acquired membership through their fathers or through their mothers.
32 Weinberg J reviewed the relevant provisions of the NT Act, case law and principles governing the determination of native title rights and interests. He then essayed a review of the appellants’ evidence. While the testimony of most of the indigenous witnesses was summarised on a thematic basis, Mr Griffiths’ evidence was set out in some detail. His Honour described it as “by far the most important in support of the claimants’ case” (at ). His review of that evidence did not include any reference to evidence about the exclusion of strangers save for one passing reference to Mr Griffiths’ explanation of the importance of the head wetting ceremony.
33 His Honour referred to evidence that Mr Griffiths gave about a meeting that took place some time after the death of Lamparangana. The meeting concerned who would take responsibility for Makalamayi. Mr Griffiths said that under traditional law, when someone in Lamparangana’s position died, there had to be discussions about who would succeed him in looking after the country. He recalled a meeting at Kununurra, and possibly another at Timber Creek, on the subject. Those who attended included people from Bradshaw, Yanturi, Gulugulu, Wantawul, Kuwang and Maiyalaniwung. Those who attended agreed that he and his sister, Mrs Smiler, would take over the care of Makalamayi.
34 His Honour looked to evidence of the various witnesses as to their links to Makalamayi. Josie Jones, the sister of a Mr Lewis (now deceased) and the wife of Jerry Jones, said that she took Makalamayi as her country through her connections with Myatt, which was Ngaliwurru land. Her kakung country, from her father’s father, was Yanturi. She said that if somebody wished to build in Makalamayi they would have to “seek permission”. They would have to ask Alan Griffiths, Jo Lewis, Jerry Jones and herself. If Alan Griffiths were not around he would be contacted and generally come to Timber Creek to discuss the matter. His Honour quoted from her evidence:
Makalamayi country is still Griffo’s even if he is not living in Timber Creek. It’s ok to live away from your country, it’s still your country, I can’t change that.
He referred to evidence of head wetting ceremonies given by Mr Georgie Jones, Jerry Jones’ half brother. He conducted head wetting ceremonies at Wunjaiyi and spoke to the various Dreamings in the language for their particular country. His Honour also reviewed the evidence of Aboriginal witnesses in relation to their traditional laws and customs and in relation to language.
35 His Honour turned to a detailed consideration of anthropological evidence beginning with that given by two anthropologists called on behalf of the appellants, Dr Kingsley Palmer and Ms Wendy Asche. The background to their report, its review of anthropological evidence, the claimant community and ancestral and genealogical ties to particular country were referred to. The countries and members of country groups described in the report were also reviewed.
36 Dr Palmer and Ms Asche said that affiliation to country in Timber Creek could be established by applying any one of four descent based principles. A person could take country through his or her paternal grandfather, paternal grandmother, maternal grandfather or maternal grandmother. The first two principles of descent were characterised as patrilineal and the second two principles as matrilineal. An adoptive relationship was regarded as equivalent to one that is consanguineal provided that the adoption was socially sanctioned. A system of this kind where land can pass through either the male or female line is usually described by anthropologists as a cognatic descent system or a cognatic system for short. The majority of the indigenous persons that they interviewed spoke of their father’s father’s country which they termed “kakung” and their mother’s father’s country which they termed “jawajing”. Alan Griffiths had told them that his jawajing country came first but there was a choice and no one way was right. Claims to jawajing were described by the anthropologists as indirectly patrilineal, filiation being via the female line for potentially only one generation. His Honour observed that this was somewhat confusing given that the relationship is in fact matrilineal. Not all of the appellants’ witnesses agreed with Alan Griffiths. Mr Lewis and Josie Jones told the anthropologists that they regarded jawajing country as in some respects subsidiary to kakung country.
37 His Honour referred to the findings of Commissioner Maurice in the Timber Creek Land Claim and said that they raised the issue of whether there had been a significant change in the way in which country groups were now recruited (at ):
Put at its most simple, were country groups pre-contact recruited patrilineally? Is there evidence that this was so? Does the change to a cognatic system indicate a fundamental alteration to the manner of recruitment to the country group? Does ‘patrilineal bias’ indicate a preference for claiming patrifiliation founded upon historical principles?
Their anthropologist’s evidence was that neither the anthropological evidence nor scholarly literature provided a concluded or agreed view on those questions. Until 20 years or so ago there was an assumption among anthropologists that country groups were patrilineally recruited. Evidence produced as a result of extensive research into land claims had shown that this may not have been the case. It was now clear that rights to country could be gained in a number of ways of which patrilineal descent was but one. The evidence presented in the various land claims around Timber Creek was consistent with cognatic descent having become a common principle by which people expressed affiliation to country. Nevertheless patrifilial descent had been, and still was, an important means whereby people in Timber Creek affiliated to country. His Honour quoted what he regarded as a critical observation by Dr Palmer and Ms Asche (at ):
There may have been a shift over time, and the number of patrifiliates has decreased while the number of matrifiliates has increased. However, and in our view, the normative system underpinning the acquisition of rights to land has not changed, only its emphasis.
They disagreed with the observation in the Timber Creek Land Claim Report that the original patriclans had collapsed into a single group making up the claimant community.
38 His Honour also outlined the anthropologists’ evidence about the rights and duties of members of country groups. He drew from it that members of the country groups that they identified had various gradations of rights of ownership. These included access rights, exclusion rights, rights relating to intellectual property and “use and benefit rights”. Duties were propounded including a duty to protect country, to care for country and to care for visitors. They referred to Mr Griffiths’ evidence in which he spoke of Ngaliwurru and Nungali people “sharing” Makalamayi. His Honour said (at ):
Mr Griffiths said that the members of each of the five country groups in question could enter the other countries freely, without asking permission of anyone. The only constraint applied to women who would have to ask first in order to make sure that they did not contravene any secret ritual business. Members of other groups, including, for example, the Ngaringman, would need to ask first, unless they were travelling for Winan, in which case, they could enter Ngaliwurru and Nungali country freely.
And at :
In the authors’ view, all members of the claimant group were entitled to use the resources of the claim area. However, that entitlement was tempered by “a spiritual reality” which explained why some people were reluctant to venture too far into country without the guidance of others. For strangers, such guidance was essential. In effect, asking permission was irrelevant because to go somewhere unknown, without that guidance, would be to court disaster.
39 The next element of the appellants’ anthropologists’ evidence that his Honour considered was the continuity of connection with country. He quoted extensively from the report. One paragraph quoted was in the following terms (at ):
The ways in which the applicants consider themselves to be owners of areas of country (which includes, but is not limited to) the application area, furnishes them with rights to that country. The exercise of these rights is observable in practice and includes access rights, the right to control the access of others, rights to the resources of the country, rights to the intellectual property associated with the country and the assumption of roles in ritual. Exercise of these rights is hedged round with rules and requirements, which are considered to be imbedded within the applicants’ culture.
40 His Honour set out what he described as “key points” arising from the summary of the evidence given by Dr Palmer and Ms Asche (at ):
. descent is the primary principle for reckoning membership of country groups, and this has been so since before European contact;
. descent at Timber Creek is cognatic, though there is some preference for claiming country via patrifiliation;
. it is likely that there has been a move away from patrifiliation to cognatic descent over the past two or three generations;
. the claimants share a belief in the spirituality of the Dreaming, and have traditional beliefs, practices, concepts and ways of doing things that render them a distinctive culture, and a homogenous community;
. given the complexity, and rich nature of the social relationships that exist, it is unlikely that these have emerged in recent times;
. Dreaming and spirituality are considered to be contemporary manifestations of past events during which culture was ordained. Knowledge of these things has been handed down from generation to generation; and
. though the early literature available for the Timber Creek area does not demonstrate conclusively that the system of laws and cultural rules that applies today would have been found in the community at the time of first contact, still less in 1825, it is the authors’ view that the claimants’ “culture and the rules that mould it are, in all probability, based upon a traditional system that predates sovereignty.
41 His Honour then reviewed the anthropological evidence called for the Northern Territory. This was given by Professor Basil Sansom, whom his Honour described as “a distinguished anthropologist”. Professor Sansom’s lengthy report responded to and critically evaluated the report prepared by Dr Palmer and Ms Asche. He relied heavily upon the findings of Professor WEH Stanner, based upon his contact with the people of the Victoria River region in 1934 and 1935. Professor Stanner had concluded that the people were all of the patrilineal totemic clan. Professor Sansom regarded that finding as unassailable. He viewed the shift to cognation at Timber Creek as a reactive adjustment to population loss, displacement, relocation and the mixing together of Aboriginal populations on an unprecedented scale. The people had been required to develop survival strategies in the face of an overwhelming settler presence and the takeover of their lands. Professor Sansom cited a work by Professor Peter Sutton “Native Title in Australia: An Ethnographic Perspective” (2003). He took from that work the thesis that the emergence of cognatic descent groups constituted an aspect of “post-classical social organisation” and was a revised normative system of “post-classical kinship”. Patrilineal people moving to cognatic kinship experience a collapse of clan structure. Distinctly defined estate groups disappear. There is a revision of the sacred and totemic geography of the “tribe” or language-owning group. Ownership is claimed not on an estate basis but as ownership of a “language country” or “tribal territory”. Cognation diversifies and generalises interests in country, while traditional patriliny concentrates rights and interests in estates.
42 His Honour observed that having made these points Professor Sansom did not identify any factors that might indicate that such revolutionary changes had occurred at Timber Creek. His examples of the process were Darwin and Katherine, both large towns and “vastly different” to Timber Creek. Professor Sansom’s conclusions, if accepted, would cast doubt upon the existence of the native title claim group as pleaded and therefore upon whether there were communal native title rights and interests of the type alleged. They would cast doubt upon whether any rights and interests shown to exist were possessed under “the traditional laws acknowledged, and the traditional customs observed” by the claimants. They would at least substantially weaken the contention that the claimants “by those laws and customs, have a connection with the land or waters” (at ). His Honour also reviewed Dr Palmer’s rebuttal of Professor Sansom’s evidence.
43 His Honour set out his findings of fact. He was satisfied on the basis of the evidence of the indigenous witnesses, supported by the historical material “and also by the findings of the various Land Commissioners” that the native title claim group constituted a society bound together by adherence to traditional laws and customs. He was also satisfied that they were linked to the claim area through ancestral ties going back to Lamparangana and well before his time. They continued to acknowledge traditional laws and to observe traditional customs in much the same way as their ancestors did over many generations. His Honour identified the real factual dispute in the case as turning upon the interpretation to be placed on primary facts adduced from the indigenous witnesses. He accepted the evidence of Dr Palmer and Ms Asche in preference to that of Professor Sansom. Dr Palmer and Ms Asche had a very real advantage because of their extensive involvement with the members of the claimant group over many years and the empirical foundations for their report. Professor Sansom although having had considerable experience in other parts of Australia, had little direct involvement with those in the region around Timber Creek. His analysis was largely theoretical and extrapolated from his work in other communities. He had accorded undue deference to the early work of Professor Stanner.
44 His Honour found Mr Griffiths was regarded by the Ngaliwurru and Nungali Peoples as a leading figure in Timber Creek in matters of ritual and ceremony. The evidence established that in that area local proprietorial interests determine what a man might legitimately do in the performance of such ritual and ceremonial matters. There was a normative system in place in relation to those matters and substantially the same normative system has existed for generations. The restrictive evidence, in particular, pointed to a link between symbols of the higher order ritual, and proprietary interests in land.
45 Importantly his Honour rejected the proposition that there had been a fundamental change in the normative system governing rights to country in the claim area. There had been a gradual shift from a patrilineal to a cognatic system and the shift was continuing. The crucial point was that rights to “country” in Timber Creek were and always had been based upon principles of descent. The shift to cognation was one of emphasis and degree. It was not a revolutionary change giving rise to a new normative system.
46 His Honour considered the identification of the claimant group. There was no real dispute in the case as to the ancestral connection between what might be termed the original native title holders and the current claimants. Biological descent was plainly established. The issue that divided the parties was whether there had been a fundamental change in the normative system underlying the acquisition of native title from a patrilineal descent system to a cognatic descent system and, if so, whether that prevented the claimants from maintaining a traditional connection with the land in accordance with traditional laws and customs. He had resolved that issue in favour of the claimants.
47 His Honour then considered the requirement of connection which he said did not loom large in that case. The appellants’ group occupied the area in and around Timber Creek not randomly but because their forebears occupied the region generations ago.
