FEDERAL COURT OF AUSTRALIA

Hayes v Northern Territory of Australia [2000] FCA 671

NATIVE TITLE – determination of native title – settlement of form of determination.

Native Title Act 1993 (Cth)

MYRA HAYES AND OTHERS v THE NORTHERN TERRITORY OF AUSTRALIA AND OTHERS

DG 6002 1996

OLNEY J

23 MAY 2000

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG No 6002 of 1996

BETWEEN:	MYRA HAYES AND OTHERS ApplicantS
AND:	THE NORTHERN TERRITORY OF AUSTRALIA AND OTHERS RespondentS
JUDGE:		OLNEY J
DATE:		23 May 2000
PLACE:		DARWIN

DETERMINATION OF NATIVE TITLE

THE COURT DETERMINES THAT:

1. Native title exists in relation to the land and waters more particularly described in the Schedule hereto (the determination area).

2. The persons who hold the common or group rights comprising the native title (the common law holders) are those Aboriginals who are descended (by birth or by adoption) from the original Arrernte inhabitants of the Mparntwe, Antulye and Irlpme estates who are recognised by the respective apmereke-artweye and kwertengerle of those estates under the traditional laws acknowledged and the traditional customs observed by them as having communal, group or individual rights and interests in relation to such estates.

3. The nature and extent of the native title rights and interests in relation to the determination area are:

a) the right to possession, occupation, use and enjoyment of the land and waters of the determination area;

b) the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates within the determination area;

c) the right to take, use and enjoy the natural resources found on or within the land and waters of the determination area;

d) the right to make decisions about the use of the land and waters of their respective estates within the determination area;

e) the right to protect places and areas of importance in or on the land and waters within the determination area;

f) the right to manage the spiritual forces and to safeguard the cultural knowledge associated with the land and waters of their respective estates within the determination area.

4. The nature and extent of other interests in relation to the determination area are:

a) rights and interests validly granted by the Crown pursuant to statute or by any valid executive or legislative act affecting the native title of the common law holders; and

b) other rights and interests of members of the public arising under the common law.

5. The rights referred to in paragraph 4:

a) continue to have effect and may be exercised notwithstanding the existence of the native title rights and interests referred to in paragraph 3; and

b) an activity done in exercise of such rights will prevail over the native title rights and interests referred to in paragraph 3.

6. The native title rights and interests of the common law holders do not confer possession, occupation, use and enjoyment of the land and waters of the determination area on the common law holders to the exclusion of all others.

7. The rights and interests from time to time comprising the native title are to be held by the common law holders.

AND THE COURT FURTHER ORDERS THAT:

8. Within six months of the date of this order a representative of the common law holders is to nominate in writing given to the Federal Court of Australia the Artepe Ulpaye Aboriginal Corporation:

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

(b) to perform the functions mentioned in s 57(2) of that Act after becoming a registered native title body corporate.

as to which the applicants have liberty to apply.

9. The parties have liberty to apply for the following purposes:

(a) to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the claim areas referred to in the Schedule to this determination; and

(b) to establish the precise location of the boundaries of land affected by any previous exclusive possession act or category A intermediate act identified in relation to the claim areas referred to in the Schedule to this determination.

THE SCHEDULE

a) those parts of the areas specified in the table which have been the subject of a previous exclusive possession act (as defined in s 23B(2) of the Native Title Act 1993), a category A intermediate period act (as defined in s 232B of the said Act) or a public work (as defined in s 253 of the said Act including any adjacent land or waters of the type referred to in s 251D of the said Act). [In the table relevant previous acts and public works are identified by an asterisk (*) below the relevant Lot or Northern Territory Portion number];

b) any other parts of the said areas on which a public work is or has been constructed or established and any adjacent land or waters the use of which is or was necessary for or incidental to, the construction, establishment or operation of the work.

NOTE: Current interests in the land are identified. Unless otherwise indicated the land is unalienated Crown land.

