FEDERAL COURT OF AUSTRALIA

The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472

NATIVE TITLE – application for determination – whether the claimants had a connection with the claim area at the time of sovereignty, and if so, whether this connection has continued since sovereignty – whether the applicants (from 7 different landholding groups) constitute a single community – rights claimed accepted as not exclusive – whether the rights and interests claimed have been extinguished (either totally or partially) by the granting of various non-exclusive pastoral leases and grazing licences where the leases contained reservations protecting some rights of the Aborigines – whether the rights and interests claimed have been extinguished (either totally or partially) by the granting of a crown lease perpetual, with the intention that this land become a national park and camping ground – whether the rights and interests claimed have been extinguished (either totally or partially) by the undertaking of ‘public works’, such as building roads, barbeques and interpretive panels and shelters.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 3(1), 71(1)

Federal Court of Australia Act 1976 (Cth) ss, 17(4), 50

Native Title Act 1993 (Cth) ss 4(6), 10, 15, 19, 23A, 23B, 23D, 23E-234, 24ID, 24KA, 44H, 47B, 61, 86, 223, 225, 228-230, 232, 232A, 237, 238, 251D, 253

Native Title Amendment Act 1998 (Cth)

Northern Territory Acceptance Act 1910 (Cth)

Northern Territory Acceptance Act 1920 (Cth) s 10

Northern Territory (Administration) Act 1910 (Cth)

Northern Territory (Self-Government) Act 1978 (Cth) ss 57, 69

Racial Discrimination Act 1975 (Cth) s 9, 10

Crown Lands Act 1992 (NT) ss 24, 37

Crown Lands Ordinance 1912-1923 (Cth)

Crown Lands Ordinance 1924-1927 (Cth)

Crown Lands Ordinance 1931-1959 (Cth)

Crown Lands Ordinance 1964 (Cth) s 23(b)

Crown Lands (Validation of Proclamations) Ordinance 1976 (Cth)

Crown Lands Ordinance No 3 1978 (Cth)

Pastoral Lands Act 1992 (NT) ss 38(2), 130, 131

Minerals (Acquisition) Act (NT)

Northern Territory Aboriginal Sacred Sites Act (NT)

Parks and Wildlife Commission Act (NT) ss 9, 19, 20, 27, 29, 39

Petroleum Act 1984 (NT)

Territory Parks and Wildlife Conservation Act (NT) ss 12, 14, 18, 122

Validation of Titles and Actions Act 1994 (NT)

Validation (Native Title) Act (NT) ss 8, 9J, 9M, 11

Northern Territory Land Act 1872 (SA)

The Northern Territory Crown Lands Act 1890 (SA)

The Northern Territory Crown Lands Consolidation Act 1882 (SA)

The Northern Territory Surrender Act 1907 (SA) s 7

R v Kearney; Ex parte Japananglea (1984) 158 CLR 395 cited

Western Australia v Ward (1997) 76 FCR 492 cited

Western Australia v Ward (2002) 191 ALR 1; [2002] HCA 28 (Ward) applied

Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 applied

Wilson v Anderson (2002) 76 ALJR 1306; [2002] HCA 29 applied

The Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory (2000) 104 FCR 380; [2000] FCA 923 applied

Northern Land Council v Olney (1992) 34 FCR 470 applied

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

Fejo v Northern Territory (1998) 195 CLR 96 applied

Commonwealth of Australia v Yarmirr (2001) 75 ALJR 1582; [2001] HCA 56 applied

Wik Peoples v Queensland (1996) 187 CLR 1 applied

Yarmirr v Northern Territory of Australia (1998) 156 ALR 370 applied

Ward v Western Australia (1998) 159 ALR 483 applied

Re Waanyi People’s Application (1995) 129 ALR 100 cited

Western Australia v Ward (2000) 99 FCR 316 applied

Mason v Tritton (1994) 34 NSWLR 572 applied

Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 cited

Yanner v Eaton (1999) 166 ALR 258 applied

De Rose v State of South Australia [2002] FCA 1342 applied

Western Australia v Commonwealth of Australia (1995) 183 CLR 373 applied

Hayes v Northern Territory (1999) 97 FCR 32 cited

Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 applied

THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAY NATIVE TITLE CLAIM GROUP v NORTHERN TERRITORY OF AUSTRALIA & CONSERVATION LAND CORPORATION

DG 6002 of 1998

MANSFIELD J

23 APRIL 2004

ALICE SPRINGS

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG 6002 OF 1998

BETWEEN:	THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAY NATIVE TITLE CLAIM GROUP APPLICANT
AND:	NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT CONSERVATION LAND CORPORATION SECOND RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	23 APRIL 2004
WHERE MADE:	ALICE SPRINGS

THE COURT ORDERS DECLARES AND DETERMINES:

1. Native title exists in relation to the determination areas which comprise the land and waters covered by the Northern Territory Portions 4386 and 4387 and the Town of Hatches Creek.

The determination area does not include the areas set out in the Schedule.

2. The persons who hold the communal or group rights comprising the native title as common law holders are the Aboriginal persons who are:

(a) members of one or more of the seven landholding groups (Arrawatyen, Antarrengeny, Akweranty/Anwerret, Lyentyawal Ileparranem, Tyaw, Warwepenty and Kelantyerrang) by virtue of descent through his or her father’s father, father’s mother, mothers’ father and mother’s mother; or

(b) recognised by the persons referred to in sub-paragraph (a) hereof, as members of one or more of the seven landholding groups by virtue of non-descent based connections, including adoption or birthplace affiliation;

(c) spouses of persons referred to in sub-paragraphs (a) or (b) and are recognised, by the persons referred to in sub-paragraph (a) hereof, as having native title rights and interests in the determination area.

3. Subject to paragraphs 4 and 5, the nature and extent of the native title rights and interests recognised by the common law in relation to the determination area are the rights set out below, including the right to conduct activities incidental to them.

(a) the right to hunt and fish together and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax and to have access to and use of water on or in the land;

(b) the right to live on the land, to camp, erect shelters and other structures, and to travel over and visit any part of the land and waters;

(c) the right to engage in cultural activities on the land, to conduct ceremonies and hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters and to participate in cultural practices relating to birth and death, including burial rights;

(d) the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements;

(e) the right to make decisions about access to the land and waters by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;

(f) the right to make decisions about the use and enjoyment of the land and waters and the subsistence and other traditional resources thereof, by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;

(g) the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters;

(h) the right to control the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters;

(i) the right to determine and regulate the membership of and recruitment to a landholding group;

4. In relation to that part of the determination area identified as Northern Territory Portions 4386 and 4387 the native title rights and interests are not exclusive of the rights and interests of others.

5. In relation to that part of the determination area identified as the Town of Hatches Creek the native title rights and interests are exclusive of the rights and interests of others, subject to subclause 7(b) hereof.

6. The native title rights and interests of members of the respective landholding groups referred to in paragraph 2 above, are held subject to and are exercisable in accordance with the traditional laws and customs of the common law holders.

7. The nature and extent of other interests in relation to the determination area (the other rights and interests) are as follows:

(a) In relation to Northern Territory Portions 4386 and 4387:

(i) the interest of the Conservation Land Corporation as the holder of Crown Lease Perpetual No 1117;

(ii) the interest of the Parks and Wildlife Commission of the Northern Territory in the care, control and management of the land comprised in Crown Lease Perpetual No 1117 pursuant to its functions and powers under the Parks and Wildlife Commission Act (NT);

(iii) the interest of the Parks and Wildlife Commission in any buildings, structures or other works constructed or established on the land;

(iv) interests of the Crown pursuant to statute or otherwise in exercise of its executive power or held as the result of the assertion of sovereignty;

(v) rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power;

(vi) rights of access to the land by agents, employees or instrumentalities of the Crown (in right of the Territory or the Commonwealth) as required in the performance of their statutory or common law duties;

(vii) the interests of members of the public with rights of access to the land arising under statute.

(b) In relation to the Town of Hatches Creek, the interest of any person with a right of access to the land conferred by or arising under a law of the Northern Territory or the Commonwealth.

8. The relationship between the native title rights and interests described in paragraph 3 and the other rights and interests referred to in paragraph 7 is that:

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

(b) (i) to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist, but have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and

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

(c) the doing of any activity giving effect to the other rights and interests prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them;

(d) in relation to the rights and interests conferred by or arising under Crown Lease Perpetual No 1117 (the lease):

(i) the Crown Lands Act (NT) and the lease are the source of the rights and interests of the Conservation Land Corporation, the function of which is set out in s 39 of the Parks and Wildlife Commission Act (NT);

(ii) section 39(6) of the Parks and Wildlife Commission Act (NT) is the source of the rights and interests of the Parks and Wildlife Commission, the functions of which are set out in s 19 of the Act and which are limited to promoting the conservation and protection of the natural environment and the protection, conservation and sustainable use of wildlife;

(iii) the land and waters comprised in the lease have not been declared a park or reserve under s 121(1) of the Territory Parks and Wildlife Conservation Act (NT);

(iv) Aboriginal people who have traditionally used the land and waters have the right to continue to do so in accordance with Aboriginal tradition for hunting, food gathering (otherwise than for the purpose of sale) and for ceremonial and religious purposes under s 122 of the Territory Parks and Wildlife Conservation Act (NT);

(v) Aboriginal people have a right of access to sacred sites in accordance with Aboriginal tradition under s 46 of the Northern Territory Aboriginal Sacred Sites Act (NT).

(e) In relation to the Northern Territory Portions 4386 and 4387, the native title rights and interests that are not inconsistent with and may be exercised notwithstanding the other rights and interests referred to in paragraph 7(a) are:

(i) the right to use the land and waters for hunting, fishing and the gathering of traditional resources for food and other domestic purposes, according to traditional laws and customs;

(ii) the right to use the land and waters for ceremonial and religious purposes, including conducting ceremonies, participating in other cultural practices and the transmission of cultural knowledge;

(iii) the right to live on the land for the purpose of conducting such activities;

(iv) the right to make decisions about access to and the use and enjoyment of the land and waters and the traditional resources thereof, for the purpose of conducting such activities;

(v) the right to access places and areas of importance and to maintain and protect them from damage, disturbance or interference;

(vi) the right to assert and to be acknowledged as the Aboriginal owners of the land and waters in accordance with traditional laws and customs.

Note: In respect of the rights referred to in paragraph 3(e) and paragraph 3(f) hereof, the Court has determined that those rights are inconsistent with the rights granted by, or by reason of Crown Lease Perpetual No 1117 to the Conservation Land Corporation over Northern Territory Portions 4386 and 4387. Those rights continue to exist but have no effect in relation to the grant of the Crown Lease Perpetual 1117 because the non-extinguishment principle applies to them: section 238, Native Title Act 1993 (Cth).

AND THE COURT FURTHER ORDERS THAT

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

10. An Aboriginal Corporation whose name will be provided within 3 months is to:

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

(b) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth).

SCHEDULE

Exclusions from the Determination Area

1. Areas subject to previous exclusive possession acts, having been excluded from the native title determination application, are excluded from the determination area in accordance with section 61A of the Native Title Act 1993 (Cth).

Public works

The areas on which the following public work as defined in s 253 of Native Title Act 1993 (Cth) are situated, including the land and waters defined in s 251D of the Act, are excluded from the determination area:

(i) the two wheel drive access road to the Old Police Station Waterhole (Athethew) (North Loop);

(ii) the four wheel drive access road to the Irminga (Irrmeng) Waterhole and Whistle Duck Creek day use camping area;

(iii) the land and waters adjacent to the two roads referred to in (i) and (ii) hereof the use of which the construction, establishment or operation of the two roads.

2. To avoid doubt, the roads excluded from NT Portions 4386 and 4387 as delineated on plan number S93/20A dated 30 August 1993 are excluded from the determination area.