48 In the event, his Honour was satisfied that the appellants had established that they possessed native title rights and interests in the claim area as defined in s 223(1) of the NT Act. He was able to also infer continuity of the community and its connection back to the time of sovereignty (at ):
It is reasonable to infer that the indigenous people who inhabited the Timber Creek region in about the middle of the nineteenth century, and who acknowledged and observed essentially the same laws and customs as do the present claimants did not simply invent them. There is nothing in the evidence to suggest that the ritual and ceremonial practices observed by the inhabitants of this area since about that time, in a largely unbroken pattern, were suddenly created, or radically transformed from what had gone immediately before. The ethnography, and the few contemporary records that are available, support the conclusion that this pattern has evolved over hundreds of years.
49 His Honour found the senior claimants had established that they were the direct descendants of a group of indigenous inhabitants of the area around Timber Creek and that they observed essentially the same rituals and ceremonies as were practised by their ancestors more than a century ago.
50 His Honour next turned to consider the nature of the native title rights and interests held by the claimants. The critical issue was whether or not their rights and interests were to be regarded as “exclusive”. Both the Northern Territory and the AFANT submitted that if native title were found to exist, the nature and extent of the native title rights and interests in relation to the claim area were not “exclusive” but rather usufructuary in nature. His Honour undertook a general discussion of the principles underlying the definition of native title rights and interests. He said (at ):
The question to be determined in these proceedings is whether the native title rights and interests of the claimants that have been established rise significantly above the level of usufructuary rights. In my view, that question should be answered both “yes” and “no”. The evidence in this case establishes both usufructuary and proprietary rights. However, it falls short of establishing native title rights and interests in relation to the claim area “to the exclusion of all others”. It also falls short of establishing an unfettered right on the part of the claimants to control others’ access to that area, or to control others’ use and enjoyment of the resources of that area.
51 His Honour acknowledged that some indigenous witnesses who gave evidence had spoken of a yakpalimululu as someone who could “deny others access to certain foraging areas”. Josie Jones had given evidence that if someone wanted to build in Makalamayi they would have to ask permission. If a white person wanted to go on to the land, that person would be expected to ask permission first. The purpose would be to enable important sites to be identified to the visitor presumably so they might be protected. Mr Harrington had given evidence about those who had to be consulted in relation to any activities at Timber Creek. His Honour observed that a number of other witnesses also gave evidence about the process of consultation that had been followed in relation to a proposed mine that did not proceed because of its proximity to a site of significance. Jerry Jones had told Dr Palmer and Ms Asche that he regarded himself as entitled to fish, camp, take ochre and induct strangers. Indigenous persons not members of the Ngaliwurru-Nungali community were expected to “ask permission” before doing any of those things. However, he regarded seeking permission as irrelevant because in practice no indigenous person would wander about on the land without the guidance of a member of the community. His Honour referred (at ) to what he called “scattered references” in the anthropological material which “hint at” the need to obtain permission before entering the land. He did not consider that they justified a finding that the appellants had exclusive rights. His Honour regarded theevidence supporting the right to exclude others from using the waters of Timber Creek as, if anything, even weaker than that in relation to land.
52 The next issue relevant to the cross-appeal concerned the extinguishing effects of historical pastoral leases and whether s 47B of the NT Act could be invoked to overcome that extinguishment. His Honour found that the tenure history of the claim area and the fact that it was all previously covered by pastoral leases made it plain, that subject to the possible operation of s 47B of the NT Act, native title had been extinguished. If s 47B had the effect to which the appellants were contending, it was unnecessary to resolve the question whether such extinguishment would otherwise be total, or only partial. The reason would be that, pursuant to s 47B extinguishment would simply be disregarded.
53 His Honour then considered the application of s 47B and cases dealing with it and, in particular, the recent decision of the Full Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442. Applying that decision, which is discussed later in these reasons, his Honour concluded that s 47B applied to Timber Creek notwithstanding its proclamation as a town and the setting aside of Crown lands within its boundaries in May 1975. That proclamation was made under s 111 of the Crown Lands Ordinance 1931-1972 (NT) (the Ordinance).
54 His Honour considered the nature and extent of the native title rights and interests for the purposes of his determination under s 225. He returned to the question of exclusivity. He said (at - ):
As I have already indicated, the evidence in the present case goes no further, in my view, than to establish that the claimants have been asked, on occasion, by other indigenous people wishing to come upon their land for “permission” to do so. The evidence is somewhat obscure, but suggests that these requests are made as a matter of prudence, because visitors would be at risk if they were simply to go upon the land without seeking permission, and without obtaining guidance and assistance.
The ongoing normative system regarding relationship to country that the evidence before me discloses does not fit the template of a right to possess “to the exclusion of all others”. Nor does it suggest a general right to “control access” to the land in any relevantly proprietorial sense. In reality, the claimants seem to me to assert a right, under their traditional laws and customs, to be consulted about matters that might harm the land, and a right to veto any activity which might be detrimental. This falls well short of the broader claim that is pleaded, to possess the land to the exclusion of all others.
His Honour then considered the waters of Timber Creek and summarised his findings.
55 On 28 August 2006 his Honour made the determination which is attached to these reasons.
Grounds of Appeal
56 The notice of appeal raised the question whether his Honour erred in holding that the appellants’ native title rights and interests were non-exclusive. The grounds were formulated as follows:
(1) In holding that the rights and interests possessed under the traditional laws and customs acknowledged and observed by the native title holders do not confer possession, occupation, use and enjoyment of the determination area on the native title holders to the exclusion of all others, the primary Judge erred in considering that:
(a) as rights on the part of the native title holders under their traditional law and custom to be asked permission and to speak for country served purposes relating to the safeguarding of country and the protection of strangers to country, the content and operation of the rights was thereby limited to those purposes and did not extend to the exclusion of all persons other than the native title holders (reasons, , , -, );
(b) rights on the part of the native title holders under their traditional law and custom to be consulted about matters that might harm country, and to veto any activity that might be detrimental to country, does not fit the template of a right to possess land to the exclusion of all others, nor does it suggest a general right to control access to land in any relevantly proprietorial sense (reasons, );
(c) it was necessary to establish that rights on the part of the native title to control or restrict access to country had been exercised against strangers to country (reasons, , -, ).
2. The primary Judge erred in not finding that the rights and interests possessed under the traditional laws and customs acknowledged and observed by the native title holders confer possession, occupation, use and enjoyment of the determination area on the native title holders to the exclusion of all others.
Proposed variations to the determination
57 Counsel for the appellants handed up, during the hearing of the appeal, a document entitled “Proposed Variation of Native Title Determination”. Variations to the determination set out in the document differed from those sought in the notice of appeal. The document was received as an amendment to that notice.
The cross-appeal by the Northern Territory
58 The Northern Territory raised three issues on its cross-appeal:
1. Whether, having found there had been a shift from principles of patrilineal descent to principles of cognatic descent, his Honour erred in holding that the native title claim group continued to acknowledge and observe traditional laws and customs giving rise to rights and interests in relation to land.
2. Whether his Honour erred in holding that s 47B of the NT Act applied to the area within the proclaimed boundaries of the town of Timber Creek so that any extinguishment of native title rights and interests by the creation of prior interests in that area could be disregarded; and
3. Whether one area, Lot 47, previously the subject of Crown Lease Term 624 granted under the Crown Lands Act 1931 (NT) was a previous exclusive possession act under s 23B of the NT Act and thus expressly excluded from the area covered by the native title determination application.
The Northern Territory’s first notice of contention
59 The Northern Territory filed a notice of contention in support of his Honour’s finding that the native title rights and interests were non-exclusive. Rather than relating to the content of the indigenous and anthropological evidence, this contention relied upon the extinguishing effects of prior grants of pastoral leases on any exclusive elements of the native title rights and interests. This extinguishment, it was said, could not be disregarded by reason of s 47B of the NT Act. His Honour was said to have erred in finding that that section did apply to the area within the proclaimed boundaries of the town of Timber Creek so as to enable disregard of the previous grant of pastoral leases.
The Northern Territory’s further notice of contention
60 In responding to the appellants’ arguments about exclusivity counsel for the Northern Territory sought to support the judgment of the learned primary judge on the basis that the native title claim group was not exhaustive of persons entitled, under traditional law and custom, to exercise rights in respect of the determination area. The Court pointed out that this argument should have been the subject of a notice of contention. Subsequently, during the hearing of the appeal, the Northern Territory submitted a “Notice of Further Contention”. It proposed that subject to the matters raised in the cross-appeal the judgment should be affirmed “on grounds other than those relied on by the court below”. The grounds were:
1. His Honour erred in not finding that the native title claim group identified in the amended Native Title Determination Application did not constitute all Ngaliwurru/Nungali peoples entitled under traditional law and custom to exercise rights in respect of the determination area.
2. On this additional basis the judgment and determination appealed from should be affirmed insofar as it finds and determines that:
2.1 the native title rights and interests which are held in the determination area are non-exclusive rights to use and enjoy land and waters; and
2.2 the native title rights and interests which are held in the determination area do not confer possession, occupation, use and enjoyment of the land and waters of the native title holders to the exclusion of all others.
Statutory framework – native title rights and interests
61 Section 223 of the NT Act provides, inter alia:
Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
The remaining subsections are not material for present purposes.
62 Section 225 provides:
Determination of native title
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Whether the finding of non-exclusivity involved an error of principle
63 The learned primary judge held that the evidence in the case fell short of establishing native title rights and interests, in relation to the claim area, to the exclusion of all others. The appellants first contended in their written submissions that his Honour had erred “in principle”. The error in principle asserted was the use of criteria for characterisation of native title rights and interests that were relevant to property rights at common law. The appellants relied upon the statement in Commonwealth v Yarmirr (2001) 208 CLR 1 (at ):
Because native title has its origin in traditional laws and customs, and is neither an institution of the common law nor a form of common law tenure, it is necessary to curb the tendency (perhaps inevitable and natural) to conduct an inquiry about the existence of native title rights and interests in the language of the common law property lawyer.
The appellants submitted that the inquiry which his Honour undertook was whether the rights and interests held by the native title holders under their traditional laws and customs were “akin to rights that are usufructuary in nature” (at ) or “rise significantly above the level of usufructuary rights” (at ). That inquiry, it was said, was undertaken to determine whether the “incidents of the native title rights and interests that have been demonstrated are ‘exclusive’” (at ). The approach so formulated was said to be erroneous.
64 Section 223 of the NT Act indicates that native title rights and interests are “communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders” which meet the criteria in paras 1(a), 1(b) and 1(c) of that section. To ascertain the existence of such rights and interests requires no application of the taxonomies of the common law of property. Nor is it required in the definition of native title rights and interests for the purposes of a determination of native title in the form required by s 225.
65 His Honour identified “the question to be determined in these proceedings” as “whether the native title rights and interests of the claimants that have been established rise significantly above the level of usufructuary rights” (at ). That question appears to have had a direct bearing on whether those rights and interests could be regarded as exclusive. The significance of the usufructuary/proprietary distinction in this context is not clear. The concept of usufructuary rights is derived from Roman law. A usufruct is “a right to use and enjoy the fruits of another’s property for a period without damaging or diminishing it, although the property might naturally deteriorate over time”: Black’s Law Dictionary (8th ed), Thomson West at 1580.
66 In warning against approaching native title conceptually in terms appropriate to English law, Viscount Haldane said in Amodu Tijani v Secretary, Southern Nigeria  2 AC 399 (at 403):
A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the Sovereign where that exists. In such cases the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached. But this estate is qualified by a right of beneficial user which may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence.
In The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 397 Barwick CJ referred to the native title of Papua New Guinean people after declaration of the Protectorate or annexation by the British Crown as “usufructuary”. He identified what he called “the traditional result of occupation or settlement” namely:
...though the indigenous people were secure in their usufructuary title to land, the land came from the inception of the colony into the dominion of Her Majesty. That is to say, the ultimate title subject to the usufructuary title was vested in the Crown. Alienation of that usufructuary title to the Crown completed the absolute fee simple in the Crown.
(McTiernan, Menzies and Stephen JJ agreed with Barwick CJ’s reasons).
67 The characterisation of native title as usufructuary in the sense used in Amodu Tijani  2 AC 399 and in Daera Guba 130 CLR 353 does not preclude the inclusion in it of exclusive rights of possession, occupation and use arising under traditional law and custom. If it be the case that native title rights are usufructuary because they involve, at common law, the right to use the sovereign’s land then the usufruct may incorporate rights to exclude others from the land. The sovereign of course in the exercise of its executive or legislative authority may extinguish such rights but that possibility does not preclude their characterisation as exclusive. The passage quoted from the judgment of Viscount Haldane was quoted with approval in the joint judgment in Yarmirr 208 CLR 1 at .
68 In Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61, Brennan J said that native title rights and interests established by evidence might be “proprietary or personal and usufructuary in nature”. In Wik Peoples v State of Queensland (1996) 187 CLR 1 at 169, Gummow J adverted to the variable content of native title rights:
It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein.