TABLE

Area 2. NTP 935

Reserve 1289 (Kuyunba Conservation Reserve).

* The public works comprising production and monitoring bores and adjacent land.

Area 5 LOT 941

and

Area 6. Lot 943

Reserve 1071 (Alice Springs Telegraph Station Historical Reserve).

The public works within Reserve 1071 and adjacent land and waters being the areas depicted on the part of exhibit NT 46 which is identified as Sheet 7 of 7 and described thereon as:

i) area identified by Central Land Council boundary subject to survey, and

ii) 30 m road reserve identified by Parks & Wildlife Commission boundary subject to survey.

Area 9. NTP 1510

Reserve 1248 (Geological and geophysical purposes).

Area 10. NTP 1686

Reserve 1071 (Alice Springs Telegraph Station Historical Reserve).

Area 11. LOT 2314

Reserve 1294 (Alice Springs Telegraph Station National Park).

Area 12. LOT 5124

Reserve 1248 (Geological and geophysical purposes).

Area 13. LOT 5140

Reserve 1708 (Municipal purposes).

The public works comprising one monitoring bore and one production bore.

Area 14. LOT 5141

Reserve 1708 (Municipal purposes).

The public works comprising one disused production bore and one monitoring bore.

Area 15. LOT 5142

Reserve 1708 (Municipal purposes).

The public works comprising one monitoring bore.

Area 16. LOT 5804

Reserve 1708 (Municipal purposes).

Area 17. LOT 5805

Reserve 1708 (Municipal purposes).

The public works comprising 5 monitoring bores.

Area 18. LOT 5806

Reserve 1708 (Municipal purposes).

The public works comprising one disused production bore.

Area 19. LOT 5807

Reserve 1708 (Municipal purposes).

Area 20. LOT 5808

Reserve 1708 (Municipal purposes).

Area 21. LOT 5809

Reserve 1708 (Municipal purposes).

Area 22. LOT 5810

Reserve 1708 (Municipal purposes).

Area 24. NTP 688

CLP 770 (Conservation Land Corporation -West Macdonnell National Park).

Area 25. NTP 1927

CLP 595 (Conservation Land Corporation).

Part of land within SPL 364.

Area 26. NTP 5774

CLP 445 (Conservation Land Corporation).

Area 28. LOT 8212

CLP 1116 (Conservation Land Corporation – Alice Springs Desert Park).

	*	Part of land within SPL 92.
	*	The public works comprising all buildings and structures within the Alice Springs Desert Park (excluding the Herbarium) including the access road, car park and monitoring bore and any adjacent land and waters.

Area 32. LOT 2669

Crown land set aside for water supply purposes.

* The public works comprising concrete pillars (water tank foundations).

Area 33. Lot 2683

Crown land set aside for Anzac Hill High School.

The public works comprising the Anzac Hill High School and adjacent land and waters being the areas depicted on the part of exhibit NT 46 which is identified as Sheet 3 of 7 and described thereon as:

i) area identified by Central Land Council boundary subject to survey, and

ii) 6 m lane required by Anzac Hill High School.

Area 36. Lot 5651

Crown land set aside for Sadadeen Primary and Acacia Hill Special School.

Part of land within ML 482.

The public works comprising the Sadadeen Primary School and Acacia Hill Special School and adjacent land and waters being the areas depicted on the part of exhibit NT 46 which is identified asSheet 2 of 7 and described thereon as:

i) area identified by Central Land Council boundary subject to

survey; and

ii) additional area identified by Sadadeen Primary School.

Area 38.

LOT 8237

Crown land set aside for a drainage area.

* The public works comprising one monitoring bore.

Area 39. LOT 8238

Crown land set aside as a drain.

Area 40. LOT 950

Part of land within ML 271

Area 42. LOT 1285

Area 43. LOT 1343

Area 45. LOT 1605

Area 46. LOT 2421

Area 49. LOT 2494

Crown land utilized for drainage purposes.