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 6002 OF 1998

BETWEEN:

THE ALYAWARR, KAYTETYE, WARUMUNGU, WAKAY NATIVE TITLE CLAIM GROUP

APPLICANT

AND:

NORTHERN TERRITORY OF AUSTRALIA

FIRST RESPONDENT

CONSERVATION LAND CORPORATION

SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	23 APRIL 2004
PLACE:	ALICE SPRINGS

REASONS FOR JUDGMENT

introduction

1 This is an application for determination of native title under the Native Title Act 1993 (Cth) (the NT Act) in relation to an area of land and waters south south-east of Tennant Creek in the Northern Territory. The application is brought on behalf of a claim group called the Alyawarr, Kaytetye, Warumungu, Wakay Native Title group.

2 The native title claim group is described by reference to its four language groups or tribal groups. It is also recognised that it can be described by its seven landholding or estate groups, with particular applicants being persons chosen to represent those landholding or estate groups, as follows:

Arrawatyen

Kwementyey (Gordon) Jangala Nappa

Lesley Foster Ampetyan

Antarrengeny

Nita Holmes Akemarr

Albert Bailey Akemarr

Akweranty/Anwerret

(referred to by either of

these names)

Kwementyey (Peggy) Wickham Apetyarr

Barry Wickham Apetyarr

Lyentyawel Ileparranem

(referred to by either of

these names)

Nita Holmes Akemarr

Albert Bailey Akemarr

Alan Philimac Kngwarrey

Tyaw

Alan Philmac Kngwarrey

Jemima Foster Apetyarr

Warwepenty

Murphy Jappanangka

Jorna Murphy Nappangardi

Kelantyerrang

Jimmy Jones Ampetyan

3 The applicants have submitted that each landholding group is associated with a particular part of the claim area and ‘connected with’ a particular type of Dreaming.

4 The Arrawatyen group is associated with the north, central and north-east portion of the claim area. In that area there exists Travelling Boys Dreaming and Rain Dreaming, which is particularly connected to the sites Athethew (Old Police Station Waterhole) and Irrmeng. Other sites of significance to the Arrawatyen include Alarlatwerrew, Arekenyarr-Anenk, Atetyerretyerr, Irlkwamp-Irlkwamp, Kerrkety and Kwepaney.

5 The Antarrengeny group is associated with the south central and north-east portion of the claim area. In that area there exists Travelling Boys Dreaming and Rock Wallaby Dreaming which is particularly associated with the sites Irrelerrelerr and Alarlanem. Other sites of significance to the Antarrengeny group include Alarlatwerrew, Antarrengeny and Athethew.

6 The Akweranty/Anwerret group is associated with the area surrounding, and including, that part of the claim area which is the Hatches Creek township. In that area there exists Emu Dreaming which is connected with the site Anurret.

7 The Lyentyawel/Ileparranem group is associated with the south-west and central portion of the claim area. In that area there exists Sugarbag Dreaming, which is connected with the site Ileparranem.

8 The Tyaw group is associated with the south-east portion of the claim area. In that area there exists Cloud Dreaming and Echidna Dreaming which is connected with the sites Yethel and Inap respectively. Other sites of significance to the Tyaw group include Anwerret and Arepeylarr.

9 The Warwepenty group is associated with the north-central and north-west portion of the claim area. In that area there exists Iangelarr (Bush Banana) Dreaming which is connected with the site Irrmeng. Other sites of significance to the Warwepenty group include Ileparranem.

10 The Kelantyerrang group is associated with the north central portion of the claim area. In that area there exists Lizard Dreaming which is connected with the site Irreyl.

11 Notwithstanding those particular estate group based affiliations with particular parts of the claim area, the applicants contend that the entire group as identified is a recognisable Aboriginal community capable of being granted native title under the NT Act, of which the landholding or estate groups are but sub-groups with particular more local affiliations. They claim that the native title group as identified has spiritual, physical and historical associations with the claim area, by descent from ancestors or by non-descent based connections, so that they have a communal native title in the claim area.

12 The application was first lodged on 20 November 1995 with the National Native Title Tribunal (the Tribunal). At that time, the NT Act required the lodging of an application with the Tribunal and its consideration by the Registrar of the Tribunal. Pursuant to s 63 of the NT Act, as then in force, the Registrar of the Tribunal accepted the application on 31 May 1996.

13 The application was opposed. The Registrar did not proceed to make any determination pursuant to ss 70, 71 or 73 of the NT Act. Consequently, the Registrar was required to lodge the application with the Court for decision. The application was duly lodged with the Court pursuant to s 74 of the NT Act on 20 May 1998.

14 On 30 September 1998, the NT Act was amended by the Native Title Amendment Act 1998 (Cth) (the 1998 Act). The amendment repealed Pt 3 of the NT Act, which included the provisions dealing with the lodgment of applications with the Tribunal and the Tribunal’s consideration of them. The Tribunal still has significant functions to perform under Pt 6 of the NT Act.

15 In accordance with s 61 of the NT Act, the Court is now charged with hearing and determining the applications. The application was amended pursuant to orders made on 9 July 1999, 20 September 1999 and 19 March 2001. Following the amendments made in 1999, the amended application was accepted for registration pursuant to s 190A of the NT Act on 17 January 2000.

16 At the time the application was lodged with the Court, in accordance with s 84 of the NT Act as previously in force, it listed the parties to the application in addition to the applicants. It is convenient at this point to note those parties and the extent to which they have participated subsequently in the hearing and determination of the claim.

17 The Northern Territory has at all material times been a party to the proceedings and has taken part in the hearings and has made final submissions in relation to the interests of the Northern Territory and of the Conservation Land Corporation (the Corporation).

18 The Corporation is a body corporate established by s 27 of the Parks and Wildlife Commission Act (NT) (the Commission Act). Its function is to acquire, hold and dispose of real property (including any estate or interest in real property) in accordance with the Commission Act. It is not an authority or instrumentality of the Crown, and is not subject to the direction of the Minister or of the Crown: s 29 of the Commission Act, and see R v Kearney; Ex parte Japananglea (1984) 158 CLR 395 at 404. It is however a ‘statutory authority’ of the Crown as defined in s 253 of the NT Act. By virtue of Crown Lease Perpetual 01117 (CLP 1117) commencing on 30 August 1993, that is at the time CLP 1117 was granted, the Corporation became lessee over the whole of the claim area, apart from the township of Hatches Creek. It did not participate during the course of the hearing, although it made an opening statement in writing in which it made claims about the extent to which there were native title rights and interests existing over the claim area at 30 August 1993, and the extent to which any such existing native title rights and interests were extinguished by CLP 1117. The Corporation also claimed that if CLP 1117 required validation by the NT Act, its grant is a valid Category D past act under s 232 of the NT Act, which by operation of the Validation (Native Title) Act (NT) brought about extinguishment of native title rights and interests ‘to the extent of any inconsistency’. It is not necessary to refer further to those contentions at this point. The Corporation ultimately adopted the final submissions of the Northern Territory on extinguishment and made no submissions on the existence of native title over the claim area.

19 Peter and Brenda Saint (the Saints) are the pastoral leaseholders of the property known as Kurundi Station. It is a pastoral lease abutting the claim area to its north. The claim area, excluding the township of Hatches Creek, was, prior to 1993, subject to a pastoral lease held by the Saints. The pastoral lease was number 841. It covered the area previously comprised in Northern Territory Portions 716 and 1088, an area slightly in excess of 4,977 square kilometres.

20 On 26 February 1993 an agreement was entered into between the Northern Territory, the Conservation Commission of the Northern Territory (a statutory entity also established under the Commission Act) (the Commission), and the Saints whereby the Saints agreed to surrender to the Northern Territory an area of approximately 135,000 hectares in the southern section of their pastoral lease. Before the application was first lodged, the Saints had executed a partial surrender of their then pastoral lease. Notice of Determination of the grant of the lease of Crown Land by reason of that partial surrender was issued on 3 September 1993. That part of their pastoral lease which was then surrendered is the claim area, other than the township of Hatches Creek. It is now leased to the Corporation under CLP 1117. Portion 1088 was then absorbed into the new Portions 4386 and 4387, and the remainder of Portion 716 was retained by the Saints. The Saints on 1 June 1993 were granted a pastoral lease numbered 1109 over the balance remaining, now the reduced Portion 716, which abuts the claim area on its northern side. The Saints did not take part in the hearing, and on 6 September 2000 filed a Notice of Discontinuance indicating that they had no ongoing interest in the outcome of the application. They have made no submission with respect to any matters concerning it.

21 John Love (Mr Love) was also identified as a party on behalf of the Warumungu Prospectors and Leaseholders Association. Shortly after the application was lodged with the Court on 23 July 1998, Mr Love wrote indicating that he did not wish to take any part in the proceedings but made the brief submission :

‘(a) That exploration and mining be allowed within the entire area.

(b) That unfettered fossicking (as defined by the current NT Mining Act) be allowed within the entire area.’

The status of the Warumungu Prospectors and Leaseholders Association has at no time been explained. Neither Mr Love nor any other person on behalf of that Association has sought to take any part in the hearing. There were two additional parties identified in the application, namely Mr C P Eaton, and Mr and Mrs C Hall, each of whom at the time of the application had exploration licences in respect of part of the land comprising the claim area. Those persons did not take part in the hearing at all. Their exploration licences have since expired.

22 Accordingly, apart from the applicants, the parties that participated in the hearing were the Northern Territory, and to the more limited extent referred to above, the Corporation.

(1) The Hearing

23 The hearing commenced on 18 September 2001 at Alepeyewenh (more commonly known as Black Tank), a site located on the land held by the Anurrete Aboriginal Land Trust (the Anurrete ALT) south east of Hatches Creek. It was a condition of the hearing taking place at that site that the Anurrete ALT give permission to members of the public to attend. An announcement was made on CAAMA Radio and in the Advocate newspaper that the Court would be sitting at that location and that the hearing was open to the public. Members of the public did attend the hearing, except where evidence was taken in private where I made directions in accordance with ss 17(4) and 50 of the Federal Court of Australia Act 1976 (Cth) (see the discussion in relation to such orders in Western Australia v Ward (1997) 76 FCR 492 per Hill and Sundberg JJ at 499 – 502).

24 Evidence was taken at a number of sites in the claim area. The main sites visited were Athethew (Old Police Station Waterhole) which is located towards the north-east corner of the claim area, Irreyel situated near the northern boundary of the claim area, Yethel in the south-east corner of the claim area, and Irlkwamp-Irlkwamp in the north-west corner of the claim area. Gender restricted evidence was heard at Alarlatwerew in the north-east corner of the claim area and at Kwepaney, Arawekert, Antwerr-Antwerr, Yelk and Athethew. The Court also viewed a number of ceremonies performed by the applicants. After that evidence, the hearing was adjourned to enable the experts’ reports to be reviewed and revised in the light of it. The revised experts’ reports were then finalised and received into evidence. Two of the applicant’s expert witnesses and one of the Northern Territory’s witnesses were examined from 19 - 20 March 2001 at a hearing in Alice Springs.

25 A timetable was set for the exchange of written submissions. Written submissions were duly exchanged. Supplementary written submissions were exchanged following the decisions of the High Court in Western Australia v Ward (2002) 191 ALR 1; [2002] HCA 28 (Ward), and Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Yorta Yorta). At the same time as Ward was delivered, the High Court also gave judgment in Wilson v Anderson (2002) 76 ALJR 1306; [2002] HCA 29 (Wilson).

26 Apart from the on-site evidence, the bulk of the evidence comprises expert reports, public records and witness statements tendered without formal proof. The applicants’ expert reports included an extensive anthropological report prepared by Dr Craig Elliott (Dr Elliott), an historical report prepared by Dr Petronella Vaarzon-Morel (Dr Vaarzon-Morel), a genealogical report, a linguistic report prepared by Dr Harold Koch (Dr Koch), and an archaeological report prepared by Dr M A Smith (Dr Smith). Only Dr Elliott and Dr Koch were cross-examined. The anthropological report was by far the most extensive document. The Northern Territory tendered a linguistic report prepared by Professor Francesca Merlan (Prof Merlan) and an archaeological report prepared by Dr Scott Mitchell (Dr Mitchell). Neither was cross-examined. The only witness called by the Northern Territory who was cross-examined was John Bertram (Mr Bertram), who gave evidence about the circumstances in which public works were undertaken by the Department of Transport and Works of the Northern Territory in the claim area ‘as part of the establishment of the proposed park’, and the nature of those public works.