69 Young J in the Supreme Court of New South Wales considered the concept of “usufruct” and “usufructuary right” in Mason v Tritton (1993) 6 BPR 13,639. An Aboriginal man had been convicted of having in his possession a quantity of abalone beyond permitted limits. The defence turned on the man’s claim to have a native title right, recognised by the common law, to fish in the relevant waters. Young J dismissed an appeal against the conviction. An appeal against his decision was in turn dismissed by the Court of Appeal in Mason v Tritton (1994) 34 NSWLR 572. Young J referred to the Roman law understanding of a usufruct as a right to the use and fruits of another’s property and the duty to preserve its substance (13,641). He observed that, in the context of traditional native title, it had been used to describe hunting and fishing rights on land or waters over which the whole of the country did not have dominion and (at 13,642):
includes the situation where a community of people have the dominion over a piece of land but individuals, because they are members of the community, also may avail themselves of the right.
After citing and quoting from Crocombe’s Land Tenure in the Cook Islands (1964) he concluded:
Thus it would appear that most commonly the words “usufructuary right” denote the right of a member of a community or tribe which is not the group primarily connected to the land to use the land for certain purposes. Such purposes usually mean hunting or fishing or gathering fruits, nuts and other produce.
His Honour observed that although Brennan J in Mabo (No 2) referred to native title as “proprietary, usufructuary or otherwise”, the Mabo decision was concerned only with land rights (at 13,642).
70 In the Court of Appeal, Priestley JA (Gleeson CJ agreeing) decided the case on the basis that there was no evidence of any recognisable system of rules governing the taking of abalone. Kirby P came to a similar conclusion. He understood Brennan J in Mabo (No 2) to have referred to a usufructuary right as a right to enjoy a thing in which the holder of a right had no proprietary interest (at 581):
... where Brennan J in Mabo speaks of the ability of the common law of Australia to recognise and protect usufructuary rights, his Honour is there clearly enough referring to the fact that native title to the use, possession and occupation of land is normally held by a community. An individual’s right to derivative use and benefit of that land is capable of protection in a manner analogous to the protection traditionally afforded to a usufructuary right.
His Honour regarded that which Brennan J described as “usufructuary right[s]” as “dependent upon the wider native title to land being established” (581).
71 The judgments referred to above are sufficient to indicate that the use of the common law taxonomy of usufructuary and proprietary rights in ascertaining the content of native title rights and interests involves a risk of confusion and distraction from the requirement to have regard to what the evidence says about the nature of the native title rights and interests in question. In our opinion the question whether the native title rights of a given native title claim group include the right to exclude others from the land the subject of their application does not depend upon any formal classification of such rights as usufructuary or proprietary. It depends rather on consideration of what the evidence discloses about their content under traditional law and custom. It is not a necessary condition of the existence of a right of exclusive use and occupation that the evidence discloses rights and interests that “rise significantly above the level of usufructuary rights”. With respect, the question posed by his Honour was unnecessary and had the potential to lead into error. It appears that, when his Honour went on to consider the evidence relevant to the existence and content of the native title rights and interests held by the appellants and those on whose behalf they brought the application, classificatory considerations may have affected his characterisation of those rights and interests. His observation(at ) that the “ongoing normative system regarding relationship to country” did not suggest “... a general right to “control access” to the land in any relevantly proprietorial sense” conveys that appearance. This leads on to the second limb of the appellants’ argument which is that his Honour erred in fact having regard to the evidence which he accepted. It requires consideration of the evidence at trial relevant to control of access to the determination area.
Evidence at trial relevant to exclusivity of native title rights and interests
72 The Court was referred by counsel for the appellants to the evidence of the Aboriginal witnesses said to go to exclusivity and to relevant parts of the anthropological expert testimony. The expert testimony offered an overview of the traditional laws and customs of the appellants’ community which reflected what appeared in the evidence of individual witnesses.
73 Dr Palmer and Ms Asche said in their report that the appellants identified with named areas of country called yakpali. They identified five country groups, Makalamayi, Wunjaiyi, Yanturi, Wantawul and Maiyalaniwung. The term yakpalimululu referred to an owner of country and was often used synonymously with the English word “boss”. Of yakpalimululu they said:
A yakpalimululu similarly is understood to have authority in relation to his country, limited by supernatural forces of which he must be constantly mindful. An owner then has the right to do what he will in his own country, but always subject to the rules that are believed to be derived from the Dreaming. Such rules invariably imply the exercise of a duty and duty implies a constraint. One part of this constraint is that an owner does not operate autonomously in relation to his country. This is because Dreaming is pervasive and not a phenomenon exclusive to his country. What he may do is constrained by the perceived impact his actions might have on the Dreaming manifest in other countries. He is also constrained by the intimate interests others may have in the Dreamings of his country.
74 Under the heading “Access Rights” the report discussed the movement of members of the appellant community from one country into another. There was evidence that such movement was free and did not require permission subject to constraints applicable to women who had to ensure that they did not, in moving into a country other than their own, contravene any secret ritual business. There was evidence of a courtesy practice whereby a person from one country would let the senior owners of another country know of his or her entry upon that country even if only after the event. But, according to the anthropologists:
Those who are not members of the community should and, so we were told, do ask first before doing any of these things, fearing danger from the countryside and lacking knowledge of the correct manner of speaking to the spiritual powers within the land.
The reference to those who were not members of the community meant persons outside the appellant community and thereby outside the native title claim group.
75 At [7.6] of the report the anthropologists wrote:
In our view the right to use the resources of the application area would appear to be the prerogative of all members of the applicant community. However, this fact is tempered by a spiritual reality which is ever-present in the applicants’ minds. This helps to explain why some people may be reluctant to venture too far into country without the guidance of others whose seniority and command of the knowledge of spirituality is regarded as an important safeguard. For strangers, such guidance and protection is essential. Its requirement means that asking permission may be irrelevant. To go somewhere unknown (that is, outside or beyond your known country) is to court disaster from the natural and spiritual world. It is not so much a question of asking permission, but of seeking guidance. Conversely, it is not a matter of trespass but of transgression, where the consequences of transgression are dire in the extreme.
76 At [7.10] the theme was revisited:
Rights to use a country and its resources are then founded upon an ideology that facilitates the exercise of rights within the country by owners. Strangers are precluded from both entering and using a country because to do so places them in mortal peril. The owner of a country, having the requisite knowledge to use a country can licence strangers to share in its resources and then has a duty to ensure their protection. According to this system, rights to country rest with country owners and are subject to control exercised by those owners.
77 Under the heading “Duty to protect people” the report continued in similar vein (at [7.17]):
A land owner has a duty to ensure the safety of all those who visit his or her country. This means that strangers (mayikari) must be inducted into the country, so that the spirituality of the country will do them no harm. The strangers also have a duty to pay proper attention to the yakpalimululu and follow his or her directions, so as to avoid the potent spiritual danger of the country, which must be learned about and properly understood. Strangers are inducted into country by a senior country owner by means of a short ritual that involves wetting the head of the stranger with water from a creek or pool in the country. This ritual is called mulyarp. Water is taken with the palm of the hand and the head is wetted.
78 In the “Conclusion” part of the report the anthropologists wrote (at [9.5]):
The ways in which the applicants consider themselves to be owners of areas of country (which includes, but is not limited to) the application area, furnishes them with rights to that country. The exercise of these rights is observable in practice and includes access rights, the right to control the access of others, rights to the resources of the country, rights to the intellectual property associated with the country and the assumption of roles in ritual. Exercise of these rights is hedged round with rules and requirements, which are considered to be imbedded within the applicants’ culture. This includes certain duties with respect to the land which we have set out. Consistent with these understandings rights and duties are exercised by members of the applicant community in relation to their land, in differing ways, depending on their qualifications and standing in the community.
79 The evidence of the Aboriginal witnesses relevant to exclusivity was canvassed in some detail at the hearing of the appeal. It is helpful to refer to each of the witnesses and their evidence on the point.
1. Alan Griffiths
80 In his written statement which was received in evidence, Mr Griffiths said (at ):
When I was about ten or eleven years old my kakung taught me how to head wet a stranger. It’s a protection from the dreaming. The head wetting makes sure that you don’t get hurt. When you head wet you point out all the dangerous areas in the country. I learnt that when I was on holiday time. I had my water put on my head when I was a child. Then I would go back to VRD to live with my stepfather while he was working. I always came back to Timber Creek on my holidays. I do the head wetting ceremony to new people. I don’t make this up; it’s law from the dreamtime. The head wetting is known as Mulyarp. I’m the right person to do that head wetting. [Mr Lewis], Josie and me can do the head wetting because its our country. All family can do the head wetting, maybe someone who’s been here a long time. Family alright. Jerry Jones can do the head wetting. Mayikari means stranger and they have to come and talk to me when they’re in this country. Sometimes people break this law but that’s still the law anyway.
And at :
I can camp on country. I can do more than just roll out the swag. I can shoot kangaroo anytime. I can hunt goanna and I can fish. I can also burn off country any time. I don’t have to ask anyone to do any of that on my country. I can show strangers around and I can show them where the dangerous places are. And I can show them the evil places or the mowya, poison places. The old fellow, my mother’s father told me that. If a stranger comes and they do the wrong thing then I tell them to go away. The ground belongs to me even if someone else builds a house on it.
Ray Harrington asked me if he could live on the country where he is. I said that was okay. Larry Johns also asked me if he can have a place near the billabong. They gotta ask me if they want to live on Makalamayi.
A particular incident of exclusion was described (at ):
There was a fellow who was operating a tourist business up on the ridge here (near Site 11) and he was playing the didgeridoo. That was about seven or eight years ago. We, (Jerry and me) stopped that fellow cause Traditional Owners said that’s our country and you can’t do that so we kick that gardia out. Jerry told me about it and we made sure he got kicked off. [sic]
The word “gardia” means white man.
81 Mr Griffiths referred to some specific incidents. He said that the army had wanted to build a bridge over the Victoria River “… in a way that would be bad for the dreaming”. The original plan was for it to be northwest, opposite the dingo dreaming. He told them that they would have to change it to go in a different direction. The army acceded to his suggestion and built the bridge a little way away from the dreaming site. He also warned them against removing any of the top of the hill near the site when constructing a road to the bridge. That was because it would interfere with the dingo dreaming. Again, the army acquiesced. He said(at ):
Everyone asks me because they know I’m the traditional owner (yakpalimululu) for this country. The Army did the right thing by asking me. I talked to other people about the bridge. I talked to Wantawul and Yanturi and Wunjaiyi and all the big five mob. That mob they split up the money that the Army paid to build that bridge because we talk same language, we follow the dreamings.
Another event involved a mining company exploring for diamonds at a site called Japajani, which was associated with the dreaming story of two fighting snakes. Mr Griffiths said he told people generally not to touch the particular hill as they could die. He said (at ):
When a mining company wanted to look for diamonds (about four or five years ago) near that place I told them they had to stay away from that hill. I talked to the mining company and the NLC and they listened to me and didn’t go there. That was a few years ago.
82 In his oral evidence-in-chief which commenced at a site associated with the dingo dreaming, Mr Griffiths performed a head wetting ceremony on the trial judge and other persons present who had come to the site for the first time. He pointed out a bridge, which was not the army bridge referred to in his written evidence. He said that a man involved in building the bridge later died in a car accident. He said:
We didn’t – we didn’t want him to build that bridge, because Aboriginal – all spoiled now. You can see it there, all the grass, leaves, trees, everything growing. We can’t even see our Dingo. Dingo underwater now. [sic]
83 At another site, which the Court visited on the same day, gravel had been excavated. Mr Griffiths had not known anything about the excavation before it occurred. He had been telephoned by Jerry Jones whom he described as “managing Timber Creek for me”. He said:
He ring me up when he seen this gravel been take away from here, and I told him to stop it. [sic]
He said in his evidence that he did not want any more gravel taken because the excavation was cutting the dingo’s body. He was asked who should be asked before any gravel was taken. He said it was him. He would then discuss it with other people in the group.
84 At the location of the proposed diamond mine exploration he said:
Yes, I told that miner not going to get up, touch this hill here.
I stopped him.
He gave oral evidence about the army bridge:
Alan Griffiths: Well, really, you know, I didn’t want to put a bridge across because they’re cutting the bodies for Barramundi walking across, you know.
Counsel: Yes. So – and that decision that you did make in the end about letting them have this bridge, was that decision just by you or did you get other people?
Alan Griffiths: Oh, well, I tried to but lots of people want the money.
Counsel: So, who did you include in the – who did you include in the mob that you gave that money to?
Alan Griffiths: Well, all – all my mob, see? Well, you know, if we let the bridge goes, then we’ll get the money and I said, “Well, we’ll do that.” [sic]
He was asked who was the mob that he let the money go to and he said:
Well, all the Timber Creek mob and my mob.