Part of land within ML 394.

Area 51. LOT 2670

Area 52. LOT 3203

Crown land utilized for drainage purposes.

Area 54. LOT 4291

Part of land within ML 442.

Area 55. LOT 4438

Area 57. LOT 4619

Area 58. LOT 4620

Area 59. LOT 4621

Area 60. LOT 4622

Area 61. LOT 4623

Area 62. LOT 5153

Area 70. LOT 5816

The public works comprising an army blockhouse/explosives magazine.

Area 71. LOT 6449

Part of land within ML 38.

Area 72. LOT 6453

Area 74. LOT 6742

Area 75. LOT 6743

Area 76. LOT 6744

Area 80. LOT 7393

Part of land within CLT 104.

Area 83. LOT 7413

Area 86. LOT 7422

Part of land within LTL 1598 and LTL 2061.

Area 87. LOT 7466

	*	Part of land within ML 38.
	*	The public work comprising one monitoring bore.

Area 88. LOT 7583

Area 89. LOT 7708

Area 90. LOT 7709

Area 92. LOT 7727

Area 94. LOT 7741

Area 95. LOT 7742

Area 98. LOT 7882

Area 101. LOT 8047

Area 102. LOT 8051

Area 103. LOT 8053

Area 105. LOT 8063

Area 106. LOTS 8064 and 8471

Part of land within ML 429, ML 442 and ML 483

Area 108. LOT 8066

	*	Part of land within SPL 337.
	*	The public work comprising the access road to the Telegraph Station.

Area 109. LOT 8067

Area 110. LOT 8068

Occupation Licence 3114.

Area 111. LOT 8069

Area 112. LOT 8070

Part of land within ML 442.

Area 116. LOT 8074

Area 117. LOT 8075

Area 118. LOT 8076

Part of land within ML 442

Area 119. LOT 8077

Part of land within ML 442

Area 120. LOT 8078

Occupation Licence 3116.

Area 121. LOT 8079

Area 122. LOT 8080

Area 123. LOT 8081 (Now Lot 8081 and Lot 8712).

Area 124. LOT 8082

Area 125. LOT 8083

Area 126. LOT 8086

Area 127. LOT 8087

Area 128. LOT 8088

Area 129. LOT 8089

Area 130. LOT 8090

Area 131. LOT 8091

Area 132. LOT 8092

Area 133. LOT 8093

The public works comprising the Alice Springs Sewage Ponds ‘C’, two monitoring bores and adjacent land and waters being the area depicted on the part of exhibit NT 46 which is identified as Sheet 5 of 7 and described thereon as “area identified by Central Land Council boundary subject to survey”.

Area 134. LOT 8097

The public works comprising 4 monitoring bores.

Area 135. LOT 8098

Area 136. LOT 8099

Area 137. LOT 8100

Area 138. LOT 8101

The public works comprising Undoolya Road.

Area 139. LOT 8102

Occupation Licence 3102.

Area 140. LOT 8103

Area 141. LOT 8104

	*	Part of land within ML 38.
	*	The public works comprising Stott Terrace, the bitumen road to the power station and the access road to Ewyenper Atwatye (Hidden Valley).

Area 142. LOT 8105 (Now lots 8163 – 8166)

The public works comprising 3 monitoring bores.

Area 143. LOT 8106

Area 144. LOT 8107

Area 145. LOT 8108

Part of land within ML 482.

The public works comprising the Sadadeen Water Tank and the access road to the tank and adjacent land and waters being the areas depicted on the part of exhibit NT 46 which is identified as Sheet 4 of 7 and described thereon as:

i) area identified by Central Land Council boundary subject to survey; and

ii) 50 m corridor required by PAWA boundary subject to survey.