27 The Court made orders restricting the use of a site map, the genealogies, section seven of the primary anthropological report of Dr Elliott, and Appendix 1 to the supplementary statement to the archaeological report prepared by Dr Smith. That material was to be retained in the possession and control of the solicitors for the Northern Territory and counsel or professional consultants engaged in relation to the proceedings. Restrictions were also placed on the number of photocopies to be made of that material. There was no real dispute as to the appropriateness of those orders.

28 I also made orders restricting the publication of the transcript of gender restricted evidence. The ‘men only’ evidence was to be transcribed by a man and access to the transcript was to be by men only. The transcript was duly marked and kept separate from the general transcript. Orders were made in relation to the transcript of the ‘women only’ evidence to similar general effect, but it was accepted that that transcript could be available also to three nominated men representing the Northern Territory and could be transcribed by a nominated male transcriber. An agreed statement was later prepared and tendered as an exhibit which outlined the general nature of the evidence adduced during the restricted sessions.

29 The conduct of the hearing was greatly facilitated by the parties and their legal representatives. It was apparent that the Northern Territory was prepared to consent to the tendering of voluminous documentary and expert evidence, so that only the real issues were the subject of focus in evidence in chief and cross-examination. The approach of the parties made the hearing expeditious and efficient and assisted in clearly identifying the real issues for determination.

(2) The Claim Area

30 In the course of proceedings the claim area was described from time to time as the Davenport Murchison Ranges Land Claim area. Both the Davenport Ranges and the Murchison Ranges are separate ranges adjacent to the claim area.

31 The claim area comprises two separate areas of land lying to the east of the Stuart Highway and south-east of Tennant Creek. The principal claim area consists of the land in Northern Territory Portions 4386 and 4387, now the subject of CLP 1117. Portion 4386 comprises 1,120 square kilometres. The evidence indicates that that area is proposed to become a national park. Portion 4387 is a much smaller area comprising five hectares 7,800 square metres. It is on the edge of Portion 4386 towards its north-western extremity. It is proposed to be an area set aside for tourism and a camping ground. I shall call that part of the claim area comprising Portions 4386 and 4387 ‘the proposed national park’ or ‘the principal claim area’.

32 The proposed national park is to be called the Davenport Ranges National Park. The Territory Parks and Wildlife Conservation Act (NT) (the Conservation Act) provides for the declaration of a national park or reserve in certain circumstances. It is a precondition of any such notice that the Commission prepare a report in relation to the proposed park or reserve in accordance with s 14 of the Conservation Act, and after the declaration of a park or reserve the Commission is obliged under s 18 of the Conservation Act to prepare a plan of management of that park or reserve.

33 There is in evidence a document entitled ‘Proposed Davenport Range National Park Management Plan February 1998’ (the Draft Management Plan). It was prepared under the supervision of the Assistant Director of Strategic Planning and Development of the Commission. It is not a report which was prepared for the purpose of satisfying either s 14 or s 18 of the Conservation Act. There has been no declaration of the proposed national park area (excluding the township of Hatches Creek) as a national park or reserve. Its status at present is simply that of land leased to the Corporation under CLP 1117.

34 The claim area is in the south-eastern extremity of the Davenport Ranges area. The Davenport Ranges and, slightly to the north, the Murchison Ranges extend roughly in a south-easterly/north-westerly direction for approximately two hundred kilometres from a point about eighty kilometres south of Tennant Creek. At the north-western end of those ranges, they are separated by a flood plain. As those ranges run in a south-easterly direction, they merge together. The Davenport Ranges and the Murchison Ranges complex runs roughly from the Gosse River in the north-west to the Sandover River in the south-east. They are the major elevated feature of the region, with numerous outcrops, still gorges and rocky valleys. The highest point in the ranges is Mt Cairns (near the north-west area of the claim area) at about six hundred metres above sea level.

35 According to the applicants, the general area of the Davenport Ranges and the Murchison Ranges is known by the name Ithwelepenty. A number of rivers and streams emanate from the Davenport Ranges in the vicinity of the claim area, including the Elkedra River, Whistle Duck Creek, the Gastrolobium Creek, the Yantenyile Creek, Poison Creek, Canteen Creek, the Pool River, Amelia Creek, Blackfellow Creek, Tinjarli Creek, Lennee Creek and Fusselda Creek. The Davenport Ranges contain mostly reliable sources of water, including large streams with both intermittent and perennial water holes. When water reaches the end of those creeks, it floods out into the surrounding desert areas. The flood plains apparently provide high value areas for hunting and foraging.

36 The area is also significant from a conservationist viewpoint. The Draft Management Plan explains that the claim area lies within the Tanami Bioregion, which is the largest bioregion in the Northern Territory, spanning almost the entire central area from east to west. It indicates that the proposed national park will be the only major protected area within this bioregion. It will also be the only major park within the Tennant Creek District.

37 The claim area is bounded by four stations and an Aboriginal land trust. As noted earlier, it is bounded on its northern side by Kurundi Station, occupied by the Saints. On its western side, it is bounded in part by Singleton Station, and in part in the southern section of its western side by the Murray Downs Station which also abuts its south-western extremities. Both those properties run to the Stuart Highway. On the eastern section of its southern border, it is bounded by Elkedra Station. The eastern section of the claim area, as the attached plan illustrates, comprises two fingers of land surrounding an area of land owned by the Anurrete ALT.

38 Within the area of land owned by the Anurrete ALT is the second parcel of the claim area. That is a small area comprising 27.12 hectares known as Hatches Creek Township. It is vacant Crown land set apart for the proposed town site of Hatches Creek. It was never established as a township. I shall call that parcel of the claim area ‘Hatches Creek’.

39 The Anurrete ALT occupies that land, other than Hatches Creek, following a determination by the Aboriginal Land Commissioner, Justice Olney, in the Wakaya/ Alyawarre Land Claim (Report No 34, 8 May 1990). That land claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act) originally included the land which is designated Hatches Creek Township and called in this judgment Hatches Creek. In the course of that hearing, however, it was acknowledged that Hatches Creek could not be claimed under the Land Rights Act. That is because a determination under the Land Rights Act could only be made in respect of unalienated Crown land, and the definition of unalienated Crown land in s 3(1) of the Land Rights Act specifically excluded land in a ‘town’. That section also defined ‘town’ to include any area that is to be treated as a town.

40 The claim area is depicted in the plan attached to these reasons for judgment.

(3) Nearby Land Claims

41 There have been a series of claims under the Land Rights Act in respect of unalienated Crown lands in areas near the claim area which have resulted in determinations for land grants under the Land Rights Act.

42 Section 86 of the NT Act provides :

‘86 Subject to subsection 82(1), the Federal Court may:

(a) receive into evidence the transcript of evidence in any other proceedings before :

(i) the Court; or

(ii) another court; or

(iii) the NNTT; or

(iv) a recognised State/Territory body; or

(v) any other person or body;

and draw any conclusions of fact from that transcript that it thinks proper; and

(b) receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and

(c) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).’

43 Both the applicants and the Northern Territory accepted that, in accordance with s 86, I should receive into evidence on this application the reports and the transcripts of evidence in the proceedings in the following four land claims under the Land Rights Act :

Alyawarr and Kaititja Land Claim Report

(Report No 30 November 1978) of the Aboriginal Land Commissioner, Justice Toohey

Warumungu Land Claim

(Report No 31, 8 July 1998) of the Aboriginal Land Commissioner, Justice Maurice

McLaren Creek Land Claim

(Report No 32, 28 February 1990) of the Aboriginal Land Commissioner, Justice Olney, and

Wakaya/Alyawarre Land Claim

(Report No 34, 8 May 1990) of the Aboriginal Land Commissioner, Justice Olney

44 The applicants and the Northern Territory also each invited the Court, as it considered appropriate, to make use of the findings in each of those Reports. Their respective submissions also referred to parts of the transcript of evidence in those proceedings. Proceedings before the Aboriginal Land Commissioner do not fall within the descriptions in s 86(a)(i) - (iv). In view of the consensus between the applicants and the Northern Territory, I shall assume that the Aboriginal Land Commissioner is ‘any other person or body’ within the meaning of s 86(a)(v) of the NT Act. That is consistent with the approach taken by Olney J in The Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory (2000) 104 FCR 380; [2000] FCA 923 (St Vigeon).

45 The Alyawarr and Kaititja Land Claim Report related to an area of land to the immediate south of Murray Downs Station. It involved, inter alia, the Antarrengeny groups. The Warumungu Land Claim Report related to various extensive areas of land north and north-west of the claim area and north of the northern boundaries of Kurundi Station and Epenarra Station. Epenarra Station is on an area of land north of Kurundi Station towards its western side. That land granted by reason of the Warumungu Land Claim Report is mainly to the east of the Stuart Highway, to the north of the Tennant Creek and around Tennant Creek itself. It involved, inter alia, the Warwepenty, Arrawatyen and Kelantyerrang groups. The McLaren Creek Land Claim related to areas of land north-west of the claim area, extending both sides of the Stuart Highway. That land is immediately to the west of the western boundary of Kurundi Station and immediately to the north of the northern boundary of Singleton Station. It involved, inter alia, the Warwepenty and Kelantyerrang groups and the Wakurlpu group. The Wakaya/Alyawarra Land Claim involved an extensive area of land to the east and north-east of the claim area, including that area of land now held by the Anurrete ALT (as part of that grant), and extending immediately to the east of the eastern boundaries of Kurundi Station and Epenarra Station. Its southern boundary abuts part of the northern boundary of Elkedra Station. It involved, inter alia, the Arrawatyen, Akweranty/Anwerret and Tyaw groups and the Arlangkw groups. As noted earlier, initially that part of the present claim area known as Hatches Creek was included in that land claim.

46 In a general sense, the claim area now is surrounded by land held under pastoral leases under which the several station properties mentioned are conducted, except for that section held by the Anurrete ALT. Those stations are in turn partly encircled by land grants made under the Land Rights Act. There are, however, significant sections of land the subject of those land claims which were not granted. In the Wakaya/Alyawarre Land Claim Report, Olney J did not recommend that a land grant in respect of a large parcel of land to the east of Kurundi Station and Epenarra Station should be made because it had not been demonstrated in respect of that relatively barren land, that there then existed a local descent group with the characteristics required by the Land Rights Act to fulfil the criteria of the statutory definition of ‘traditional Aboriginal owners’ under that Act. The particular local descent groups are not among those relevant to this application. Similarly, in the Warumungu Land Claim Report, Maurice J did not recommend that a grant be made in respect of a portion of the claimed area immediately to the north of Epenarra Station.

47 It is necessary to have regard to the findings in those reports, and to the evidence in the proceedings to which they relate, with a little caution. That is because there is no precise correspondence between the matters required to be proved in a claim for native title under the NT Act and a claim for land rights under the Land Rights Act. The definition of ‘traditional Aboriginal owners’ in s 3(1) of the Land Rights Act includes the requirement that they be a local descent group of Aboriginals who have common spiritual affiliations, being affiliations that place that group under a primary (my emphasis) spiritual responsibility for the particular land. It is a term which does not include all those Aboriginals who may have a traditional right to use or occupy that land: cf s 71(1) of the Land Rights Act, and the discussion by Northrop, Hill and O’Loughlin JJ in Northern Land Council v Olney (1992) 34 FCR 470 at 478 - 485.