2. Jerry Jones
85 Jerry Jones gave written and oral evidence. He said (at ):
Strangers have to ask me if they want to go to special places on country. They can ask Josie too. If I’m not here then they cannot go to special places unless they ask someone. When I go to special places on country I call out names and open the place up. I call out to the dreaming and open the place up and ask them to give me some fish. If you don’t sing out then its dangerous, especially for strangers. A new person or stranger is called Mayikari. If a stranger come to Makalamayi then you have to stop them and they got to listen to you. They got to listen and understand the rules about where to go. When a stranger comes to country we have to water their head “mulyarp” otherwise that Aboriginal rule broken. I can water the head. [sic]
86 Jerry Jones was cross-examined by counsel for AFANT who focussed on the use of the creek. He was asked whether white fellows that lived in the town came into the area very much to catch small fish and the cherrapin (whitebait). Mr Jones said they didn’t like them coming in because the road they had made was pretty rough. Asked about further up the creek towards the township, he said:
Well, they’re getting a few there but I mean I seen a few trap there to get cherrapin but I pull it down and I threw one part of it down. [sic]
Mr Johnson: Okay. So, it causes a problem for the ---
Jerry Jones: For Aboriginal people.
Mr Johnson: --- Aboriginal people ---
Jerry Jones: Yes.
Mr Johnson: --- and for white people to go into those areas does it?
Jerry Jones: Yes.
Mr Johnson: And why is that?
Jerry Jones: Well, because look, you can’t just walk into any European’s little block of land and do what you want to do. And why they go onto Aboriginal land and do what they want to do?
Mr Johnson: But you know that some of them have been doing it for 30 and 40 years?
Jerry Jones: Yes, I caught him. I got a few of them because I got a net off and then threw it.
87 In cross-examination by counsel for the Northern Territory Mr Jones said that:
Jerry Jones: We water everyones in the head.
Ms Webb: Yes.
Jerry Jones: Because when you get a change of people that’s not belong to this country, he’s destroy the water or he destroy a lot of country, he’s not – he’s not right people and you got to have a people that belong to this – and Ngaliwuru people.
Jerry Jones also referred to the gravel incident.
3. Josie Jones
88 The learned primary judge described Josie Jones as an impressive witness. In her written evidence she said (at  and ):
If someone wants to build on Makalamayi they have to ask. They can’t just ask me they have to ask Griffo (Alan Griffiths), [Mr] Lewis, me and Jerry. We have to have a meeting to make a decision with Ngaliwurru people. If Griffo is not around then we ring him up and he comes over. Makalamayi country is still Griffo’s even if he is not living in Timber Creek. Its ok to live away from your country, its still your country, I can’t change that.
If something happens on Yanturi country then they have to come and ask me first with my mob. If a stranger comes to this country then they have to come and talk to me or [Mr] Lewis if they want to come to Yanturi. They also can talk to Betty Smiler (C3), Margaret (C3), Frank (Lewis C3) or Eileen (Smiler C1). If its my father’s mother country then I can give permission if no one else is around but first they should ask those who have kakung country. If the stranger wanted to go to Wantawul country then they should go and see Roy Harrington (D3) or Doris Paddy (D3) first because they are the right ones for that country. I would say to that stranger: “talk to them mob first but if they are not around then come back and see me and maybe its okay depending on where you want to go.” If someone goes onto country without asking they might go to the wrong place and do the wrong thing and then they will get sick. I don’t punish them but when they get sick we go and tell them that they are sick because they did not speak to the right traditional owners for that country to find out where they could go. I was taught this by the people listed in paragraph 4.
And further (at ):
We hunt goanna, bush turkey, kangaroo and we collect bush yam, sugarbag, water lilies and fruit off the trees like fig. We can go fishing at Timber Creek at anytime we don’t have to ask anyone. If gardia (white person) want to go on the land they should ask us first so that they know the important sites.
She gave similar oral evidence. And in cross-examination she confirmed that if somebody went into her country without getting permission that person would get sick. The sickness would be caused by the spirits of the dreaming. The cross-examination went on:
Mr Johnson: Okay. Is the – does the law say that there’s any responsibility on the old people to do anything actually to punish those people if they go into country without getting permission?
Josie Jones: Yes, they have to punish them, you know, people going in there without asking them elder people. They used to punish them.
Mr Johnson: But is it – so some people have to punish them and some – but you feel you don’t have to punish them; it’s just the spirits do that?
Josie Jones: The spirit, yes.
4. Mr Lewis (so called because he is now deceased)
89 In his written evidence Mr Lewis said (at ):
If a stranger comes to Yanturi then they have to ask me if they want to camp. Alan does not have to ask.
And further (at ):
I can fish and hunt on Yanturi. I don’t have to ask anyone. Strangers have to ask me if they want to fish there. That is how you look after country by visiting country, fishing there, walking there and camping there. I hunt for goanna, turtle on Yanturi and catch barra, catfish and all sorts of fish all up the river.
5. Doris Paddy
90 This witness said in her written evidence (at ):
If a stranger comes to this country then they have to ask me if they want to go on Wantawul. They can ask me. If they don’t ask then the country might finish them. There are areas in Wantawul where you cannot not go, Old Bullita Paddy taught me the dangerous areas on Wantawul and if you go to those areas then you will die. [sic]
6. Roy Harrington
91 In his written evidence Mr Harrington said (at ):
My country is Wantawul through my kakung, my father Bullita Paddy and his father. I am a yakpalimululu for Wantawul. …
And further (at  and ):
If there is something that is going to happen about my country then they have to talk to me. If you want to build a bridge on our country you got to ask the elders. For Timber Creek you have to ask Darby’s mob (B), Alan Griffiths, [Mr] Lewis, William Gulwin, Larry (Johns) and me. We make a decision through family. We got to protect our dreaming. I learnt these things through my father and grandfather. I teach my kids now.
If a stranger comes to country then we got to introduce that stranger to country. If the stranger wants to fish on country then we got to head wet that stranger.
7. William Gulwin
92 Mr Gulwin said in his written evidence (at  – :
My father said to me that I have to look after Wantawul country. I can talk for that country. If you want to ask people about the country you have to find the right bloke for that country. My father taught me this. I now teach my kids.
I can also talk for Makalamayi country if no one is around. I can talk because my uncle, Alan Griffiths takes Makalamayi country through his mother’s father. If Alan Griffiths and Jerry Jones are not around then I can speak for Makalamayi. I know the dangerous places around there because my uncle, Alan Griffiths taught me the dangerous places every Christmas. I have visited Timber Creek during the wet season when I was not working which was around Christmas time since I was a young boy.
I can head wet people who come to Makalamayi if no one is around. I can call out to the spirits. I can do it at Wantawul because that is my country. I can call out in Nungali/Ngaliwurru language. The caterpillar dreaming speak Nungali and Ngaliwurru and that is who you call out to when you are on Wantawul. My father taught me that way of calling out. If you don’t call out then you get sick. If a stranger comes to country then the dreaming does not know him and he will get sick unless we head wet him for country.
And then (at ):
When they built the bridge over the Victoria River I received compensation for that. My children received money from the building of the bridge as well. That’s because I am for Wantawul. I came to Timber Creek when the bridge was being discussed and I said it was OK to build the bridge. I supported the others.
He also referred to a meeting about the diamond mine and said (at ):
… Griffo said no to building that mine too close to the hill (site 18), because of moiya, poison in that country from the snakes.
8. Georgie Jones
93 In Georgie Jones’ written evidence the following appeared (at  – ):
I can talk for Wunjaiyi with Sammy, Eddie, Darryl and my two sisters (cousins). A stranger should ask me or Sammy Darby to visit Wunjaiyi. If an Aboriginal person not ask us then he will get into trouble.
I water the head of a stranger, I can do that for Wunjaiyi. I can show new people around. My grandmother (Dinah) and Old Darby taught me that way. You have to talk in language when you put water on the head. You put water on the head so that the spirits welcome you. If you put water on the head then the stranger won’t get sick. Water on the head means you are okay and clear then for country. I can call out for country, I call out in Jamijung for Wanimyn. I ask the spirits to give me room to come through. My father taught me that.
I learn about country from a big mob, from Old Darby (B), from my brother Jerry (Jones) for Wanimyn. I go fishing for Wunjaiyi country. I catch catfish and barra in the Victoria River and I hunt for goanna.
9. Deborah Jones
94 Deborah Jones said in her written evidence (at  – ):
I have two girls, Susan Ijuanmalan two years and Tarikka Yirala three years. My son Devin is 12 years old, his Aboriginal name is Purinjit. Kids got to take father’s side like me I take father’s side but still have to look after mother’s country. I can do other things on mother’s country. I can say yes in certain areas, I can say yes or no if no elders around.
I can do head wet: I did my husband and his family, I done it in my mother’s country. I did it at barra dreaming (Site 64) place, “I have to water you mob, wet your head to protect at Yanturi rockhole”. If stranger go there they might take away water, stranger got to get permission and take me or any of my family or Darby or Griffo with them, can’t go by themselves. Spirit might get jealous, and they might get hurt.
10. Violet Paliti
95 Violet Paliti said in her written evidence (at  – ):
If a stranger come to my country, Maiyalaniwung country, then they have to talk to me or Nida, we are the boss for that country. I also get Jerry’s mob to help me look after the country too because sometimes I cannot get out there to look after it and Jerry’s mob can help.
When I was a young girl I saw that Centipede dreaming out there (Site 42) I got told not to touch that place. I got told if I touch that stone that dreaming then a big mob of centipede would come. Lamparangana told me that, not to touch that centipede.
11. Mrs Smiler
96 Mrs Smiler (now deceased and referred to by that pseudonym) was Alan Griffiths’ half sister. She said in her written statement of evidence(at ):
Because Makalamayi is my country I can stay here. My kids can stay here. I can stay here all day and no one can stop me from coming to Makalamayi. I can’t do that like somewhere in Katherine, I got to ask the boss for the country if I can stay there. That is blackfella law. I don’t have to ask anyone to come to Timber Creek, but they might have to ask me. That depends if Alan is not around.
12. Christopher Griffiths
97 Christopher Griffiths is a son of Alan Griffiths. In his evidence he said (at ):
I have the same rights as my father in Timber Creek. I can fish there and camp, collect bush tucker. If someone asked me if they want to build on my father’s country then I would have to say to them “Go and ask the old people.” They would have to ask my dad (Alan Griffiths), Josie (Jones C2), [Mr] Lewis (C2) and the other traditional owners. They are the bosses, I can’t speak for country yet because I am not the boss. I learnt that at ceremony time. If a stranger comes to country then he needs to have his head wet so that he does not get sick. My dad taught me that.
13. Lorraine Jones
98 In her written statement, Ms Jones said (at ):
I have got certain powers over country but controlled where I use those powers. I make sure no one damage country. Like dangerous place, Centipede dreaming (Site 42), dog dreaming (Site 32), I have to look after it. If someone does something wrong it can be dangerous.
14. Sammy Darby
99 In Sammy Darby’s written statement he said (at  – ):
On country I can do what I want. I am a Traditional Owner – yakpalimululu. I can go hunting, get bush tucker, go fishing, make boomerang.
There is red ochre that my old man told me not to touch. If Gardia (white person) wants to take that ochre I will take that man to court, stalk him. I got rights, tradition there.
I ask Violet (Paliti E), I tell her if I go to Gilwi, I let her know. When we come back from there I tell her if someone has damaged a site. The rule for aboriginal people is that if you use another man’s dreaming you make sure you ask the Traditional Owner. I learnt that from my father.
You get country through your Kakung first. The eldest has the right to speak. No-one has a right to put them out. If there are no sons then daughter takes over.
The primary judge’s treatment of evidence relevant to exclusivity
100 Each of the Aboriginal witnesses was accepted as a witness of the truth. The learned primary judge in his general overview of the evidence given on behalf of the appellants said (at ):
It is important to observe, at the outset, that neither the Northern Territory nor AFANT mounted any real challenge to the credibility of the witnesses called on site at Timber Creek on behalf of the claimants. Some of those witnesses were cross-examined on minor matters of detail. Others were questioned with a view to eliciting material thought likely to assist the respondents when they later came to deal with the anthropological evidence.
101 His Honour reviewed the aspects of the anthropologists’ report relevant to access and the duty to protect visitors (at -). At  he set out the entire Conclusion section in full including [9.5]. He then listed what he described as “the key points that arose out of this summary” (at ). None of the key points so identified related to the control of access to country by strangers. That is no doubt because the principal question on which his Honour’s attention was focussed at that point in the reasons was whether there had been a discontinuity, since sovereignty, in the observance of traditional laws and customs by a shift from patrilineal to cognatic descent. This was the issue joined between Dr Palmer and Ms Asche on the one hand, and Professor Sansom on the other. As noted earlier, his Honour preferred the conclusions of Dr Palmer and Ms Asche on that critical matter.