Area 146. LOT 8109

Area 147. LOT 8110

Area 148. LOT 8111

Area 149. LOT 8112

Area 150. LOT 8113

Area 151. LOT 8114

Crown land declared a protected area under Territory Parks and Wildlife Conservation Act (Alice Springs Sewerage Ponds).

Area 152. LOT 8115

Crown land declared a protected area under Territory Parks and Wildlife Conservation Act (Alice Springs Sewerage Ponds).

Area 153. LOT 8116

Area 154. LOT 8117

Crown land partly within an area declared a protected area under Territory Parks and Wildlife Conservation Act (Alice Springs Sewerage Ponds).

Area 155. LOT 8118

Crown land partly within an area declared a protected area under Territory Parks and Wildlife Conservation Act (Alice Springs Sewerage Ponds).

Area 156. LOT 8119

Part of land within ML 443.

Area 159. LOT 8122

Part of land within CLT 104.

Area 161. LOT 8169

Area 162. LOT 8170

Area 163. LOT 8171

Area 165. LOT 8240

Area 166. LOT 8287

Area 167. LOT 8288

Occupation Licence 3122 over part.

Area 168. LOT 8391

Crown land set aside for extension to Alice Springs garbage dump.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG No 6002 of 1996

BETWEEN:	MYRA HAYES AND OTHERS ApplicantS
AND:	THE NORTHERN TERRITORY OF AUSTRALIA AND OTHERS RespondentS
JUDGE:		OLNEY J
DATE:		23 May 2000
PLACE:		DARWIN

SUPPLEMENTARY REASONS RELATING TO THE

FORM OF DETERMINATION OF NATIVE TITLE

1. On 9 September 1999 I published my reasons for decision in this proceeding (the judgment) together with a draft minute of a proposed determination of native title (the draft determination). The applicants are entitled to a determination which reflects the findings expressed in the judgment. At paragraph 130 of the judgment I said (in part)

Section 225 of the Native Title Act refers to the making of a determination of native title in relation to a “particular area” of land and waters. In a case involving large tracts of land, such as pastoral holdings or remote areas of unalienated land the task of describing the determination area by metes and bounds would not normally present any great difficulty but in a case such as the present the problem is compounded not only by the number of discrete parcels of land involved but by the fact that the current lot and portion boundaries bear little or no relationship to the boundaries of land which in earlier times has been the subject of extinguishing acts. Whilst many of the 166 areas of claimed land have not been the subject of any extinguishment, there are many others in respect of which native title has been extinguished as to the whole of the lot or portion. Those cases present no difficulty but there remain numerous areas in respect of which extinguishing acts have affected only a portion of the land. The position is further complicated by the lack of definition in many instances of the location and area of land occupied by public works and adjacent land.

After setting out the various parcels of land which comprised the determination area for the purposes of the proceeding I continued:

In the final determination it will be preferable for these areas to be described by reference to their respective lot or portion numbers, and for a map or some other description to be prepared to define relevant boundaries in cases in which only part of the claimed land has been subject to extinguishment. These are matters (about) which the Court must look to the parties for assistance.

2. In paragraph 131 of the judgment I set out the terms of the proposed determination but without defining the determination area. At paragraph 132 I said:

The Court intends to make a determination of native title substantially in the terms outlined in the last preceding paragraph. The final content and form of the determination will be settled after the parties have had the opportunity to consider these reasons and to make submissions as to (the) precise content of the determination. It is expected that prior to any such submissions being made the parties will confer with a view to reaching a consensus as to the ultimate form of the determination.