48 Nevertheless, it is significant that in those four claims under the Land Rights Act six of the seven land holding groups involved in the present application have previously been found to be the ‘traditional Aboriginal owners’ of land in the vicinity of the claim area, including that area of land now held by the Anurrete ALT which was the subject of a recommendation by Olney J in the Wakaya/Alyawarre Land Claim Report. The Hatches Creek part of the claim area is a small area of land surrounded by the land granted to the Anurrete ALT. There is every reason to think that, but for its ineligibility to be the subject of a recommendation under the Land Rights Act because it was land set aside for a township, that land would have been included in the recommendation made in that Report. In that Report, in respect of that general section of the land claimed which surrounds Hatches Creek, Olney J described the case in support of the claim as ‘overwhelming’ (par 6.20.1). The Northern Territory correctly points out that each of those determinations under the Land Rights Act involved native title rights and interests being held at the level of each of the landholding groups, rather than a more expansive community comprising several landholding groups.

49 The only claimant landholding group in this matter which was not the subject of a favourable recommendation in those Reports is the Lyentyawel-Ileparranem landholding group. It does not appear to have been a claimant landholding group in any of those four claims under the Land Rights Act.

native title

50 The main objects of the NT Act include providing for the recognition and protection of native title: s 3(a). Section 10 of the NT Act provides that native title is recognised, and protected, in accordance with the NT Act, and s 11(1) provides that native title is not able to be extinguished contrary to the Act.

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

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

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

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

52 Section 225 provides that:

‘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

(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.’

53 I do not consider it necessary to address at length the legal principles applicable to the determination of the applicants’ claim to native title over the claim area. With one significant exception, there is no real issue between the applicants and the Northern Territory about the applicable principles. The extent of their dispute is about the nature and effect of the evidence in respect of which the findings should be made. The determination of land rights in the four land rights claims referred to above, and the geographical proximity of the claim area to the land in respect of which those grants of land rights have been made, indicate that the claim area is likely to be, or to have been, the subject of native title to a significant degree. As noted, both the applicants and the Northern Territory agree that, by reason of s 86 of the NT Act, I may have such regard to the findings of the Aboriginal Land Rights Commissioners in those four matters, and to the transcripts of evidence in those four matters, as I consider appropriate.

54 In the light of the evidence, and of those determinations, the Northern Territory, whilst not conceding that some native title rights and interests continue to exist over the claim area, put its primary contentions on this aspect of the case as follows :

(a) The evidence establishes that any remaining native title rights and interests are held at the level of each of the seven landholding groups.

(b) The persons who hold the common or group rights comprising native title (the common law holders) are those Aboriginal people who are descended from the original members of the Antarrengeny, Arrawatyen, Akweranty/Anwerret, Kelantyerrang, Lyentyawel-Ileparranem, Tyaw and Warwepenty landholding groups who are recognised by the respective apmerek-artwey and kwertengerl of those landholding groups under the traditional laws acknowledged and the traditional customs observed by them as having communal or group rights and interests in relation to the estate of the landholding group.

(d) The nature and extent of other interests in relation to the claim area are those 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 claim area according to law.

55 The significant exception to the general accord between the parties as to the relevant principles to determine the existence of native title appears particularly from the Northern Territory’s contention (b) above. The applicants contend that the relevant native title community is that described in [1] and [2] of these reasons. It is that group which is said to possess customary interests in the claim area under traditional laws and under traditional customs observed by them. The Northern Territory contends that the native title rights and interests are held at the level of each of the seven separate landholding groups, rather than at the level of a more expansive community comprising the seven landholding groups or the four language or tribal groups in combination. That is, it contends that the relevant identifiable community is at the estate group level. It is convenient to address that issue when considering the evidence generally and when making findings.

56 The recognition by the common law of native title was declared in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo). At the settlement of Australia, the Crown acquired radical title to the land, rather than acquiring absolute beneficial ownership of the land. That radical title was declared to be subject to the native title of the indigenous population who then occupied the land. In Mabo, Brennan J said at 57:

‘The term “native title” conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.’

Recognition of native title by the common law does not mean that it is either an institution of the common law, or a form of common law tenure: Fejo v Northern Territory (1998) 195 CLR 96 (Fejo) per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 128. It has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title.

57 The fact that pars (a) and (b) of s 223(1) of the NT Act are based upon what Brennan J in Mabo said at 70 should not cause the Court to lose sight of the fact that this application is made under the NT Act, and it is for rights which are to be determined under the NT Act. It is the provisions of the NT Act which the Court should address in determining the application: Ward, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at 16, [16]. Their Honours then said at 16 – 17, [17] – [18]:

‘However, as indicated, the immediately relevant elements in the definition in s 223(1) of “native title” and “native title rights and interests” have remained constant. Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist “in relation to land or waters”. Thirdly, the rights and interests must have three characteristics:

(a) they are rights and interests which are “possessed under the traditional laws acknowledged, and the traditional customs observed”, by the relevant peoples;

(b) by those traditional laws and customs, the peoples “have a connection with” the land or waters in question; and

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

The NT Act was said in the majority judgment in Ward at 11 – 12, [2] to be ‘at the core’ of the claim. This point was reiterated at 19, [25]. Kirby J generally agreed with the majority judgment: see at 157, [564] – [565]. See also the remarks of Kirby J in Commonwealth of Australia v Yarmirr (2001) 75 ALJR 1582; [2001] HCA 56 at 1628-1629, [241] – [243], and of Gaudron, Gummow and Hayne JJ in Wilson at 1315, [46] and of Kirby J in Wilson at 1332, [145].

58 There has been no case law which comprehensively explains what is involved in the notion that the claimed native title rights and interests must be ‘recognised by the common law of Australia’: s 223(1)(c). See the majority judgment in Ward at 17, [20]. In this matter the parties have proceeded on the basis that it is necessary for the Court to be satisfied firstly that the claimed native title rights and interests existed in the claim area at the date of sovereignty, and secondly that the claimed native title rights and interests have not been extinguished either wholly or partly, in the manner provided for by the NT Act. Section 4(6) of the NT Act (introduced by the 1998 Act) provides:

‘This Act also confirms that many acts done before the High Court’s judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23D), the extinguishment is complete; if the acts are previous non-exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.’

The High Court decision referred to is Wik Peoples v Queensland (1996) 187 CLR 1 (Wik). As noted, the NT Act provides by s 11(1) that native title is not able to be extinguished contrary to the terms of the NT Act, and the NT Act contains extensive provisions dealing with the circumstances in which native title, which might otherwise exist, may be extinguished.

59 The parties acknowledged that, upon sovereignty, if there were then no existing native title in respect of the claim area, then the radical title of the then Crown would involve the full beneficial interest in the claim area. In Mabo Brennan J stated at 48:

‘If the land were desert and uninhabited, surely a terra nullius, the Crown would take an absolute beneficial title …’

Similarly, Deane and Gaudron JJ said at 86 that:

‘If there were lands within the Colony in relation to which no pre-existing native [title] existed, the radical title of the Crown carried with it a full and unfettered proprietary estate … Thereafter, any claim by the Aboriginal inhabitants to such lands by reason of possession or occupation after the establishment of the Colony must be justified by ordinary common law principles or presumptions.’

60 In Yarmirr v Northern Territory of Australia (1998) 156 ALR 370 (Croker Island), Olney J found that it had been shown that the land claim was connected with an indigenous group at the time of sovereignty. It was not necessary that the applicants show that it was their group that was connected with the land at the time of sovereignty. It was enough that succession to another or other Aboriginal groups after sovereignty could still satisfy the requirements of s 223(1) of the NT Act. In Ward v Western Australia (1998) 159 ALR 483 (Ward at first instance), Lee J made similar findings (not contested on appeal). His Honour said at 501:

‘It is not necessary that the indigenous community in occupation of the land at sovereignty be a community of a particular degree of organisation, only that it be a community or society sufficiently organised to be able to create and sustain rights: see Mabo (No 2) per Toohey J at CLR 187. It is not a requirement of native title that it be shown that the indigenous community had rules for defining and transmitting the rights of community members in respect of land. Native title follows from the occupation and use of land by an organised society which has a particular relationship with the land. It does not depend on proof of the existence of specific rules which govern the relationships of community members with that land: see Mabo (No 2) per Brennan J at CLR 62-63; per Toohey J at CLR 188-191. The existence of laws or customs which determined how the land was controlled or utilised may be assumed from proof that a functioning society occupied the land: see Mabo (No 2) per Toohey J at CLR 187.’

61 Of course, his Honour’s observations must be considered in the light of the majority judgment in Ward emphasising that the determination of native title is to be made in accordance with the provisions of the NT Act, and its nature and extent is to be determined also in accordance with those provisions. It will be necessary later in these reasons to consider whether the High Court in Ward imposed a somewhat more stringent test.

62 The task of ascertaining the time of sovereignty in this case is straightforward. The claim area is cut in two by the meridian 135 degrees east of Greenwich. The same circumstance confronted Olney J in Croker Island. See at 389. That is of technical moment only to consideration of the present claims. It means that the dates of sovereignty differ in respect of different parts of the claim area, namely that to the east of meridian 135E and that to its west. In Croker Island at 389, Olney J said:

‘The Letters Patent issued to Captain Arthur Phillip and read by him at Sydney Cove on 7 February 1788 defined the western limit of the territory annexed as the 135^th degree of east longitude. The commission to Governor Darling proclaimed on his assumption of the administration of New South Wales on 20 December 1825 substituted the meridian of 129 degrees east longitude for the meridian of 135 degrees east longitude as the western boundary of New South Wales.’

63 Consequently, the applicants submit, and I accept, that the relevant date at which sovereignty in respect of the claim area was established is 1788 for the area to the east of meridian 135 degrees east, and 1825 for the area to the west of meridian 135 degrees east. The respondents did not gainsay that proposition. As in Croker Island, in practical terms I do not think that the different dates upon which sovereignty was established over the claim area are of significance in determining the native title claim. There was no European entry into the claim area or its environs until after 1825. There is nothing to indicate that the nature of indigenous use of the claim area, or areas around the claim area, altered in any way of significance to the present application between 1788 and 1825. However, it will be necessary to address the evidence generally on that topic when making findings.

64 As the majority judgment in Ward states in the passages referred to above, the Court must make separate inquiries as to the rights and interests possessed under traditional laws and customs, and then as to the connection with land or water in the claim area by those laws and customs. The NT Act is not directed to the recognition and maintenance of culture and knowledge of native title holders, except to the extent that it is possessed under the traditional laws acknowledged and the traditional customs observed by the claimant peoples, and then only if those laws and customs have a connection with the land or waters constituting the claim area.

(1) The Applicants’ Claims

65 In the first place it is convenient to note more fully the applicants’ claim as to who constitutes the native title claim group, that is, the persons who are claimed to hold the communal or group rights comprising the native title. The applicants’ final submission describes them in the following terms:

‘The persons who hold the communal or group rights comprising the native title as common law holders are the Aboriginal persons who are:

(a) members of one or more of the seven landholding groups (Arrawtyen, Antarrengeny, Akweranty/Anwerret, Lyentyawel Ileparanem, Tyaw, Warwepenty and Kelantyerrang) by virtue of descent through his or her father’s father, father’s mother, mother’s father and mother’s mother; or

(b) recognised, by the persons referred to in sub-paragraph (a) hereof, as members of one or more of the seven landholding groups by virtue of non-descent based connections, including adoption or birthplace affiliation;

(c) members of other landholding groups that are neighbouring or closely related to one or more of the seven landholding groups and are recognised, by the persons referred to in sub-paragraph (a) hereof, as having native title rights and interests in the determination area; or

(d) spouses of persons referred to in sub-paragraphs (a), (b) or (c) and are recognised, by the persons referred to in sub-paragraph (a) hereof, as having native title rights and interests in the determination area.’

66 The proposed determination then describes the rights and interests in the claim area of those persons under their traditional laws acknowledged and customs observed. They are expressed in the proposed determination as follows:

‘The rights and interests of the common law holders in the land and waters of their respective landholding groups, possessed under their traditional laws and customs, are:

(a) ownership of the land and waters;

(b) the right to speak for and make decisions about the land and waters;

(d) the right to hunt, fish, gather and use the natural resources of the land and waters and to give or refuse permission to do so by non-landholding group members;

(e) the right to maintain and protect places and areas of importance on or in the land and waters and to care for and manage the ‘country’ and its spiritual attributes;

(f) the right to acquire, safeguard and transmit cultural and religious knowledge, practices and objects associated with the land and waters;

(g) the right to bestow on non-landholding group members rights or entitlements in relation to the land or waters; and

(h) the right to resolve disputes concerning the use of land and waters or the content of the customary laws which define rights in relation to them.’