102 When it came to considering the content of the appellants’ native title rights and interests, his Honour said it would “often be difficult” to determine whether native title rights and interests were to be regarded as “exclusive” or “non-exclusive”. He said, with respect, correctly (at ):
At common law, the nature and extent of native title is essentially a question of fact to be determined from such evidence as is available regarding the traditional laws and customs associated with the claimants. Exactly the same is true under the NT Act.
103 Having found that the appellants had met the requirements of s 223(1) of the NT Act, his Honour had to determine whether the incidents of the native title rights and interests that had been demonstrated were “exclusive”. He put it thus (at ):
In other words, have the claimants established that they are entitled, as they contend, “to possess, occupy, use and enjoy the area claimed to the exclusion of all others” ? A related question is whether they have established, as they contend, that they have the right to control “the access of others to the application area”, and “the use and enjoyment of others of the resources of the application area”.
[Emphasis in original]
At  he said:
In some circumstances, native title will be found to be “exclusive”. In such cases, the “bundle of rights and interests” that make up native title may be expressed as including “a right to possession, occupation, use, and enjoyment of the land or waters to the exclusion of all others”.
[Emphasis in original]
He listed examples of more limited forms of native title rights and interests which were not exclusive. He said (at ):
Rights of this character, expressed in this way, seem not to be relevantly “exclusive”. They can, however, be enforced in order to prevent others from infringing them. They may also confer upon their holders a limited entitlement to control access to the land or waters in question. That limited entitlement exists essentially only for the purpose of ensuring that the primary right can be properly exercised. Such rights fall short of conferring what would normally be described as “ownership” of the land, and perhaps also any proprietary interest akin thereto.
His Honour made the distinction drawn by Brennan J between proprietary and usufructuary rights (at ), which was discussed earlier in these reasons.
104 The indigenous witnesses designated as “yakpalimululu”, someone who would deny others access to certain foraging areas. His Honour pointed out that Josie Jones had said that if someone wanted to build in Makalamayi “they would have to ask permission”. If a white person wished to go on the land that person would be expected to ask permission first. The purpose of the request would be to enable important sites to be identified presumably so that they might be protected. He observed that Mrs Jones acknowledged that she had never told anyone not to fish in the waters of Timber Creek or the Victoria River. Had she been asked, she would have pointed out to them which sites were sacred and which were dangerous.
105 His Honour referred to the evidence of Mr Harrington about those who had to be consulted in relation to any activities at Timber Creek. He noted that Jerry Jones had told Dr Palmer and Ms Asche that he regarded himself as entitled to fish, camp, hunt, take ochre and induct strangers. Jerry Jones’ evidence was that permission to enter the country was irrelevant because in practice no indigenous person would wander about on the land without the guidance of a member of the community.
106 As to the anthropological material, his Honour was brief (at ):
There are scattered references in some of the anthropological material which hint at the need to obtain permission before going onto the land. However, in my view, these few references do not justify a finding that the rights and interests of the claimants operate “to the exclusion of all others”. Rather, they suggest that there is an ingrained belief on the part of the claimants that those who come to Timber Creek will, without anything having to be said, respect the claimants’ “rights to country”. It is almost as if “permission” will be sought as a matter of courtesy, or form, because this is expected when a stranger passes through someone else’s land. If for some reason permission is not sought, then guidance at least will be requested.
The Northern Territory’s arguments on exclusivity
107 The Northern Territory characterised the appellants’ argument on factual error as based upon four “events” each of which involved a land use proposal that could have damaged particular sacred sites. The Northern Territory submitted that these events were not evidence of an exclusive native title but rather indicated a native title right “to have access to, maintain and protect sites of significance on the determination area” as found by the learned primary judge. Counsel referred to and supported the conclusion of his Honour at  that rights of the kind evidenced by these events were not relevantly exclusive. The expectation that a newcomer to the “country” would seek permission was said to be grounded in the desire to protect sites of significance and the reciprocal desire to protect the safety of the newcomer.
The Northern Territory’s argument on exclusivity under its further notice of contention
108 The alternative argument raised by the Northern Territory was reflected in the grounds of the Notice of Further Contention which was filed at the hearing of the appeal on the basis that the Court would reserve on the question whether to entertain it.
109 Counsel for the Northern Territory submitted that the native title claim group identified in the amended native title determination application did not include a group known as the Kuwang who had been identified in evidence as traditional owners of Makalamayi. This group was referred to in the report of the Aboriginal Land Commissioner in the Ngaliwurru/Nungali (Fitzroy Pastoral Lease) and Victoria River (Bed and Banks) Claims published in 1993. Paragraph 4.4 of that report stated, inter alia:
Country F, Kuwang country. This country is associated primarily with the western part of the Stokes Range, but extends into the land the subject of the claim. It overlaps with Wanimiyn-Yiritjpinti country in the region of Red Bull Yard, with Mayalaniwung country to the west, in the region of Nariyak, otherwise known as Bardia or Bardi Yard, and with Wunjayi country in the vicinity of Pulumpulini.
In referring to the Timber Creek Land Claim Report the learned primary judge said (at ):
The last of the sub-groups was sub-group F. The father country for this sub-group was Kuwang, better known as Stokes Range. It lay well to the east and south of the claim area. Three patrilineal members of that sub-group spoke during the hearing. They were Big Mick, Little Mick and Bardi. They were all the sons of Big Wally. The Commissioner described Big Mick’s knowledge of the sites and mythology, not only of the claim area but of the entire region, as “unsurpassed”.
110 Counsel also referred to the report on the Stokes Range Land Claim, published in 1990. There were three claimant groups identified in that claim. Group 1 was the Kuwang, group 2 the Wanimiyn-Yiritjpinti and group 3, the Mayalaniwung. The members were said in the report to have common spiritual affiliations to, and primary spiritual responsibility for, sites of significance on three corresponding countries within the land claimed. In [4.5.3] of the report Kuwang country was identified as the “rugged section of the western half of the Stokes Range”. All members of the group were found to be direct descendants of Big Wally Wangmangmatj. His children were Big Mick Kankinang and Bardi Jalokari together with their deceased siblings Judy and Little Mick. This report was mentioned in his Honour’s reasons at  to . His Honour referred to the Land Commissioner’s finding of the three claimant groups, their common spiritual affiliations to and responsibility for sites of significance and their secondary responsibilities for, and affiliations to, the whole of the area.
111 Counsel referred to other Ngaliwurru groups identified in close vicinity to the claim area, Mulukurr referred to in the Kidman Springs/Jasper Gorge Land Claim Report and Lubayi.
112 Counsel submitted that Kuwang and Wanimiyn/Yiritjpinti were the two most relevant groups because they were said to have primary spiritual responsibilities to the land and to have rights to forage over it. Kuwang was said to be particularly relevant because it was part of the group said to be traditional Aboriginal owners of an area including the Makalamayi estate. Counsel drew the Court’s attention to these other Ngaliwurru groups to disabuse the Court of any notion that the native title claimant group comprised the whole of a recognisable community of people under whose traditional laws and customs the relevant rights and interests in the area were created and acknowledged. Questioned by the Court, counsel agreed that her proposition was that there was evidence before the primary judge of people not included in the claim group who had the same rights as those in the claim group. These matters had not been raised in the written submissions filed prior to the hearing of the appeal. The thrust of the argument seemed to be that the existence of groups, particularly the Kuwang, who were not included in the native title claim group precluded any determination of exclusivity in relation to the native title rights and interests determined for the claim group.
The appellants’ response to the further notice of contention
113 Counsel for the appellants referred the Court to the native title determination applications. The first of those applications identified the native title claim group as “The Ngaliwurru and Nungali peoples”. These were said to be comprised of “… all persons descended from the nine apical Ngaliwurru persons identified in paragraph 5”. In  of the application it was stated that members of the Ngaliwurru and Nungali peoples had been successful claimants in the Timber Creek Land Claim and the Ngaliwurru/Nungali (Fitzroy Pastoral Lease) Land Claim. The land the subject of those claims respectively adjoins and is near to the town of Timber Creek.
114 The Timber Creek Land Claim covered five estate groups comprising the native title claim group as propounded in these proceedings. It also covered the Kuwang group. The Fitzroy Land Claim covered all seven estate groups. Initially the applications made in these proceedings in 1999 and 2000 were on behalf of all seven estate groups. However their coverage was contracted. In points of claim filed in respect of all applications the native title claim group was defined by reference to the five estate groups only. Kuwang and Wanimiyn were not included. This followed the anthropological report from Dr Palmer and Ms Asche. It formed the basis upon which the applications went to trial. It, together with the amended application of 17 March 2005, which was treated as the template for all of the applications, formed the basis upon which the applications went to trial. The points of response which were filed by the Northern Territory did not contend for any larger group.
115 Paragraph 3.1 of the points of claim was in the following terms:
The applicant group comprises a set of groups made up of the members of five yakpali or countries (“the applicant group”).
The five countries are listed. Details of the relations between the countries are given in chapter 6 of the Report.
(1) Country A is Makalamayi
(2) Country B is Wunjaiyi
(3) Country C is Yanturi
(4) Country D is Wantawul
(5) Country E is Maiyalaniwung.
116 Paragraph 3.3 stated:
(a) applicant is a member of one or other of the country groups making up the applicant group;
(b) country group is a group of persons the membership of which is determined by cognatic descent.
Details of the applicants’ membership of the country groups are given in Chapter 6 and Appendix F to the Report.
Details of the basis upon which country membership is determined are given in chapter 5 of the Report.
117 At [4.1] the points of claim stated:
The rights and interests that are possessed by the applicants under the traditional laws acknowledged and traditional customs observed by them include:
(a) the right to possess, occupy, use and enjoy the application area to the exclusion of others; ...
118 The points of response which were filed by the Northern Territory did not contend for any larger group nor dispute the exclusivity claim on the basis of any concurrent interest by another group. In  of its points of response it stated:
For the reason set out in paragraph 5 hereof the Territory does not plead to the facts and matters set out in paragraph 3.1 and does not admit (and is not required to plead to the matters set out in) the particulars thereof. Further, the Territory says the reference to an entire Chapter of the Applicants’ Experts’ Report contained in the Particulars to paragraph 3.1 is so vague as to also be embarrassing.
Paragraph 5 of the response had complained of [1.1(4)] of the points of claim that it was “embarrassing as being vague”. In answer to [3.3] the Territory said (at ):
The Territory admits the facts and matters set out in paragraph 3.3 of the Points of Claim but does not admit that “country groups” so constructed are “traditional” (in the relevant sense).
In answer to [4.1] setting out the native title rights and interests claimed, the points of response stated (at ):
The Territory denies that the rights and interests described in paragraph 4.1 are “traditional” (in the relevant sense) but otherwise does not plead to the facts and matters set out in that paragraph.
119 The anthropological report of Dr Palmer and Ms Asche expressly identified the “members of the five country groups as together making up the applicant community” (at [5.8]). At [5.9] the anthropologists said that the country name for the area around the Timber Creek townsite is usually Makalamayi after a significant site at the junction of Timber Creek and the Victoria River. It is also often referred to as Lamparangana’s country. Those with whom the anthropologists worked at Timber Creek, and elsewhere, had listed four other countries in addition to Makalamayi which the anthropologists said they considered relevant to their inquiry (at [5.11]).
120 In [5.12] the anthropologists said that the countries to which they referred had been sketched on to a map by Bauman and Stead. The map showed some overlap between countries. A copy was handed up at the appeal hearing. They said:
Maurice’s characterisation of each country, drawn from the evidence given in the [Timber Creek Land Claim] hearings, is broadly consistent with that set out by us and developed from our data collected nearly twenty years after the land claim process was completed. A sixth country, Kuwang (country F) was also evident in the Timber Creek Land Claim … and its exclusion from this discussion will be addressed below.
121 At [5.26] of the report the anthropologists noted that in the Timber Creek Land Claim two men, Big Mick and Little Mick, were “notable participants”. Their country was the Kuwang country “… which is Stokes Range, well to the south east of Timber Creek”. Commissioner Maurice observed that Big Mick’s knowledge of the sites and mythology of the claim area and indeed the entire region was unsurpassed. Members of the Kuwang country group were included as traditional owners of the Timber Creek claim although no evidence was led on Kuwang country. At [5.27] the anthropologists said:
Both Micks are now dead. Big Mick’s son, Peter Mick, is not recognised as having the extensive knowledge of countries that his father had. It was said he and his brothers ‘don’t say much’. This is not a criticism. Younger people are expected to hold back and accord with protocols of some self-effacement. As a consequence it was agreed by him and others that he did not ‘speak for’ Timber Creek country. On another occasions, [sic] Alan told us that Peter Mick was ‘too far’ from Timber Creek to be relevant. By this he meant that the compass of his knowledge was too limited to have a bearing on Makalamayi.