The text of the draft determination as published on 9 September 1999 is set out in Appendix 1 to these reasons. It was my intention that once the parties had had the opportunity to comment on the draft and, if thought appropriate, to file a minute of their own alternative proposals, a final determination would be made on 9 December 1999. As it happened, the task of resolving a number of outstanding issues proved to be more time consuming than I had anticipated. On 16 March 2000 the matter was called on for mention in Darwin when the parties reported on the progress that had been achieved and identified the matters on which consensus had not been reached. On that occasion I directed that each party submit a minute of its proposed determination by 20 April 2000. This was duly done. However, as there appeared to be some doubt as to the precise agreement reached between the parties in relation to a number of claim areas the Court sought further clarification. In response to the Court’s request the Solicitor for the Northern Territory submitted a letter dated 3 May 2000 which was accompanied by six enhanced aerial photographs identified respectively as Sheets 2 of 7, 3 of 7, 4 of 7, 5 of 7, 6 of 7 and 7 of 7, each of which deals with a separate claim area in respect of which the boundaries of relevant areas identified by the parties are marked. By letters dated 16 May 2000 and 17 May 2000 the Central Land Council has confirmed the basis of agreement reached between the parties in relation to five of the claim areas in question. As the areas of adjacent land and waters about which agreement has been reached have been identified by reference to the aerial photographs accompanying the Solicitor for the Northern Territory’s letter of 3 May 2000, the letter together with the accompanying sheets will be marked as exhibit NT 46 and the Central Land Council’s letters of 16 May 2000 and 17 May 2000 will be marked as exhibits A 72.1 and A 72.2 respectively. The parties have been unable to reach agreement in relation to claim area 28.

3. Before dealing with claim area 28 it is necessary to identify a number of amendments that need to be made to the draft determination and to the judgment.

i) Paragraph 2 of the draft determination should be amended so as to take account of the wider notion of “descent” which the parties accept, and which I have found, includes adoption. For the respondent it is suggested that after the word “descended” in paragraph 2 there be added “(by birth or adoption)”. The applicants’ proposal is that paragraph 2 should identify the common law holders as

… those Aboriginals who are ~~descended from~~ the biological or adoptive descendants of the original Arrernte inhabitants of the Mparntwe, Antulye and Irlpme estates and those Aboriginals who are recognised by the respective apmereke-artweye and kwertengerle of those estates under the traditional laws acknowledged and the traditional customs observed by them as having communal, group or individual rights and interests in relation to such estates.

The applicants’ proposal goes beyond my findings as expressed in the judgment. It would encompass all persons who are descended (either biologically or by adoption) from the original inhabitants as well as other Aboriginals who are recognised as having rights of the type described. My intention was that only those descendants who were appropriately recognised should be encompassed by the description. In these circumstances I propose to adopt the respondent’s proposal.

ii) Paragraph 5 of the draft determination includes two typographical errors: the reference therein to paragraph (4) should be to paragraph 3; and the reference to paragraph (5) should be to paragraph 4.

iii) The Appendix to the judgment identifies the various areas of land claimed and gives details of such things as the current tenure status of each parcel and prior acts which extinguished native title in respect of either the whole or part of each parcel. The details provided in relation to claim areas 80 and 86 in the Appendix should respectively state:

Area 80 Lot 7393

Unalienated Crown land

*27/3/83 – 16/4/86 Partly within CLT 104.

Area 86 Lot 7422

Unalienated Crown land

*1/7/59 – 21/5/62 Partly within LTL 1598

*1/7/65 – 5/5/67 Partly within LTL 2061

As a result of these amendments area 80 should be removed from paragraph (a) in the Schedule to the draft determination and areas 80 and 86 should be included in paragraph (b).

iv) Claim area 159 was inadvertently omitted from the draft determination and should be included in paragraph (b) of the Schedule.

v) In paragraph 119(xiv) of the judgment the Kuyunba Reserve (claim area 2) is shown incorrectly as Reserve 1789. The correct reserve number is 1289 as shown in the Appendix to the judgment.

vi) In the final sentence of paragraph 128 of the judgment claim area 145 is incorrectly included amongst those areas which are said to be affected by the provisions of s 47B of the Native Title Act. Area 145 is not otherwise referred to in the judgment as one of the areas affected by the provisions of that section and is correctly included in paragraph (b) of the Schedule to the draft determination.