As explained in [68] below, this description does not represent the rights and interests in respect of which the applicants seek a determination of native title. It is a step along the way.

67 The rights to possess, occupy, use and enjoy the land and waters comprising the claim area in respect of which a determination of native title is sought, are (subject to extinguishment issues) expressed as:

‘Subject to paragraphs 5, 6 and 7, the nature and extent of the native title rights and interests recognised by the common law in relation to the determination area are rights to possess, occupy, use and enjoy the land and waters. The incidents of that entitlement are the rights set out below, including the right to conduct activities incidental to them:

(a) the right to hunt and fish, to gather and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax and to have access to and use of water on or in the land;

(b) the right to live on the land, to camp, erect shelters and other structures and to travel over and visit any part of the land and waters;

(d) the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements;

(g) the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters;

(i) the right to determine and regulate the membership of and recruitment to a landholding group;

(j) the right as against the whole world, including any other Aboriginal group or person, to assert and to be acknowledged as the Aboriginal owners of the land and waters in accordance with traditional laws and customs.’

The applicants acknowledge that no native title rights and interests in relation to minerals and petroleum as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT) respectively have been established. A similar acknowledgment was made in Ward: see at 113, [382] and 130, [461] in the majority judgment, where their Honours noted, when discussing extinguishment, that there was no evidence of any traditional Aboriginal law or custom with respect to minerals or other substances covered by that legislation. The applicants contend that ochre is not a mineral as defined in the Minerals (Acquisition) Act (NT), and maintain a right to access ochre from the claim area, as included in (a) above.

68 The Northern Territory contends that any determination of native title rights and interests in respect of the claim area should not be expressed in the terms of the proposed determination as set out in [66] above. The applicants do not say that the part of the proposed determination set out in [66] represents the native title rights and interests which are recognised by the common law: see s 223(1)(c) of the NT Act. The claimed rights are those set out in [67] above. For the purposes of identifying and addressing the issues about whether the claimed native title rights and interests exist (but for their extinguishment) and whether they have been extinguished, it is necessary therefore to focus on the expression of those claimed rights as set out in [67]. Whether any proposed determination of native title rights and interests should be made, including the sort of expression set out in [66], is deferred until it has been determined whether a determination about the claimed native title rights and interests should be made. It relates more to the form of the proposed determination.

69 Before turning to a more detailed consideration of the evidence, and making my findings, I should note that the claim area is relatively small in size and contains only a small proportion of the country of the seven landholding groups. I do not think the applicants’ claims in this matter can be viewed in isolation. The recognition of native title under the NT Act is constrained by limitations, including by way of extinguishment. Native title need not be asserted in respect of areas where there has been a previous determination of an entitlement to a grant of land under the Land Rights Act. Consequently, a claim area for a determination of native title under the NT Act may not reflect the full geographical range of what a particular native title claim group might claim or regard as its traditional area. It would be quite common that, in the case of applications for determination of native title, the application may relate to a portion of land which is within the limits of traditional country according to Aboriginal law and custom. Such, I think, is the circumstance in the present matter. Consequently, on the hearing I admitted evidence relevant to determination of the application even though in part it related to evidence of areas close to, but not included within, the claim area. French J adopted a similar procedure in Re Waanyi People’s Application (1995) 129 ALR 100, in particular at 133-134.

(2) The Positions of the Parties

70 It is the applicants’ case that, as a matter of customary law, their claimed native title rights are exclusive. However, they acknowledge that the NT Act as explained in Ward effectively means that the grant of a valid pastoral lease destroys the exclusive character of native title rights and interests existing prior to the grant to the extent of the rights granted under that lease.

71 The applicants contend that at the time of sovereignty the claim area was occupied by indigenous people who constituted an organised society. This proposition is said to be supported both by anthropological reports and by historical evidence. They claim that, at least at and from sovereignty (either 1788 or 1825), their ancestors and themselves have maintained contact with the claim area by living there and working in the Hatches Creek area, living and working on cattle stations, living on country granted to them under the Land Rights Act, and through the ongoing performance of ceremonies of which the travels and activities of Dreamtime ancestors are celebrated and which involve songs that relate to the travel paths of those ancestors.

72 They also contend that there are dense links between the seven landholding groups arising out of mythological connections, multilingualism, inter-marriage, shared residential and working history, joint ceremonial involvement and the facts of shared social history. Hence they contend that the seven landholding groups are in fact a composite communal landholding native title group. The major links between the landholding groups are that they are subject to the one Aboriginal traditional law and that they operate within a common social universe. This approach is said to accord with that adopted by Lee J in Ward at first instance. They contend that through the continual observations of their traditional laws and traditional customs they have continued to have a substantial connection with the land which is the claim area. The nature of that connection is reflected in the proposed determination referred to in [67] above.

73 The Northern Territory contested that the applicants comprise a single community of native title holders, and says that such native title rights and interests as may exist are held at the level of the individual landholding groups. It contends that evidence shows that, within the claim area, there are ‘handover points’ at which different language groups assume different responsibility for parts of the claim area so that persons entitled to exercise rights and interests over the claim area vary from one landholding group to another.

74 As it is necessary for the acknowledgment and observance of traditional laws and traditional customs to have continued substantially uninterrupted since sovereignty, the requirement is that the communal native title holders must exist ‘as a body united by its acknowledgment and observance of the laws and customs’: Yorta Yorta at [89]. The Northern Territory accepts that there has been physical connection of Aboriginal people with the claim area over a long time. It accepts that in this instance the Court may well be able to draw inferences of continued connections since sovereignty, irrespective of gaps in the historical timeline. Its submission points out that, while the expert evidence adduced on behalf of the applicants establishes that parts of the claim area have been occupied by unidentified Aboriginal people at least since the 1860s, it does not establish that the present claimant group are descended from the original inhabitants of the area at the time of sovereignty or at the time of first European contact. It nevertheless accepts that it is a reasonable inference for the Court to draw that the present claimant group (however properly identified) is or are descended from the original inhabitants of the area at the time of sovereignty and at the time of first European contact. Whilst the expert evidence relied upon by the applicants does not establish that the original landholding groups of the areas were an identifiable community and an organised society under traditional laws and traditional customs, it also accepts that it would be a reasonable inference for the Court to so conclude.

75 Hence, the first respondent disputes the existence of native title in the claimed native title claim group in the claim area. It was contended that the proposed Alyawarra, Kaytetye, Warumungu and Wakaya community was not a traditional entity possessing native title, but was instead a recently formed group not connected in accordance with traditional laws and traditional customs of previous indigenous inhabitants.

76 There are also issues as to the nature and extent of any native title rights and interests that may arise from a marriage to a member of the landholding group, or that may arise from birth on country.

77 There is also an issue as to the content of the applicants’ native title rights and interests, however the native title landholding group may be discerned. It is reflected in the contentions of the first respondent in its proposed alternative determination. Its proposed determination was that the native title rights and interests are as follows:

‘Subject to paragraphs 4, 5, 6 and 7:

(1) the nature and extent of the native title rights and interests in relation to the determination area are:

(a) The right to have access to and reside upon any of the land and waters;

(b) The right to use and enjoy the resources of the land and waters;

(d) For the avoidance of doubt:

(i) the rights listed in subparagraphs (a) to (c) above include the right to make decisions about the matters referred to therein;

(ii) the right listed in subparagraph (b) includes the right to use and enjoy ochre found in the determination area.

(2) The native title rights and interests set out in paragraph 3(1) are exercisable in accordance with the traditional laws and customs of the common law holders.

(3) The native title rights and interests set out in paragraph 3(1) do not confer possession, occupation, use and enjoy [sic] of the determination on the common law holders to the exclusion of all others.’

The proposed determination does not define the extent of those competing uses.

78 The Northern Territory also asked the Court carefully to consider the quality of the evidence demonstrating connection to the claim area. It submitted that if a line is not drawn, the connection requirement will be reduced to the lowest common denominator.

(3) The Witnesses

79 Substantial evidence was given by nearly 30 Aboriginal persons. They variously gave evidence as to the respective genealogical structures of each of the seven landholding groups, as to the interactions between those groups, and as to the nature of the native title claim group and its community. Evidence was given largely at the principal hearing site on land of the Anurrete ALT at Black Tank, as well as at sites visited during the hearing, about Aboriginal laws and customs observed by them and by others in relation to the claim area and in relation to areas surrounding the claim area.

80 Overall I have no hesitation in accepting the evidence of those persons. I am satisfied that each gave evidence frankly and honestly. There was nothing in the demeanour of any of them to indicate prevarication or exaggeration. The demeanour of course varied. Some persons were forthright and communicative. Some were less so. Some were more effusive when giving evidence at particular locations at which evidence was given. Some were quietly spoken or more diffident. In general, more graphic and descriptive evidence was given at ‘on country’ sites. The variations in the witnesses reflect, in my view, different personalities and different degrees of knowledge and where each witness fitted into the communal group (I use that term loosely for the time being). All were straightforward and convincing. They all add up to a patchwork of coherent and credible evidence. The respondent did not submit that I should reject any of that evidence.

81 Inevitably, given the nature of the case, the evidence given rested in part upon the personal observations and experience of each witness and in many respects in part upon what the particular witness had been told by parents or by other persons of a prior generation. To an extent, those past anecdotal experiences were confirmed by activities which they had subsequently inherited and adopted.

82 Evidence was given by four experts on behalf of the applicants. Anthropological reports prepared by Dr Elliott were adduced in evidence and he gave some viva voce evidence. An historical report was presented by Dr Vaarzon-Morel. Her report was unchallenged and uncontradicted. She was not cross-examined. Much of the background to her report was confirmed in the documents presented by Dr Warden (Biographic Notes, Select List 1889-2000). I accept her evidence in its entirety and the accuracy of the information produced by Dr Warden.

83 Linguistic evidence was given by Dr Koch. He was asked to address the current and historical linguistic inter-relationships in the claim area and surrounding regions, the historical development and divergence of current languages from a proto-language or languages, the extent of linguistic inter-penetration between the four languages of the claim group and a summary of the changes (if any) in these characteristics as a result of historical and demographic adjustments since European contact. He interpreted his brief, as he said, as addressing the genealogical (i.e. family-like) relations between the languages, contact-induced change (borrowing, copying of words and features), and multi-lingualism and possible language shift of the people associated with the lands. Dr Koch’s first report was reviewed in a report tendered by the Northern Territory and provided by Prof Merlan, a qualified linguist and anthropologist. She was asked to provide an assessment of the utility of the findings of Dr Koch in relation to establishing the native title applicants as a group holding native title rights in the application area, and to comment upon the sources which he had used. Her introductory summary commences in the following terms:

‘Harold Koch is an expert in matters of historical and comparative linguistic analysis, with long-term relevant experience with languages concerned in this native title application. His conclusions with respect to those linguistic matters are unexceptionable.’

84 She noted, however, that in certain places in his report Dr Koch appears to disavow the relevance of the linguistic, or more broadly, language material to the present native title application and at other points asserts that it is on the basis of membership in lineages that individuals claim rights to land, and that a dimension of biological descent is relevant to the native title applications. Prof Merlan did not give evidence. Dr Koch was asked to give evidence and was cross-examined. In his cross-examination, Dr Koch acknowledged there was some overlap or crossing between the views he had expressed based upon language as the defining characteristic of the claim group, and lineage. That is, to the extent that it was significant, he accepted the comments of Prof Merlan to the effect that there may not be a real issue between the relative significance of language and lineage, but he was not challenged ultimately to resile from his fundamental conclusions. I consider he was responsive in his oral evidence. I have no reason not to accept generally the evidence which he gave. I do not think the comments of Prof Merlan about particular features or passages in his report detract from his general conclusions. Counsel for the Northern Territory did not submit that I should not pay due regard to his evidence.