122 Counsel for the appellants put it that the reason that the claim was formulated without inclusion of the Kuwang country was that the appellants did not consider that the Kuwang people could speak for the country the subject of the application. Significantly the learned primary judge made no reference to any contention that the Kuwang people could be said to have had native title rights and interests concurrently in the area the subject of the application.
123 Paragraphs 114 and 115 of the Northern Territory’s written closing submissions were relied upon to support the proposition that the existence of the Kuwang people was relied upon by the Northern Territory at trial in answer to the exclusivity claim. These paragraphs read:
114. Despite assertions in evidence of a right to exclude others, the Applicants have led no evidence of an exclusivity sanctioned by traditional law. Rather, the very “corporate” nature of the relationship to land would indicate a custom of free and public access to the application area.
115. This indication is supported by the evidence that the application area was one where many peoples from many different parts of the Territory (and beyond) met and stayed. The application area was communal ground where Aboriginal people from many areas came and stayed.
In our opinion these paragraphs do not raise the issue which the Northern Territory now seeks to raise in its further notice of contention.
Whether the further notice of contention should be entertained
124 In our opinion it is too late in the day for the Northern Territory to now raise the issues it seeks to raise on the further notice of contention. These were not reflected in its points of defence nor in its closing submissions. The evidence was that the Kuwang people did not speak for the appellants’ country. They were geographically distant from it. The evidence, such as it was, was consistent with the exclusivity asserted by the appellants in respect of their countries. Had the contention been clearly raised at trial by the Northern Territory that the existence of the Kuwang defeated the appellants’ claim to exclusive native title to the land the subject of the application, then the course of the evidence relied upon by the appellants might well have been different. We will not entertain the further notice of contention.
Whether the primary judge erred in not finding exclusivity
125 The evidence of the Aboriginal witnesses, being uncontradicted, together with the relevant elements of the anthropological report in our respectful opinion required the conclusion that the appellants’ possession, use and occupation of their country was exclusive.
126 Counsel for the Northern Territory referred to the need for appellate respect for the advantage of the trial judge: Fox v Percy (2003) 214 CLR 118 at 127 . It was acceptedthat his Honour’s findings did not turn on any view adverse to the credibility of the Aboriginal witnesses or of Dr Palmer and Ms Asche. It may nevertheless be acknowledged that, questions of credibility apart, the trial judge who is immersed in the detail and nuance of the evidence has an advantage when it comes to evaluative judgments based upon it. Counsel cautioned the Court against reliance upon “sterile” transcript references in determining whether the learned primary judge made an error of fact. The Court accepts the need for that caution. We have undertaken a review of the evidence going to exclusivity which has been set out earlier in these reasons. We do not accept that the characterisation of the relevant native title rights as exclusive or non-exclusive does depend upon matters of demeanour or nuance in this case. The evidence outlined above was clear and unequivocal. The question was whether, having been accepted, it required a finding that the relevant rights were exclusive. Our caution about interfering with his Honour’s finding in this respect is mitigated by the evident influence on it of common law classifications of usufructuary and proprietary rights.
127 It is not a necessary condition of the exclusivity of native title rights and interests in land or waters that the native title holders should, in their testimony, frame their claim to exclusivity as some sort of analogue of a proprietary right. In this connection we are concerned that his Honour’s reference to usufructuary and proprietary rights, discussed earlier, may have led him to require some taxonomical threshold to be crossed before a finding of exclusivity could be made. It is not necessary to a finding of exclusivity in possession, use and occupation, that the native title claim group should assert a right to bar entry to their country on the basis that it is “their country”. If control of access to country flows from spiritual necessity because of the harm that “the country” will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive. The relationship to country is essentially a “spiritual affair”. It is also important to bear in mind that traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people. The question of exclusivity depends upon the ability of the appellants effectively to exclude from their country people not of their community. If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have, in our opinion, what the common law will recognise as an exclusive right of possession, use and occupation. The status of the appellants as gatekeepers was reiterated in the evidence of most of the indigenous witnesses and by the anthropological report which was ultimately accepted by his Honour. We would add that it is not necessary to exclusivity that the appellants require permission for entry onto their country on every occasion that a stranger enters provided that the stranger has been properly introduced to the country by them in the first place. Nor is exclusivity negatived by a general practice of permitting access to properly introduced outsiders.
128 In our opinion a proper characterisation of the effectively uncontested factual evidence of the indigenous witnesses and the opinion evidence of the anthropologists whom his Honour accepted, leads to one conclusion and one conclusion only and that is that the appellants, taken as a community, had exclusive possession, use and occupation of the application area. The appeal therefore succeeds on the question of exclusivity.
The cross-appeal – the shift from patrilineal to cognatic descent principles
129 One of the bases of the cross-appeal of the Northern Territory was that, having found that there had been a shift from principles of patrilineal descent to principles of cognatic descent, the primary judge erred in holding that the native title claim group continued to acknowledge and observe traditional laws and customs giving rise to rights and interests in relation to land.
130 The Northern Territory argued that the primary judge “did not enquire whether the change from patrilineal principles of descent to cognatic principles was a permissible adaptation of a traditional rule” in the sense discussed by the High Court in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 (written outline at ). This argument, in our view, involves a misunderstanding of his Honour’s reasons for judgment.
131 Before the primary judge the claimants placed reliance on the expert opinion evidence given on their behalf by Dr Palmer and Ms Asche. The evidence was comprehensively reviewed in his Honour’s reasons for judgment as outlined earlier in these reasons.
132 At [5.13] of their joint report Dr Palmer and Ms Asche stated:
At Timber Creek country is taken by appeal to either matri or patri filiation. [sic] For the applicants, land which belonged to your ancestors may be considered to belong to you. You cannot be regarded as yakpalimululu (an owner) of country in any other way … An adoptive relationship is regarded as equivalent to a consanguineal one, provided the adoption is socially sanctioned. A system whereby land passes through either the male or female lines, is often called by anthropologists, a cognatic system. [footnotes omitted]
133 The report noted that a review of relevant literature suggested a number of questions, namely:
(a) were country groups pre-contact recruited patrilineally?
(b) was there evidence that this was so?
(c) did the change to a cognatic system indicate a fundamental alteration to the manner of recruitment to the country group?
(d) did ‘patrilineal bias’ indicate a preference for claiming patrifiliation founded upon historical principles? [5.18]
134 The report in large measure purported to answer the above questions. It noted that until some twenty or so years ago there was an assumption in the literature that country groups were patrilineally recruited but that later evidence had shown that this may not be so. In particular, evidence concerning land claims in the same general area as Timber Creek suggested that cognatic descent was a common principle by which people expressed filiation to country.
135 The expert opinion of the authors of the report was that patrifiliation was, and remained, an important means whereby people affiliate to country in the Timber Creek area but that the operating principle in relation to gaining rights to country was that of descent – through mother or through father. Mere descent was insufficient; descent must be complemented with knowledge of the country in order that rights to country be realised. They noted that there may have been a shift over time such that the number of patrifiliates has decreased while the number of matrifiliates has increased. However, in their view, the normative system underpinning the acquisition of rights to land had not changed.
136 In the Preamble to the written report that Professor Sansom prepared in response to the report, he neatly crystallised the difference in opinion between him, on the one hand, and Dr Palmer and Ms Asche on the other, on whether, notwithstanding the decrease in the number of patrifiliates and the increase in the number of matrifiliates, the claimants continued to acknowledge and observe traditional laws and customs giving rise to rights and interests in relation to land. At  and  Professor Sansom stated:
… [Dr Palmer and Ms Asche] describe what, for them, is not in any way a shift or change in normative rules. The shift for them is, rather, a shift in the statistical norm which is to say a change in the rate at which matrifiliates rather than patrifiliates have been recruited to land-holding groups over the years … In effect, they deny the possibility that a shift from a normative system based on patriliny to emergent normative system based on cognation has occurred.
Dr Palmer and Ms Asche have not, in general, neglected publications that pertain to the matters of anthropology and ethnography that have a bearing on Tennant Creek. In my own commentary I rely, to a large extent, on the very materials that are listed in the bibliography to the Palmer and Asche report though I have turned up a few additional (and important) sources. My assessment of those records that are common to my report and to that of Dr Palmer and Ms Asche is at variance with the assessment of those materials that the two experts supply. The additional sources I have found support my view to the contrary. I shall write to support my opinion that the available material indicates that there have been significant shifts and changes in customary practice and traditions in the region about Timber Creek. [footnotes omitted]
137 Professor Sansom’s report went on to identify two major shifts in customary or traditional practice. The first was a shift from patrilineal inheritance of primary rights in land to a more generously inclusive system based on cognation. The second shift identified by Professor Sansom is the shift from separate language groups being associated with distinct territories to a position where merged language groups have become associated with amalgamated territories. Only the first of the above “major shifts” was relied upon for the purpose of the cross-appeal.
138 Professor Sansom noted in his report that “the notion that there has been a shift from patriliny to cognation at Timber Creek is hardly novel” but had been canvassed at length during the 1985 Timber Creek Land Claim under the Land Rights Act. Commissioner Maurice had concluded that the kinship system at Timber Creek was in a stage of adaptation from patriliny to cognation (Sansom at ). Professor Sansom’s report purported to document the shift to cognation, to offer an explanation to account for the shift and to show that the shift occurred very generally in the Top End.
139 As the above summary of the expert opinions adduced before the primary judge shows, his Honour was required to resolve a conflict of expert anthropological opinion between, on the one hand, Dr Palmer and Ms Asche, and on the other hand, Professor Sansom. It was accepted at trial, and on appeal, that each of the three anthropologists had specialised knowledge based on his or her training, study and experience. It was also accepted that their respective opinions were wholly or substantially based on that knowledge (see s 79 of the Evidence Act 1995 (Cth)). Although Professor Sansom suggested somewhat faintly that Dr Palmer and Ms Asche may not have considered all relevant published literature material, there was no serious challenge to the factual bases of the respective opinions.
140 The primary judge preferred the expert opinion expressed in the report to that expressed by Professor Sansom. His Honour did so for reasons that included the following: ( ff)
(a) Dr Palmer and Ms Asche had had extensive involvement over many years with the claimant group while Professor Sansom had had little direct involvement with those who inhabit the region around Timber Creek;
(b) Dr Palmer speaks Ngaliwurru, the language of the claimant group (hh, ), while Professor Sansom does not;
(c) Dr Palmer and Ms Asche impressed his Honour as highly credible witnesses;
(d) his Honour was troubled by the dichotomy that Professor Sansom perceived between the system of descent that developed in the Western Desert and the system that pertained at Timber Creek;
(e) Professor Sansom, his Honour accepted, accorded undue deference to the early work of Professor Stanner;
(f) Professor Sansom did not justify his reliance on work carried out by him in areas remote from Timber Creek;
(g) Professor Sansom’s largely dismissive treatment of oral tradition was, in his Honour’s view, unjustified; and
(h) Professor Sansom did not give evidence regarding the restricted evidence adduced at trial on which his Honour placed considerable weight.
141 The primary judge accepted the opinion of Dr Palmer and Ms Asche that the operative principle at the time of European settlement in relation to gaining rights to country involved descent – through mother or through father. His Honour also accepted the opinion of Dr Palmer and Ms Asche that there may have been a shift over time such that the number of patrifiliates has decreased while the number of matrifiliates has increased but the underpinning normative system has not changed (see  above). There was thus no occasion for his Honour to enquire about changed principles of descent. His Honour was satisfied that the relevant principle had not changed – albeit that its present exercise involves increased reliance on matrifiliation at the expense of patrifiliation.
142 The Northern Territory contended, in its outline of submissions, that:
[i]nsofar as his Honour made any findings as to which principle of descent operated at sovereignty … it must be taken to be a patrilineal system, given that his Honour’s finding was that there had been a “shift from a patrilineal system to a cognatic system”.
143 The above contention involves a false dichotomy which reflects amisunderstanding of his Honour’s reasons for judgment. As mentioned in  above the finding of his Honour was that, within the operative principle for gaining rights to country by descent, reliance on patrilineal descent had decreased and reliance on matrilineal descent had increased. His Honour was not satisfied that this increased reliance on one, rather than another, line of descent had so affected the relevant laws and customs, or indeed, the laws and customs of the society generally, that they could no longer be regarded as traditional.