4. The applicants’ submission of 19 April 2000 suggests that the Court has not dealt with the works comprising the retardation dam on claim areas 81 and 82. The submission refers to paragraph 98(xvi) of the judgment. The two areas (as well as area 104) are however expressly dealt with in paragraph 119(xvii) in which I found that the current use of these and other areas is inconsistent with the continuation of native title.

5. Claim area 28 (Lot 8212) is known as the Alice Springs Desert Park. Part of the land was formerly within SPL 92 and to that extent native title rights have been extinguished. The question of public works constructed within the park is dealt with at paragraph 98(xviii) of the judgment where I said:

All buildings and structures within the Alice Springs Desert Park were constructed by or on behalf of the Crown in some capacity and (with one exception) were established, or at least commenced, during the period 1 January 1994 to 23 December 1996 at a time when the land was covered by CLP 1116. The sole exception is the Herbarium which was not commenced until 1997. Apart from the Herbarium all of the buildings and structures within the park which are fixtures, and all roads (including the carpark) are public works which are for the purposes of the Native Title Act category A intermediate period acts. The public works in question include relevant adjacent land but on the available evidence it is not possible to define such adjacent land with any precision. There is no evidence to support the respondent’s proposition that the whole of the land and waters within the chain mesh fencing surrounding the core area of the park is adjacent land.

The parties have been unable to reach agreement as to the area of adjacent land in relation to the various fixtures existing on the land at the relevant time. The competing assertions of the parties are illustrated on the enhanced aerial photograph which is Sheet 6 of 7 (being now part of exhibit NT 46). The respondent’s proposed boundary of the land affected by public works and adjacent land encompasses a significantly larger area than that advocated by the applicants. The position therefore remains as it was at the time the judgment was delivered, namely, that there is no evidence upon which the Court can make a decision as to the precise area of the public works and adjacent land and waters. In the circumstances, I will reserve liberty to apply in the event that in the future it becomes necessary to establish a definitive boundary of the relevant area.

7. The requirement of s 225(c) and (d) of the Native Title Act that a determination of native title, in a case where native title exists, must include a determination of the nature and extent of any other interests in relation to the determination area and the relationship between such other interests and the native title rights and interests is not one that can readily be satisfied with any precision. Whilst it is likely that in the course of the trial of a proceeding reference will be made to legislative and executive acts which affect the determination area, it could rarely be said with confidence that every such act has been identified, nor is it possible to define with any confidence what common law rights might be found to affect the determination area. In these circumstances I am of the view that no useful purpose is to be served by attempting to particularise all non-native title interests which are thought to exist in relation to the determination area. To do so, without a general reference to any other interests, could lead to the impression that only those interests that are specified affect the determination area.

7. On 9 September 1999, as required by s 56 of the Native Title Act, I requested Ms Myra Hayes Ampetyane, as a representative of the persons the Court proposes to include in its determination of native title as the native title holders (the common law holders), to indicate whether the common law holders intend to have the native title held in trust by:

i) nominating in writing to the Federal Court within 2 months from the date of the request, a prescribed body corporate to be trustee of the native title; and

ii) including with the nomination the written consent of the body corporate.

No such nomination has been received and in fact the applicants through their representatives have advised the Court that they intend that the rights and interests from time to time comprising the native title be held by the common law holders. In these circumstances the Court’s determination will reflect the common law holders’ intention. The common law holders have indicated that the prescribed body corporate that will act as their agent or representative in respect of matters relating to the native title the subject of the Court’s determination is to be named the Artepe Ulpaye Aboriginal Corporation and that they are presently in the process of finalising the rules of the corporation before submitting them to the Registrar of Aboriginal Corporations pursuant to s 43 of the Aboriginal Council and Associations Act 1976. As it is anticipated that up to a further 6 months will be required before incorporation of the proposed corporation is effected, and in order to comply with s 57 of the Native Title Act, the Court will make the further orders sought by the applicants for this purpose. The applicants will have liberty to apply in relation to such orders.