85 Evidence was also given of archaeological investigations conducted by Dr Smith. His report was the subject of review by Dr Mitchell, whose report was also tendered in evidence. Dr Smith prepared a supplementary report commenting upon Dr Mitchell’s report. Neither witness was cross-examined. The supplementary report of Dr Smith responded to a number of the matters raised by Dr Mitchell. Dr Mitchell had been somewhat critical of certain of the findings expressed by Dr Smith, partly as to his estimates of the age of sites, and partly due to a lack of primary specific references to support a number of his statements. However, as Dr Smith pointed out in his responsive report, Dr Mitchell accepted that the Aboriginal occupants of the claim area have a continuing association with the claim area through knowledge and maintenance of significant places. Dr Mitchell also accepted that they continue to actively maintain and repair some archaeological sites such as stone arrangements, although some sites were occupied in the recent past by the applicants or the applicants’ parents. There was also agreement between the two archaeologists that the Aboriginal claimants retain a considerable body of knowledge about archaeological sites in the claim area, and that they retain knowledge of traditional cultural practices such as stone artefact procurement and hunting and gathering. Dr Smith identified that the main area of disagreement between Dr Mitchell and himself concerned the extent of evidence of Aboriginal use of the claim area prior to 1788. Dr Mitchell was of the view that it had not been demonstrated, although he did not discount the possibility that some of the sites described in Dr Smith’s archaeological report have been occupied by Aboriginal people prior to 1788. The disagreement is about the quality of the material to support Dr Smith’s conclusions rather than the validity of his conclusions. For instance, Prof Merlan, in the course of her report in relation to Dr Koch’s conclusions on historical and comparative linguistic matters, said that the historical and comparative linguistic data (either alone or in conjunction with other data) enabled an expert linguist to draw inferences about the development of the particular languages in the claim area or elsewhere. She commented:

‘If one can make such inferences, it strongly supports the view that speakers of these languages were in the area long before settler colonisation. I do not, however, consider the relevance of such a question likely to be central to the matter at hand, and I assume that hardly anyone questions the presence of Aboriginal people in the area under claim at considerable time depth.’

86 Dr Smith pointed out that the difference between himself and Dr Mitchell as to the age of certain archaeological features observed by him is one of degree of proof, and he also pointed out that Dr Mitchell imposed the necessity for the use of absolute radiocarbon dating (which was not carried out). It is not a matter where Dr Mitchell asserted a different conclusion, but simply a lack of conclusive evidence on the material Dr Smith relied upon to reach the conclusion that certain of the archaeological remains in the claim area are pre-contact in age. Dr Smith also pointed out that much of the additional information which Dr Mitchell suggested might have been procured to verify Dr Smith’s conclusions could not practically have been carried out in the time available or without very considerable resources. He also indicated that the lack of documentation concerning individual sites identified in his report is not by reason of a lack of such documentation, but the result of its removal from a public report to reflect the wishes of the applicants. He offered confirmation of the availability of that material.

87 When Dr Mitchell’s report was tendered, I raised with counsel for the Northern Territory how I should resolve any disputes between Dr Smith and Dr Mitchell. Counsel for the Northern Territory indicated at the time that, at best, the end result might be that I should regard Dr Smith’s evidence as inconclusive. If that were to be so, it was necessary (as counsel acknowledged) that submissions should be made on the respects in which I should not act on Dr Smith’s evidence. Subsequently no detailed submissions were put on behalf of the Northern Territory to that effect. In those circumstances, in my view it is appropriate to act generally upon the evidence of Dr Smith. I propose to do so. Where there is a criticism in relation to his finding that there is archaeological evidence of Aboriginal occupation of the claim area and surrounding areas pre 1788, I think in any event his views are confirmed by inference from other material. Where there is a criticism that his report fails to identify, in the way that it may have done, primary documentary and personal statement references to source his material, I note that he has offered to identify that material. He was not cross-examined in relation to that assertion. I accept that it is available to him. Otherwise, it seems to me, the dispute between Dr Smith and Dr Mitchell is one of relatively minor degree. I treat Dr Smith’s evidence with a little caution because of the reservations which Dr Mitchell raised, but generally speaking I have accepted his evidence and have proceeded on the basis of it.

88 Dr Elliott provided an initial archaeological report, and a supplementary archaeological report following the evidence given by the Aboriginal witnesses. He also gave oral evidence, including being cross-examined. During his cross-examination, he did not resile from any of the views which he expressed in his reports or in his oral examination. He gave his evidence cogently and forcefully. I see no reason not to accept his evidence.

89 Of course, what is central to the claim is the evidence of the Aboriginal witnesses. As has been expressed elsewhere, anthropological evidence may provide a framework for understanding the primary evidence of Aboriginal witnesses in respect of the acknowledgment and observance of traditional laws, customs and practices: per Lee J in Ward at first instance at 531. Not only may anthropological evidence observe and record matters relevant to informing the Court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.

(4) Connection with the Claim Area at Sovereignty

90 Unfortunately, there has been little archaeological study conducted in the claim area. Dr Smith introduces his report with the following remarks:

‘There has been no systematic or sustained archaeological research in the Davenport and Murchison Ranges. The little work that has been done suggests that the application area is part of a region containing a range of archaeological evidence for pre-contact occupation. Ethno-archaeological research with Alyawarr people, south east of the application area in the 1970s and 80s shows that detailed knowledge of traditional resource use exists in this area.’

He also observes:

‘… the area does not favour the preservation of ancient archaeological remains. The local geology does not often lead to the formation of rock shelters or caves. Valley fills are stony, while the sandy alluvial soils on the flats are shallow and subject to disturbance by scouring by floodwater, disturbance by animals and people. Secondly, the area represents only part of a cultural and economic landscape. The major focus of pre-historic occupation is likely to have been around the large waterholes, which form where the rivers and streams debouch from the range onto the surrounding red soil claims. Most of these localities lie outside the boundaries of the claim area.’

91 In an attempt to compensate for such deficiencies, Dr Smith visited the claim area for one week only of field work. He visited many sites in the claim area and analysed artefacts ranging from rock painting through to tools. For the reasons already given, I do not need to refer in detail to the report of Dr Mitchell, partly critical of features of Dr Smith’s report. As I indicated, I treat the views of Dr Smith as to the age of certain paintings and other artefacts as being estimates only. They do not directly establish that the claim area has been occupied by Aboriginal people at least pre-contact.

92 It is convenient to start by looking at a much wider geographic perspective. There have been numerous archaeological studies in various parts of central Australia. The first was RA Gould’s excavation of the Puntujarpa rock shelter, near Warburton in the western desert between 1967 and 1970. It has been established that rock shelter sites across the arid zone in the central region of Australia were being used by human groups up to 35,000 years ago. There is also evidence that between 10,000 and 12,000 years ago, there was occupation of several sites throughout the arid zone including Walga Rock in the Murchison region, Purujarpa in the Warburton area and at both Puritjarra and Kulpi Maru in western central Australia. The thrust of the studies confirms that Aboriginals have occupied central Australia since at least 35,000 years ago.

93 In the light of these studies, Dr Smith estimates that the claim area itself has been occupied by Aboriginals for over 20,000 years. Although Dr Mitchell acknowledges this may be possible, he has pointed out the absence of direct evidence to confirm this estimate. Dr Smith has explained in response that:

‘… the claim area is a comparatively well-watered part of central Australia and there are no physical barriers to its use once people are in the region. Given the fact that more marginal parts of central Australia were occupied by at least 20,000 years ago, it is likely that the claim area was also used by people at this time.’

94 The registers maintained by the Northern Territory Museum do not record any extensive field work conducted in the claim area in the past. It records no archaeological sites or engraving sites in the Davenport or Murchison Ranges. In October 1984, a geologist working for the Northern Territory Department of Mines and Energy reported a panel of very weathered rock engravings at the eastern end of the Davenport Ranges, about 20 kilometres east of Bull Creek Bore. An archaeologist employed by the Heritage Unit of the Northern Territory Department of Lands, Planning and Environment, carried out a brief inspection of the areas in the proposed national park. That work identified stone artefacts along Whistle Duck Creek and at Old Police Station Waterhole. That work led to the Draft Management Plan in February 1988.

95 In addition, Dr Smith found in the claim area rock engravings, rock paintings, stone arrangements, quarries and occupation sites. He found rock engravings at Kwepaney and Apemerey. He found that some appeared to be fresh whereas others were ‘deeply weathered pecked engravings’. He asserts that Kwepaney is the oldest of the sites, with the rock engravings being at least several thousand years old and providing clear evidence of pre-historic use of the claim area. Despite Dr Mitchell’s critique of that assessment, as failing to take into account variables such as climactic conditions, Dr Smith has adhered to it in his supplementary report. Dr Smith points out that climactic conditions have remained constant over time and that microclimactic conditions in the structure of the underlying rock are identical across the rock art site as a whole. He also asserts that further studies to confirm his assessment are unnecessary as ‘superimposition of fresher engravings over more patinated engravings shows that the more patinated engravings are earlier features’. Whilst it is unnecessary to determine the age of the rock engravings at Kwepaney, in my view it is likely that they date back to a considerable time before sovereignty. However, this piece of evidence alone does not substantiate the applicants’ case that there was Aboriginal occupation of the claim area prior to 1788 (or prior to 1825 for that part of the claim area to the west of meridian 135 degrees east).

96 Dr Smith also found rock paintings at Kerrkety and Alarlatwerew. They are in poor condition, and it is not possible to conclude that they existed pre-sovereignty.

97 However, there are significant other archaeological artefacts which, in my view, Dr Smith has correctly identified as indicating pre-sovereignty occupation of the claim area.

98 Dr Smith found stone arrangements at Wak, Ileparranem and Aweyernem and occupation sites and surface scatters of stone artefacts at Ntintyaranengk, Irlkwamp-Irlkwamp, Kerrkety, Alkentyalr, Wakel, Ayleparlehelew, Rwarrankany, Athethew and Karpant-Karpan. Many of the stone arrangements contain curated features, apparently maintained by Aboriginal people. In the Anurrete ALT area, there is a quartzite quarry that has apparently been used to produce stone blades and large plates or knives. At Intyaranyengk, there is a stone arrangement that the applicants restore from time to time using traditional methods. Dr Smith regarded a number of those sites as existing at least pre-sovereignty, although it is impossible to estimate their age with any precision. On the basis of his experience and observations, I think it is likely that a number of those stone arrangements do have pre-contact existence, and by inference, pre-sovereignty existence.

99 The majority of sites reported have apparently been maintained by Aboriginals over time. This is their way of looking after their country. The evidence is that Aboriginal groups believe that the sites were part of the Dreaming and so were the product of non-human agency.

100 I do not regard the evidence of Dr Smith as sufficient to conclude, by itself, that Aboriginals occupied the claim area pre-sovereignty. It does firmly indicate that there is archaeological material demonstrating Aboriginal contact in the claim area over a considerable period of time. The Northern Territory, in its written submission, acknowledged that Dr Smith’s evidence ‘establishes that parts of the claim area have been occupied some time in the past’. The Northern Territory, while pointing out that that does not establish that the present claimant groups are descended from the original inhabitants of the area at the time of sovereignty or first European contact, accepted nevertheless that the available material permits a reasonable inference that the present communities are descended from the original inhabitants of the region in the sense that there is ‘a substantial degree of ancestral connection’ between the present community and the original community: Western Australia v Ward (2000) 99 FCR 316 (Ward in the Full Court) at 379, [232].

101 I regard that evidence as supporting the inference that the present claimant groups or group (however defined) are (or is) descended from the original inhabitants of the region. I consider there is sufficient evidence to conclude a substantial degree of ancestral connection between the present claim group or estate groups and the community or communities which existed in the claim area at the time of sovereignty. The Draft Management Plan of February 1998 prepared by officers of the Commission includes the following:

‘Archaeological material found in the proposed park area indicates Aboriginal associations extending back many generations. This archaeological material is found mainly along the more significant creek lines and flats in the proposed park.’