144 Notwithstanding that this is an appeal by way of re-hearing, as discussed above (see )there are “natural limitations” that may render it inappropriate for an appellate court to proceed wholly or substantially on the record (Fox 214 CLR 118; 197 ALR 201 per Gleeson CJ, Gummow and Kirby JJ at ). An appellate court may bedisadvantaged in comparison with the primary judge in respect of the evaluation of the credibility of witnesses, including expert witnesses, and the “feeling” of the case. In this casehis Honour had the advantage of receiving and considering the entirety of the evidence while this Court has been taken, appropriately, to portions only of the evidence. The distinct advantage that a trial judge has over an appeal court in assessing what is the most reliable evidence about the traditional laws and customs of the peoples of an area at the time of European settlement was recognised by the High Court in Yorta Yorta 214 CLR 422 (see partic. Gleeson CJ, Gummow and Hayne JJ at ; Callinan J at ).
145 Having regard to the evidence adduced before the primary judge, we can identify no error affecting his Honour’s consideration of whether the claimants no longer acknowledge and observe traditional laws and customs giving rise to rights and interests in land because they presently gain rights to country in part by descent through either the matrifilial or patrifilial line.
146 For the above reason this is not an appropriate case for consideration of what has become a vexed question in native title law. That question is whether a change from a law or custom at sovereignty of acquiring rights and interests in land and waters by patrilineal descent to a present-day law or custom of acquiring such rights and interests by cognative descent necessarily has the consequence that the rights and interests are not possessed under the traditional laws acknowledged, and the traditional customs observed, by the relevant Aboriginal peoples (see s 223 of the NT Act).
The cross-appeal and notice of contention – s 47B of the NT Act
147 The whole of the claim area was previously subject to pastoral leases. Accordingly, unless s 47B of the NT Act applies, native title was, at least to some extent, extinguished. The primary judge accepted the appellants’ contention that s 47B applied to the claim area other than Lots 16, 22, 33, 35 and 37. It was accordingly unnecessary for his Honour to determine whether such extinguishment would otherwise be total or partial, because s 47B required extinguishment to be disregarded.
148 The Northern Territory’s notice of cross appeal, so far as it relates to s 47B, is as follows:
6. His Honour erred in law in finding that section 47B … applied to the area within the proclaimed boundaries of the Town of Timber Creek, that area being covered by a “proclamation … under which the whole of [sic] part of the land or waters in the area is to be used for public purposes, of [sic] for a particular purpose” within the meaning of section 47B(1)(b)(ii) ….
7. His Honour erred in failing to find that section 47B … did not apply to the area within the proclaimed boundaries of the Town of Timber Creek so that any extinguishment of native title rights and interests by the creation of prior interests could not be disregarded.
149 The Northern Territory’s notice of contention repeats grounds 6 and 7 of its notice of cross appeal, and continues (at ):
On that additional basis the judgment and determination appealed from should be affirmed, insofar as it finds and determines that:
3.1 the native title rights and interests which are held in the determination area are non‑exclusive rights to use and enjoy land and waters; and
3.2 the native title rights and interests which are held in the determination area do not confer possession, occupation, use and enjoyment of the land and waters on the native title holders to the exclusion of all others.
Statutory framework – s 47B of the NT Act
150 So far as relevant to the appeal, s 47B provides as follows:
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not:
(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity … under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose ….
(iii) …; and
(c) when the application is made, one or more members of the native title claim group occupy the area.
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.
(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the creation of any prior interest in relation to the area; or
(ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non‑extinguishment principle applies to the creation of any prior interest in relation to the area.
The proclamation of Timber Creek
151 Section 111(1)(a) of the Ordinance empowered the Governor‑General by proclamation to “constitute and define the boundaries of new … towns”. Sub‑section (3) empowered him by proclamation to “set apart as town lands any Crown land within the boundaries of a town”.
152 In the Australian Government Gazette of 10 June 1975 a proclamation under s 111 of the Ordinance was published, by which the Governor‑General declared:
(a) … that all that portion of Crown Land described in Part 1 of the Schedule hereto shall from the date hereof be constituted a new town named the Town of Timber Creek; and
(b) … that the Crown Lands as described in Part 2 of the Schedule hereto shall be set apart as town lands as from the date hereof.
All that piece of land near Timber Creek in the Northern Territory of Australia containing an area of 2362 hectares more or less; commencing at a point 1500 metres east of the north‑eastern corner of Northern Territory Portion 585; thence south for 1000 metres; thence west for 2000 metres; then north‑west to an eastern boundary of Pastoral Lease 552 (Auvergne); thence north to the centre line of the Victoria River; thence generally north‑easterly, south‑easterly and again north‑easterly by the said centre line to a point north and 130 metres east of the north‑eastern corner of Northern Territory Portion 585; thence south-east to a point north and 1500 metres east of the north‑eastern corner of Northern Territory Portion 585; thence south to the point of commencement.
Crown Land within the new town to be set apart as town lands ….
Then follows a description of the land in the same terms as those in Part 1, save that the words “containing an area of 2362 hectares more or less” are omitted. Thus the whole of the land constituting the new town of Timber Creek was set aside as town lands.
The primary judge’s reasoning
153 The primary judge first examined the Full Court’s decision in Alyawarr 145 FCR 442 which also dealt with a proclamation under s 111 of the Ordinance. His Honour regarded Alyawarr 145 FCR 442 as requiring rejection of the Northern Territory’s submission that the area in question was covered by a proclamation under which the land was to be used for public purposes or for a particular purpose within s 47B(1)(b)(ii). He then held that when the applications before him were made, one or more members of the claim group occupied the claim area for the purposes of s 47B(1)(c). In this connection he adopted what had been said about “occupation” in Hayes v Northern Territory (1999) 97 FCR 32 at 162 to 164.
The decision of the Full Court in Alyawarr
154 At the forefront of the Northern Territory’s case on the cross‑appeal and notice of contention was the submission that we should not follow Alyawarr 145 FCR 442 in so far as it relates to the construction of s 47B(1)(b)(ii). That case concerned Hatches Creek, a 27.12 hectare site set aside for a proposed town in 1953. No town had ever been established there. The Northern Territory submitted in Alyawarr 145 FCR 442 that the constitution of the land as a town fell within both “public purposes” and “a particular purpose”. Speaking of the exclusionary condition in s 47B(1)(b)(ii), the Court said (at ):
The terms of the condition raises two issues. The first is as to the nature of the purposes for which the land is to be used. The second is whether an intention to use the land for those purposes must be shown, as a matter of fact, to exist at the time the native title determination application is made or whether it is to be ascertained by reference to the terms of the proclamation and the legislation under which it is made.
155 The Court then noted that the definition of a townsite and the setting aside of land within the townsite as town lands embraced a variety of potential subsequent uses none of which was defined at the point of proclamation, and that the proclamation enlivened powers to grant leases for a variety of purposes. This was a reference to Divs 4 and 6 of Pt III, and s 112A, of the Ordinance dealing with leases of town lands.
156 At  the Court said:
The purpose of s 47B is beneficial. The qualification on its application in s 47B(1)(b)(ii) is no doubt intended to minimise the impact of native title determination applications on areas set aside by proclamation or otherwise under statutory authority for public or particular purposes. That limitation should not be construed more widely than is necessary to achieve its purpose. A proclamation for a broadly expressed purpose which encompasses a variety of potential but unascertained uses is not a proclamation for a particular purpose. The term “public purposes” may arguably encompass a land use planning purpose which is met by establishing a framework or condition for the allocation of private rights such as the grant of residential or commercial leases in a township. Alternatively, it may be construed as referring to purposes of a public nature such as the creation of reserves for public works or recreation or environmental protection. A narrower construction accords with a comprehensible policy that, in the public interest, prior extinguishment which might obviate public exposure to compensation claims or a future act process should be continued in force. It is not necessary in aid of the narrower construction to define its outer limits here. It is sufficient to say that the mere proclamation of a townsite, which might comprise largely private property holdings by lease or otherwise, does not define public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii).
157 The Court then considered the meaning of the words “is to be used”, and held at  that any intention to use the land for the requisite purpose was to be gleaned from the terms of the proclamation and its constating legislation as an intention to be fixed for the duration of the proclamation, and not as a matter of fact at the time of the application.
158 The Northern Territory contends that Alyawarr 145 FCR 442 is distinguishable for two reasons. The first is that Hatches Creek had never become an established town, whereas Timber Creek is such a town. In Alyawarr 145 FCR 442 at  the Court said:
The definition of a townsite and the setting aside of land within the townsite as “town lands” under the Crown Lands Ordinance embraced a variety of potential subsequent uses none of which was defined at the point of proclamation. The proclamation enlivened powers to grant leases for a variety of purposes.
Our attention was not drawn to any evidence that at the date of the proclamation (10 June 1975) there was an established town of Timber Creek. Even if a town was then in existence, that would not assist the Northern Territory. It would still be the case that the proclamation merely “enlivened power to grant leases for a variety of purposes”. As recorded at , the Alyawarr Court held that whether there is a use for public purposes or for a particular purpose is to be determined at the date of the proclamation. Accordingly we reject the submission that Alyawarr 145 FCR 442 can be distinguished on the ground that by the time of the application Timber Creek was an established town. Had the submission been that Alyawarr 145 FCR 442 is distinguishable because at the date of the proclamation Timber Creek was an established town, and the evidence showed that Timber Creek was such a town, we would have rejected that as well.
159 The second ground of distinction was said to be that in Alyawarr 145 FCR 442 there is no holding concerning the operation of a proclamation that sets apart as town lands Crown land within the boundaries of a town. The proclamation in Alyawarr 145 FCR 442 is set out in part at  of the Full Court’s reasons. It recites the power in the Ordinance to constitute and define the boundaries of new towns, and the power to set apart as town lands any Crown land within the boundaries of a town. It then declares first that the Crown land described in the Schedule is constituted a new town called Hatches Creek, and second that all Crown land within the new town is set apart as town lands. Accordingly, the structure of the proclamation is the same as that of the proclamation here under consideration.
160 The appellants’ counsel conceded that there is no holding in Alyawarr 145 FCR 442 as to the application of the s 47B(1)(b)(ii) exclusion to the exercise of power under s 111(3) to set apart land within the boundaries of a town as town land. We do not consider the concession reflects the true position. It may be that, read in isolation, the words “mere proclamation of a townsite” in the final sentence of the passage set out at  appear to reflect those in s 111(1)(a) – “constitute and define the boundaries of new … towns”. However this appearance is dispelled when the Court’s reasons are read as a whole. The passage from Alyawarr 145 FCR 442 we have set out at  shows that the Court squarely addressed not just the first part of the proclamation but the second as well, so as to hold at  and  that the setting apart of land within a townsite as town lands embraces a variety of potential subsequent uses none of which was defined at the point of proclamation, which merely enlivened powers to grant leases for a variety of purposes, and that this does not define public purposes or a particular purpose. The overall context shows that by “the mere proclamation of a townsite, which might comprise largely private property holdings by lease or otherwise” in , the Court was referring to the Hatches Creek proclamation as a whole. Earlier at  the Court had said much the same thing:
As the Hatches Creek case illustrated, the mere fact that an area was constituted as a town, its boundaries defined and the land within it set apart as town lands did not mean that the land would be used for any purpose, let alone a particular purpose.
Nonetheless, in view of the appellants’ concession, we will proceed on the basis that in Alyawarr 145 FCR 442 there was no binding decision on s 111(3).
161 Sub‑sections (1)(a) and (3) of the Ordinance deal with different topics. Each provides for the making of a proclamation. A subs (1)(a) proclamation constitutes and defines the boundaries of, amongst other things, a new town. The making of such a proclamation does not activate the powers in Div 4 and 6 and s 112A to deal with the land within the town boundaries by lease. That is dependent on the making of a proclamation under subs (3) setting apart as town lands any Crown land within the boundaries of a town. In Alyawarr 145 FCR at  it was said that the power to grant the various kinds of leases contemplated by Div 4 of Pt III was not enlivened “until a proclamation of the kind provided for in s 111(1)(a) or s 111(3) of the Ordinance had been made”. However, reading  as a whole, it is apparent that the “or” in the quoted passage was intended to be “and”. As indicated at , various consequences flowed from Crown land being set apart as town lands. It could be leased for various purposes by public auction (s 67). A lease that had been offered for sale by auction and had not been sold could be allotted by the Administrator to any person who had applied for it, upon payment of the reserve price (s 68). By other provisions the Minister could grant a lease of town lands to a member or former member of the armed forces (s 68A), a person who had a right of pre‑emption under the Mining Ordinance (s 68B), a person who occupied a dwelling house as a tenant of the Commonwealth (s 68C), a pensioner under the Social Services Act (s 68D), the Housing Commission (s 68F) and other classes of persons and for other purposes.