8. Having regard to the various matters discussed above, and taking account of the submissions made on behalf of the parties, I am of the opinion that the appropriate determination in this proceeding is as set out in Appendix 2 to these reasons. It will be observed that one of my earlier concerns, namely the identification of boundaries where a portion of a claimed are has been affected by an extinguishing act, has not been addressed except in relation to the public works and adjacent land and waters previously referred to. I am however informed that the necessary information and technology is available to produce maps of any such areas with the relevant boundaries marked thereon if this should become necessary. There would of course be no physical demarcation of the boundaries on the ground unless and until a survey has been carried out. In order to accommodate the possibility that it may in the future be appropriate to amend the determination by substituting a more precise description of a part or parts of the determination area, I propose to reserve liberty to apply.

Appendix 1

(Draft minute of determination published on

9 September 1999)

THE COURT DETERMINES THAT:

1. Native title exists in relation to the land and waters more particularly described in the Schedule hereto (the determination area).

2. The persons who hold the common or group rights comprising the native title (the common law holders) are those Aboriginals who are descended from the original Arrernte inhabitants of the Mparntwe, Antulye and Irlpme estates who are recognised by the respective apmereke-artweye and kwertengerle of those estates under the traditional laws acknowledged and the traditional customs observed by them as having communal, group or individual rights and interests in relation to such estates.

3. The nature and extent of the native title rights and interests in relation to the determination area are, subject to the rights of others validly granted by the Crown pursuant to statute and to any valid executive or legislative act affecting the native title of the common law holders, as follows:

a) the right to possession, occupation, use and enjoyment of the land and waters of the determination area;

b) the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates within the determination area;

c) the right to take, use and enjoy the natural resources found on or within the land and waters of the determination area;

d) the right to make decisions about the use of the land and waters of their respective estates within the determination;

e) the right to protect places and areas of importance in or on the land and waters within the determination area;

f) the right to manage the spiritual forces and to safeguard the cultural knowledge associated with the land and waters of their respective estates within the determination area.

4. The nature and extent of other interests in relation to the determination area are such rights and interests validly granted by the Crown pursuant to statute or by any valid executive or legislative act affecting the native title of the common law holders including the rights and interests of members of the public to the use and enjoyment of the determination area according to law.

5. To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph (4) and the rights conferred by the other interests referred to in paragraph (5), the native title rights and interests must yield to such other rights.

7. The rights and interests from time to time comprising the native title are to be held by ……………………………

THE SCHEDULE

ALL THOSE areas of land and waters in the Northern Territory of Australia being:

a) the whole of each of the areas referred to in the Appendix to the reasons for judgment published on 9 September 1999 in Federal Court of Australia proceeding DG 6002 of 1996 and identified as areas 2, 5, 6, 9 to 22 (inclusive), 24, 26, 32, 38, 39, 42, 43, 45, 46, 51, 52, 55, 57 to 62 (inclusive), 70, 72, 74 to 76 (inclusive), 80, 83, 88 to 90 (inclusive), 92, 94, 95, 98, 101 to 103 (inclusive), 105, 109 to 111 (inclusive), 116, 117, 120 to 140 (inclusive), 142 to 144 (inclusive), 146 to 155 (inclusive), 161 to 163 (inclusive) and 165 to 168 (inclusive); and

b) those parts of the areas referred to in the said Appendix and identified as areas 25, 28, 33, 36, 40, 49, 54, 71, 87, 106, 108, 112, 118, 119, 141, 145 and 156 which have not been the subject of a previous exclusive possession act (as defined in s 23B of Native Title Act 1993) or a category A intermediate period act (as defined in s 232B of the said Act);

EXCLUDING any land or waters on which a public work (as defined in s 253 of the said Act) is or has been constructed or established and any adjacent land or waters the use of which is or was necessary for or incidental to, the construction, establishment or operation of the work.

Appendix 2