102 The inference which I propose to draw is confirmed by the historical evidence as to contact by Europeans with Aboriginals in the claim area. The earliest record of European contact with Aboriginals in the claim area is that of John McDouall Stuart, who set foot in central Australia in 1860. He attempted to cross central Australia on three occasions. His third attempt was successful. During his journeys he observed many signs of Aboriginal occupation in and around the claim area, which he noted in his published journal Explorations in Australia: The Journals of John McDouall Stuart during the years 1858, 1859, 1860, 1861 & 1862. He observed ‘native tracks’, and smoke signs (although some of these sightings may have been from random bushfires), and he encountered Aboriginals on several occasions. He also observed traditional tools, and what seemed to be sophisticated sign language techniques. He observed native graves. After being attacked by some Aboriginals at the eponymously named Attack Creek, he thereafter tried to avoid further contact with Aboriginals. During his journey through the Murchison Ranges he saw the ‘smoke of native encampments on and about the creek’. He also sighted native graves at several locations including the creek that he named ‘Barker Creek’. When camping within a mile of the Murchison Range, he noted gum trees that were stripped of their bark. Dr Vaarzon-Morel comments that the bark of trees stripped in such ways were used for making different types of Aboriginal artefacts, such as water and food containers, baby carriers, boomerangs, shields and spear throwers. Stuart’s first journey through the claim area was slightly to its west through Kaytetye, Alyawarr and Warumung country travelling north, and he returned only a few weeks later. His subsequent journeys in 1861 and 1862 (the successful attempt to cross the continent from south to north) also passed close to the claim area. Dr Vaarzon-Morel concludes that:

‘Stuart’s journal accounts provide clear evidence of Aboriginal occupation and use of resources in the application area during the early 1860s.’

103 Europeans were next present in the region of the claim area some 10 years later, during the construction of the overland telegraph line from Port Augusta to Port Darwin in 1871-1872. The construction teams encountered Aboriginals on several occasions. There are also other numerous accounts of travels through the region and encounters with Aboriginals in the years following 1860. For present purposes, the significance of those accounts lies in the observations of Aboriginals in the claim area or in the region of the claim area in what would seem to be organised community groups. I do not think it is necessary to refer in further detail to the historical evidence. The first respondent acknowledges in its written submission:

‘The expert evidence relied upon by the applicants establishes that parts of the claim area have been occupied by unidentified Aboriginal people at least since the 1860s. While it does not establish that the present claimant groups are descended from the original inhabitants of the area at the time of sovereignty or first European contact, the first respondent accepts that this is a reasonable inference.

Similarly, while the expert evidence relied upon by the applicants does not establish that the original landholding groups of the area were an identifiable community and organised society under traditional laws and customs, the first respondent accepts that this is a reasonable inference.’

104 I am prepared to draw each of those inferences. I conclude, adopting Dr Smith’s conclusion, as follows:

‘Given the archaeological evidence for widespread Aboriginal use of arid Australia, by at least 20,000 years ago, in taking into account that the Davenport and Murchison Ranges are one of the best watered parts of central Australia, it is likely that the application area would have been occupied by … 1788.’ (Dr Smith concludes the occupation was some 20,000 years ago.)

105 Furthermore, in addition to the historical information to which reference has already been made, subsequent observations made by Europeans passing through the claim area and areas adjacent to the claim area in the latter decades of the 19^th century confirm that picture. It seems to me to be plain that there is a very substantial body of evidence to the effect that, at that time of first contact and for decades thereafter, the claim area was occupied by Aboriginal persons of an identifiable community and organised society, and that they were present upon and used the claim area at the time of first contact in accordance with traditional laws and traditional customs observed by them.

106 That is consistent with the Draft Management Plan, which includes the following:

‘The Davenport Range marks the approximate junction between the Kaitidch, Warumungu, Alyawarra and Wogaia. The Aboriginal custodians have a strong custodial association with the region particularly in relation to the protection of sites and law…

Anthropological evidence suggests that people of the Alyawarra, Warumungu and Kaytetye language groups have had a long association with this region, and particularly with the proposed park area, as it contains a large proportion of the region’s waterholes. There is much physical evidence of “old time” use of the area and a large number of significant sites. By Aboriginal Law, Aboriginal people have responsibility to look after country and sites.’

107 It is likely that Aboriginal presence upon, and occupation and use of, the claim area has not been uniform at or since first contact, and for the reasons given since sovereignty (whether 1788 or 1825), as it has been influenced no doubt by seasonal factors such as the availability of water and other resources, ceremonial obligations, and more recently the presence or absence of Europeans and other factors.

108 I am satisfied that native title rights and interests in the claim area and surrounding areas existed at the time of sovereignty and that the land was not terra nullius. I am also satisfied that at the time of contact, and by inference the time of sovereignty, the Aboriginal occupants of the claim area were members of an organised society. Apart from the material to which I have already referred, the ethnographic work undertaken in the claim area by Spencer and Gillen in 1901 confirms that. They observed the use of spears, shields, boomerangs, vessels for carrying water and food, stone knives, necklets made of animal fur, head rings and human hair string. They observed the existence of customs related to both burial and mourning, including both tree burial and burial in the ground. They reported upon the belief in various Dreamtime ancestors or totems who created the landscape. They observed the performance of complex associated rituals, at least some of which had the purpose of increasing the supply of the food species concerned, and some involved elaborate body decoration with down and ochre and the wearing of such items as headdresses, pearl shaped ornaments and the like and in which the performer was the reincarnation of the Dreamtime ancestor. They observed the practice of initiation and circumcision ceremonies, which they described as being of ‘primary importance’. They observed the existence of sacred objects or Churinga (Atywerreng) made of either stone or wood. They commented upon the existence of named moieties, the ceremonial role of persons of the opposite moiety, and the existence of gender-based restrictions in respect of information and places. They recorded the existence of what Gillen referred to as a ‘class system’, the role of classifactory siblings, the existence of marriage rules, a rule for the descent of leadership, interrelationship of different groups, and the existence of territoriality. See generally ‘Gillen’s Diary, The Camp Jottings of FJ Gillen on the Spencer and Gillen Expedition Across Australia 1901-1902’. It was but part of the extensive ethnographic material, as well as his own research, upon which Mr Elliott formed his anthropological opinions.

109 The difficulty of proof confronting the applicants has been addressed by Kirby J in Mason v Tritton (1994) 34 NSWLR 572 at 588-589. His Honour said:

‘In the nature of Aboriginal society, their many deprivations and disadvantages following European settlement of Australia and the limited record keeping of the earliest days, it is next to impossible to expect that Aboriginal Australians will ever be able to prove, by recorded details, their precise genealogy back to the time before 1788. In these circumstances, it would be unreasonable and unrealistic for the common law of Australia to demand such proof for the establishment of a claim to native title. The common law, being the creation of reason, typically rejects unrealistic and unreasonable principles. If, therefore, in this case the only problem for the appellant had been that of extending the proved use of land by his Aboriginal forebears from the 1880s back to the time before 1788, I would have been willing to draw the inference asked. In more traditional Aboriginal communities the inference will be quite easily drawn. But, even in this case, it would seem to be commonsense to draw it.’

110 In this instance, in my view, the preponderance and weight of the available evidence, and the absence of any contradictory evidence, enables me firmly to draw the view that the ancestors of the present applicant group or groups were the indigenous inhabitants of the claim area at least for a period of time prior to first European contact with the first area, and in particular prior to the acquisition of sovereignty (be it in 1825 or 1788). I further infer that those ancestors and their descendants have inhabited the claim area continuously at least to the time of recorded European contact. See generally: Croker Island per Olney J at 406, Yorta Yorta at first instance per Olney J: Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 at [25], and Ward at first instance per Lee J at 514. I infer that Aboriginal people were present upon and occupied the claim area at the date of sovereignty in a manner similar to that observed at first contact. I infer that the aspects of traditional law and traditional custom observed by Spencer and Gillen in 1901 were also in operation at the date of sovereignty and before that time. There is a high degree of likelihood that this is so when one considers the intricacy of the system and the almost complete absence of European contact prior to 1871.

(5) Connection with the Claim Area since Sovereignty

111 It is clear that, by reason of s 223(1)(a) and (b) of the NT Act, the traditional laws and traditional customs concerned must predate sovereignty, and in the words of the majority judgment in Yorta Yorta at [47], must have had ‘a continuous existence and vitality’ since sovereignty. The society or group which acknowledges those laws and customs must have continued to exist as a group acknowledging and observing those laws and customs since sovereignty: Yorta Yorta at [50]. The necessary rights and customs must be ‘rooted in pre-sovereignty traditional law and custom’: Yorta Yorta at [53]. It is recognised in that case that laws and customs may adapt and change, as indeed is inevitable by exposure to European contact and experience, but the laws and customs must nevertheless still be seen as ‘traditional’. Yorta Yorta at [87] – [89] said in substance, adopting the words of the submission of the Northern Territory, that acknowledgment and observance of traditional laws and customs must have continued substantially uninterrupted since sovereignty. The use of the qualification ‘substantial’ is to recognise the profound effects of European settlement on Aboriginal societies. However, it is still necessary that the Aboriginal society under whose laws and customs native title rights and interests are said to be possessed must have continued to exist since sovereignty ‘as a body united by its acknowledgment and observance of the laws and customs’: Yorta Yorta at [89].

112 It is plain, in my judgment, that since first contact, and as I have inferred since sovereignty, to the present time the Aboriginal claimants have acknowledged and observed traditional laws and customs which have continued substantially uninterrupted since sovereignty, in relation to the claim area and its surrounds. The evidence to that effect is strong. It comes from the material to which I have already referred, including that of Spencer and Gillen in particular, from the reports of European settlers in the area, from the history report of Dr Vaarzon-Morel, from the anthropological evidence, and from the oral evidence of a significant number of members of the putative claimant group. The Northern Territory recognises that the expert evidence demonstrates that parts of the claim area have been occupied for a considerable time in the past, and that it is a reasonable inference that the present communities are descended from the Aboriginal or original inhabitants of the region in the sense that there is a ‘substantial degree of ancestral connection’ between the community now in place and the original community. I have found that the original community or landholding groups or claim group of the area were an identifiable community and an organised society under traditional laws and traditional customs. The Northern Territory’s primary contention is that, upon the whole of the evidence, the claim group is a confederation, caused by the fragmentation of remaining areas of traditional use and occupation due to European utilisation of the claim area, and not a true single community of native title holders.

113 It is clear that the introduction of Europeans into the claim area and its surrounds had a significant effect. In 1880, more than 2000 livestock were overlanded to new stations established by the Barrow Creek Pastoral Company. The land was soon after described as looking as though it had been ‘eaten out’ after the occupation of cattle. Consequently, the food supply of Aboriginals living in the area was greatly reduced, and access to the land and resources was impaired. It is further a commonplace that in many areas Aboriginal dependence upon European food rations and supplies increased over time. Many Aboriginals worked on cattle stations in an attempt to secure rations.

114 In the period between 1910 and 1919, the European population in the claim area and its surrounds grew slowly, as the number of pastoral activities and mining developments in the area increased. Reference is made later in these reasons to the pastoral leases taken out from time to time. Those leases included leases over what is now known as Kurundi Station. It was stocked at least by 1921. The daughter of the then leaseholder described in 1927 a large Aboriginal presence on the stations and a large Aboriginal workforce. She described how she and her siblings had established warm relationships with the local Aboriginal station workers and with other Aboriginals in the area. She described how she was looked after by those Aboriginals, and was taught about traditions and customs on the land. She was aware of areas in which ceremonies were conducted.