162 The only reason the Northern Territory advanced as to why the second part of the proclamation should involve a different result under s 47B(1)(b)(ii) from the first part was that Alyawarr 145 FCR 442 must be taken to have decided that it is not possible to discern in the first part of the proclamation any intention to use the land constituting the new town. By contrast, it was said, the second part of the proclamation did point to the use of the land for the various purposes for which, under Divisions 4 and 6 and s 112A of the Ordinance, town land could be dealt with. In our view, the second part of the proclamation declaring that the Crown lands in the Schedule be set apart as town lands, does not define public purposes or a particular purpose within s 47B(1)(b)(ii). The reasoning the Court in Alyawarr 145 FCR 442 applied to the first part of the proclamation, namely that a townsite “might comprise largely private property holdings by lease or otherwise”, is applicable to the mere setting apart of Crown land as town lands. The mere setting aside of Crown land as town lands, so that it could thereafter be granted for various purposes and to various classes of person, does not define public purposes or a particular purpose.
163 Accordingly we do not accept the Territory’s submission that in presently relevant respects Alyawarr 145 FCR 442 is distinguishable from the present case. We are obliged to follow Alyawarr 145 FCR 442 unless persuaded that it is plainly wrong: Transurban City Link v Allan (1999) 95 FCR 553 at ‑. Although as indicated at  the Territory initially invited us not to follow Alyawarr 145 FCR 442, it later transpired that it merely wished to preserve its ability to contend before the High Court at a later stage that it was wrongly decided. It was not put to us that Alyawarr 145 FCR 442 was plainly wrong.
164 The parties’ written submissions on s 47B followed essentially the case each had propounded before the primary judge, reflected in what we have said at  to . The Territory’s oral submissions on the cross‑appeal were to the same effect. In oral submissions the appellants’ counsel first proceeded on the same basis. He then, for the first time, submitted that there was a temporal question that had to be addressed that had not been considered in Alyawarr 145 FCR 442. This was that for s 47B(1)(b)(ii) to apply the area in question must not, when the application is made, be covered by a proclamation under which the area is to be used for public purposes or for a particular purpose. The present applications were made between 10 December 1999 and 18 July 2000. According to this submission, the issue to be addressed concerned the effect of the proclamation at those dates rather than at the date it was made.
165 By the time of the native title applications, the Ordinance had been repealed and replaced by the Crown Lands Act 1992 (NT) (the 1992 Act). Section 108 is a transitional provision:
Notwithstanding the repeals effected by section 107, all regulations, by-laws and other instruments of a legislative or administrative character in force immediately before the commencement of this Act shall continue in force, and may be revoked or amended, as if made under the relevant corresponding provisions of this Act or, as the case may be, the Pastoral Land Act 1992, and, with the necessary changes, those provisions, and those regulations, by-laws and other instruments, shall be construed accordingly.
166 The provision of the 1992 Act corresponding to s 111 of the Ordinance is s 95:
(1) The Administrator may, by notice in the Gazette, constitute and define the boundaries of … towns.
(2) The Administrator may, by notice in the Gazette, set apart as town lands any Crown land within the boundaries of a town.
The word “town” is defined in s 3 as:
a town constituted and defined in accordance with this Act or in accordance with a law in force in the Territory before the commencement of this Act.
The expression “town lands” means:
lands set apart as town lands under this Act or of a law in force in the Territory before the commencement of this Act.
167 There appears to be only one section of the 1992 Act in which town lands are mentioned. That is s 44, which deals with subdivision applications in respect of land to which Part 7 of the Planning Act applies. Sub‑section (5) provides:
Section 42(5), (6) and (7) apply to an application under subsection (3) in relation to the subdivision of land (other than town lands).
Section 42 deals with subdivision of leased land. Sub‑sections (5), (6) and (7) enable a lessee, subject to certain conditions, to surrender the lease and obtain in lieu a new lease for each of the subdivided portions of the land.
168 Based on this legislative history the appellants submitted that it was impossible to describe the reference to town lands in s 44(5) as a particular purpose or as defining public purposes within s 47B(1)(b)(ii).
169 It was not suggested that the 1975 proclamation had been revoked or amended. Accordingly the effect of s 108 of the 1992 Act is that
· the proclamation continues in force as if made under s 95 of the 1992 Act, and
· with any necessary changes, is to be “construed accordingly”.
Section 95 of the 1992 Act is in the same form as s 111(1)(a) and (3) of the Ordinance. The 1992 Act contains nothing that requires any changes to the terms of the proclamation. Thus the proclamation is to be “construed accordingly”. It may be that that means, in this case, construed as it stands but in the light of the significance accorded to a proclamation made under s 95 of the 1992 Act. On that approach, one gets the same answer as that we have reached at  and . That would seem to have been the approach adopted by the Full Court in Alyawarr 145 FCR 442 at .
170 Apart from directing our attention to relevant provisions of the 1992 Act, the extent of the assistance we were offered by the appellants on their new contention is recorded at  and . The Territory made no submissions about the new contention, possibly because of the late stage at which it was raised. Given that the parties did not join issue on the contention, and that the assistance we were offered by the appellants was minimal, we think it undesirable to rule upon it. If the new contention is sound, it merely provides a different reason for the application of s 47B. If it is unsound, the section applies because of what we have said at  to . If the submission recorded at  is but another way of putting what we have said at , then we agree with it, and the result is the same.
The cross appeal – the previous exclusive possession act – Crown Lease Term 624
171 The Northern Territory also contended in its cross-appeal that:
His Honour erred in failing to hold that the following areas were excluded from the application for a determination of native title because the areas had been the subject of previous exclusive possession acts under section 23B of the Native Title Act 1993 (Cth) which areas were expressly excluded from the area covered by the native title determination application:
8.1 Lot 47 which was previously the subject of Crown Lease Term 624 granted under the Crown Lands Act 1931 (NT) over Lot 47.
172 This ground was contingent upon the Court holding that s 47B did not have application to require any extinguishment within the claim area to be disregarded (save in relation to the waters of the creek and Lots 16, 22, 33, 35 and 37). His Honour having held, correctly as we have found, that s 47B did apply, the extinguishment effected by Crown Lease Term 624 is to be disregarded. On this point also therefore the cross-appeal does not succeed.
173 For the preceding reasons the appeal will be allowed and the cross-appeal will be dismissed.
I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Branson and Sundberg.
Dated: 22 November 2007
Counsel for the Appellant:
Mr S Gagelar SC, Mr S Glacken and Mr J Kneebone
Solicitor for the Appellant:
Mr R Levy, Northern Land Council
Counsel for the Respondent:
Ms R Webb QC, Associate Professor M Storey
and Ms K Gatis
Solicitor for the Respondent:
Ms Kalliopi Gatis, Solicitor for the Northern Territory, Department of Justice
Date of Hearing:
21 and 22 May 2007
Date of Judgment:
22 November 2007
Determination made by Weinberg J on 28 April 2006
THE COURT ORDERS THAT:
1. There be a determination of native title in terms of the determination set out below.
2. The native title is not to be held in trust.
3. An Aboriginal Corporation whose name is to be provided within 12 months, or such further time as a Judge of the Court may allow, is to:
(a) be the prescribed body corporate for purposes of s 57(2) of the Native Title Act 1993 (Cth) (“the Act”);
(b) perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate.
4. Until such time as there is a registered native title body corporate in relation to the determination area, any notices required under the Act or otherwise to be served on the common law holders may be served upon the Northern Land Council, and such service shall be deemed to be sufficient.
5. No order as to costs.
AND THE COURT DECLARES THAT:
6. In respect of land and waters referred to in paragraph 1 of the Determination, the application is not "finalised" within the meaning of s 190(4)(e) of the Act until a prescribed body corporate has been determined, in accordance with s 57(2) of the Native Title Act, to perform the functions mentioned in s 57(3) of the Act.
THE COURT DETERMINES THAT:
Existence of native title (s 225)
1. Native title exists in the areas of land and waters described in the schedule A (“the determination area”).
2. The land and waters described in schedule B are the subject of a previous exclusive possession act under s 23B of the Act, such acts being expressly excluded from the area covered by the native title determination application, and thus are not claimed in the application and are not part of the determination area.
The native title holders (s 225(a))
3. The determination area comprises the whole or part of five estates, which are held respectively by the members of the following five estate groups:
(a) the Makalamayi estate group;
(b) the Wunjaiyi estate group;
(c) the Yanturi estate group;
(d) the Wantawul estate group;
(e) the Maiyalaniwung estate group;
These persons are collectively referred to as ‘the estate group members’.
4. Each of the estate groups referred to in clause 3 hereof includes Ngaliwurru and Nungali persons who are members of the relevant estate group by reason of:
(a) descent through his or her:
(i) father’s father;
(ii) mother’s father;
(iii) father’s mother;
(iv) mother’s mother; or
(b) having been adopted or incorporated into the descent relationships referred to in (a) hereof.
The native title rights and interests (s 225(b) and 225(e))
5. The native title rights and interests of the estate group members in relation to the determination area are the non-exclusive rights to use and enjoy the land and waters in accordance with their traditional laws and customs being:
(a) the right to travel over, move about and to have access to the determination area;
(b) the right to hunt, fish and forage on the determination area;
(c) the right to gather and to use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to have access to and use the natural water of the determination area;
(e) the right to live on the land, to camp, to erect shelters and other structures;
(f) the right to:
(i) engage in cultural activities;
(ii) conduct ceremonies;
(iii) hold meetings;
(iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and
(v) participate in cultural practices relating to birth and death, including burial rights.
(g) the right to have access to, maintain and protect sites of significance on the determination area;
(h) the right to share or exchange subsistence and other traditional resources obtained on or from the land or waters (but not for any commercial purposes);
7. In accordance with traditional laws and customs, other Aboriginal people have rights in respect of the land and waters of an estate which is not their own, such people being:
(a) members of estate groups from neighbouring estates;
(b) spouses of the estate group members; and
(c) members of other estate groups with ritual authority.
8. The native title rights and interests of the persons referred to in clause 7 hereof in relation to the determination area are the non-exclusive rights to use and enjoy the land and waters in accordance with their traditional laws and customs being:
(a) in relation to members of estate groups from neighbouring estates - rights of access to, and rights to hunt, fish and gather the natural resources on the land and waters of their neighbouring estate group members;
(b) in relation to spouses of estate group members - rights of access to, and to hunt, fish and gather the natural resources on, the land and waters of their spouse's estate;
(c) in relation to members of other estate groups who hold ritual authority - rights to act, in accordance with traditional laws and customs, in relation to the maintenance and protection of sites associated with travels of an ancestral being associated with a Dreaming which passes through the estates in the determination area.
9. The native title rights and interests in clause 8 hereof do not confer on the other Aboriginal people in clause 7 hereof possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.
(a) minerals (as defined in s. 2 of the Minerals (Acquisition) Act (NT));
(b) petroleum (as defined in s. 5 of the Petroleum Act (NT));
(c) prescribed substances (as defined in s. 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s. 5(1) of the Atomic Energy Act 1953 (Cth))
Other interests (s225(c))
(a) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties;
(b) any interest of members of the public to the access and enjoyment (subject to the laws of the Northern Territory and the Commonwealth) of:
(i) the waters of Timber Creek;
(ii) beds and banks of Timber Creek
13. To clarify any doubt:
(a) to the extent, if at all, that the exercise of the native title rights and interests referred to herein conflicts with the exercise of the rights and interests of the persons referred to in clause 12(a), the rights and interests of the persons referred to in clause 12(a) prevail over, but do not extinguish, the native title rights; and,
(b) the native title rights and interests referred to herein coexist with the rights and interests of the persons referred to in clause 12(b).
Definitions and interpretation:
14. In the Determination, unless the contrary intention appears‘land’ and ‘waters’ respectively have the same meanings as in the Act.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
(d) Those lots within the Town of Timber Creek (as notified in the Northern Territory Government Gazette No 24, 20 June 1975) and allocated the following numbers: 1, 2, 3, 4, 5, 6, 7, 8, 9 33, 35, 37, 47, 56, 57, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 80, 87, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114 and depicted on the following map.
(e) The creek named Timber Creek (including its beds and banks) as it flows within the boundaries of the Town of Timber Creek (as notified in the Northern Territory Government Gazette No 24, 20 June 1975) and depicted on the following map.
[Map of determination area]
(Areas the subject of previous exclusive possession acts under s 23B of the Act, which are expressly excluded from the area covered by the native title determination application).
Those lots within the Town of Timber Creek (as notified in the Northern Territory Government Gazette No 24, 20 June 1975) and allocated the following numbers: 16, 22 and 49 and depicted on the map attached to Schedule A hereto.