115 It is from about that time that the direct memory of certain of the Aboriginals who gave evidence first is enlivened. Certain of them described having been born or grown up in and around the claim area, and of their contact with early pastoralists. They had dealings with the pastoralists and their families in a range of stations including the Murray Downs Station, Elkedra Station, Kurundi Station, McLaren Creek Station, and the mining community at Hatches Creek. Schools which they attended were conducted, at least at Murray Downs Station and at Hatches Creek. Not all of the contact was amicable. For example, Albie Bailey and his family ran into the hills after the pastoralists from Murray Downs fired shots at them because ‘we was hanging around his boundary side’. Alec Peterson grew up with his family at Tharlpeng, a location along the boundary between the eastern side of the claim area and the western side of the Anurette ALT land, and nearby areas. The places which he described included Ilkentyelkeng, also on the principal claim area and a little to the south of Tharlpeng, Ampwerl-Ampwerl and Twemanerilwek. He said:

‘TK: Why were you there at Tharlpeng?

AP: Mm?

TK: What were you doing in that place?

AP: We just keep out from trouble.

TK: Keep out from trouble.

AP: Yes.

TK: What sort of trouble?

AP: Well, they have a lot of them bullock on this place, lot of cattle. On the ground they had all them gap, well they been having lot of cattle, Birchmore.

TK: You used the name : “Birchmore”. That’s Mr Birchmore who was the manager for Kurundi?

AP: Yes. Like not allowed people hang around like – like just open place.

TK: Right. So there was some problem with you being near the cattle, was there?

AP: Yes. Only my daddy might been know something. That’s why him been growing up me along hill.

TK: He grew you up along the hills?

AP: Yes.

TK: And you stayed away because that was cattle country?

AP: Yew.’

Similar evidence was given, although relating to a little later in time by Jemima Foster, Polly Apwerl who spent time at Athethew and Alarlatwerrew both on the principal claim area and on other places on what is now the land of the Anurette ALT. The three brothers Frankie, Casey and Jackie Holmes all ran away from school at Hatches Creek ‘because we don’t use to do what white people’. Murphy Jappanangka also ran away from persons at Elkedra Station because he got a hiding because he wasn’t ‘doing the job right way’, when he was ‘only a kid’.

116 During the mid 1940s until the mid 1960s many Aboriginals, including some of the applicants who gave evidence, lived and worked on cattle stations in the regions surrounding the claim area. Dr Vaarzon-Morel describes the arrangement in the following terms:

‘In spite of the economic hardship created for local people by cattle stations, station work provided a framework for Aborigines to remain in close association with their traditional lands without it radically altering their system of custom and law.

…

During the period under discussion, the social and economic dichotomy between Aborigines and non-Aborigines in the region served to facilitate Aboriginal cultural distinctiveness.’

117 The Elkedra Station was leased to a Mr Driver during the 1950s. In 1951 it was reported that 14 Aboriginals and their deceased relatives from the Tyaw, Warwepenty and Antarrengeny land holding groups were resident on the station. They are recorded as having hunted and gathered food in traditional ways. There was a severe drought in the area in 1953, and the Aboriginal population was reduced to 19. Mr Driver applied for rations to assist old and infirm Aboriginals and for child endowment for the children. In his book ‘With The Sun on My Back’ Ewers reports that ‘Elkedra makes no attempts to provide its natives with housing other than the Wurleys. They provide for themselves’ (Angus and Robertson, Sydney 1953, p 174). In 1954 it was noted that there were still Aboriginals living a traditional lifestyle in the claim area. Mr Driver again requested rations and clothes for the Aboriginals living on his property. Among those listed in the claim for maintenance is one of the present applicants, Wendy (Winnie) Barnes Apwerl, then aged five, her brother, and others of the Tyaw landholding group. Records disclose that others who worked on the Elkedra Station during Mr Driver’s time included Kwementyay Peterson (now deceased) and Jackie Holmes Akemarr. He gave evidence about his experiences, describing himself as a member of the Antarrengeny landholding group through his father’s father and his mother’s mother, and of the Akweranty/Anwerret landholding group through his mother’s father.

118 Mr Driver was also the lessee of Epenarra Station. In the 1950s there were two camps of Aboriginals on the station. It is recorded that in 1953 the Aboriginal population comprised 12 male adults and 13 female adults with two children. Eight of the adults were employed on the station, and the remaining 10 classified as old and infirm. By 1961 there were 40 Aboriginal persons permanently residing on Epenarra Station, and the number increased soon afterwards to 58 following an exodus from Kurundi Station where (apparently) the living conditions were poorer. Over this period, a significant number of the applicants or their ancestors were born or grew up or worked in and about the claim area. Micky Nothing was born at Arepeylarr, in the Tyaw area, part of the Anurette ALT land. Alec Peterson who was born on Artiw country, came to Hatches Creek, and lived a tribal lifestyle with his parents. He recalls his father using spears to hunt and being taught to do so himself. Linda Dobbs was born at Ilentyarlewerrperrp-Arrernelhew on the claim area, and Fanny Barnes at Athethew on the claim area. Jackie Holmes Akemarre was born at Hatches Creek, and he grew up in that area including going out bush to get ‘bush tucker’. He would camp at rock holes and creeks. He described a big mob of Aboriginal people at Hatches Creek who were Alyawarr, Warumunga, Wakaya and some Kaytetye people. He walked to many places in the claim area and went to school both at Murray Downs and at Hatches Creek. Polly Apwerl grew up and walked around parts of the claim area including Akweranty country and Lyentyawel country and used to go hunting there, including areas around Yethel in the claim area. Mary Akemarr was born at Antalteket in the claim area. Georgina Kngwarey was born at Yethel in the claim area. Mary grew up also around that area. Kathleen Beasley came to Hatches Creek as a baby and grew up in that area living in the bush. She recalls camping with other Alyawarr people at a hilly place near Arepeylarr adjacent to the claim area, walking around in the hills looking for kangaroo, bush tucker and so forth. She and Kathleen met each other as part of a big mob of people at Yethel. She also recalls staying at a waterhole to the south of Black Tank (Anwerret) in the Anurette ALT land with a big mob of Alyawarr people. She recalls ‘that place, Apemerey, with a big mob’, and a big camp at Ilentyarlewerrperrp-Arrernelhew in the claim area where she got married.

119 Kurundi B Kngwarrey was born on Kurundi Station and grew up around Hatches Creek. He worked for a time as a miner and as a tracker at the Hatches Creek Police Station. He got to know different camps and different places including Arepeylarr and Yethel in the claim area. He recalls ceremonies and dancing in the camps at night. Both Murphy Jappanangka and Ronald Thompson also were born and lived in and around the claim area, including Hatches Creek, and walked around Tharlpeng, Lwengkeyekenh, Kerrkety, and Kwepany all in or adjacent to the claim area as well as other areas where they cut spears and used spears. They identified other areas also where they cut and used spears. A number of the witnesses described walking about the claim area and associated area by themselves, with their parents, and of their ancestors also having done so. Some of them walked by Yethel and Arepeylarr from Elkedra to Hatches Creek and back.

120 In 1925, alluvial gold was discovered near Kurinelli on Kurundi Station. Many people walked from Hatches Creek to Kurinelli or Battery Hole via Athethew on the claim area including Murphy Jappanangka, Jackie Beasley and his brother, and others whom he described. He travelled across the claim area with his family quite often, ‘to sit down with your relations’. Similar trips and details were given by Jemima Foster, Donald Thompson, Mary Akemarr, Georgina Kngwarrey, Frankie Holmes and Lorna Nappanangka. Their evidence mentioned a number of places in the claim area and in areas surrounding the claim area where they stopped from time to time.

121 In 1958, the Warrabri settlement was established under government policy. The name ‘Warrabri’ was made up of the names of two language groups, Warumungu and Walpiri. There were also Kaytetye, Alyawarr and Wakay speakers there. In the mid 1950s, the Aboriginal population was about 225. Applicants who lived and worked at Warrabri include Kathleen Beasley, Akemarr, Anita Holmes Akemarr, Donald Thompson, Stanley Holmes and Lucy Pumper Apwerl. By 1960, there were still a number of Aboriginals living on Kurundi Station, including members of the applicant families and their ancestors. They included Murphy Jappanangka and his now deceased father, Frankie Holmes Akemarr and Donald Thompson Akemarr.

122 In 1915, wolfram was discovered at Hatches Creek. The mining of wolfram subsequently took place over a number of decades. A number of Aboriginal persons worked in the mining fields. In the 1979 Land Claim Report, Toohey J said that the co-residence of different groups of Aboriginals including Alyawarr, Warumungu and Kaytetye ‘was one of the factors contributing to the spread of the Alyawarra language’. The increased demand for wolfram in the period leading up to WWII, increased mining activities at Hatches Creek and the Aboriginal population in that area, as well as the non-Aboriginal population. Dr Vaarzon-Morel, reported:

‘In reviewing Hatches Creek mining experience … it is clear that the impacts upon Aborigines in the area of the village included:

a general loss of amenities and reduction of access to waterholes, camping places and sacred sites;

the pollution of water sources by stock;

the degradation of some traditional food gathering areas;

epidemics and disease; and

unsanitary living conditions.’

She points out, however, that the Aboriginals were able to maintain aspects of cultural life, and to maintain their traditions including the speaking of their languages, the maintenance of their structured social life in accordance with customary practices, and the continued performance of their ceremonies and religious traditions. They also continued to be dependent to large measure on traditional resources for food and water, bush medicine and other materials. Following WWII, there was a drop in the price of wolfram, and mining operations ceased in the early 1950s. Some Aboriginal persons nevertheless continued to live in the area. In 1959, it was reported that only four Aboriginal persons continued to receive food rations at Hatches Creek, although there were apparently Aboriginals living in Hatches Creek and the surrounding areas, with numbers fluctuating according to the seasons.

123 In 1960, a patrol officer noted that there were still 12 Aboriginal persons collecting wolfram at Hatches Creek, and a total of 30 Aboriginal persons living in the town area. He observed that it was likely that the number would increase substantially as the holiday season came on. Following the closure of Elkedra School in April 1960, the population of Aboriginal persons at Hatches Creek increased. Attempts to move those persons to Elkedra and other places were resisted, particularly by the elder persons. Documentary evidence indicates that some Aboriginal persons continued to live in the wider Hatches Creek/Davenport Ranges area, and to visit Hatches Creek, particularly during the summer season when Aboriginals from the surrounding stations joined them.

124 Over this period, there is clear evidence of a number of Aboriginal persons living or holidaying at Hatches Creek, and in other parts of the claim area. That evidence was given by Albie Bailey, Alec Peterson, Jemima Foster, Murphy Jappanangka, Mary Akemarr, Marlene Jones, Lucy Pumper Apwerl, Casey Holmes, Frankie Holmes and Donald Thompson. It is unnecessary to refer at any length to their evidence. In various ways they described how they, and their family including their parents, lived in and around the claim area including Hatches Creek. They hunted with spears, they moved extensively, they confirmed the existence of large groups of Aboriginal people at various places in the claim area including Hatches Creek. They confirmed living on bush tucker. They confirmed the holding of ceremonies in different places in the claim area, including Hatches Creek. They confirmed the presence at those places of people speaking Alyawarre, Warumungu, Kaytetye and Arrente languages. The ceremonies described included men’s ceremonies and women’s ceremonies. Essentially, despite the influence of white or European people and activities, the traditional laws and traditional customs of the claim group appear to have been preserved. They included ceremonies, taking bush tucker and bush medicine and the like. They include simply the ritual of moving around the country. There was restricted evidence given as to some of those activities in various places within the claim area. Some of those witnesses for periods worked on the stations surrounding the claim area from time to time, and then spent time walking around the country, including the claim area, and engaging in activities which fit in the way described into the description of traditional laws and traditional customs. The process included educating the children about those matters.

125 In more recent years, Aboriginal people have been able to live at outstations located on country to which they have a traditional connection. A number of the applicants gave evidence of having done so. There is a small outstation at Alepeyewenh (Black Tank) on the Anurette ALT land very close to the claim area. Today, Kurundi B. Kngwarrey lives partly in Tennant Creek and partly at that outstation with Kwementyay M Liddle. Kwementyaym has brought his children to the outstation to show them around the country. He teaches them about the country and its use and resources. Alec Peterson’s brother, who is married to Kathleen Beasley, lived also at an outstation prior to his death. Kathleen Beasley has also done so. They continue to use the land, and seek hunting for bush tucker and the like.

126 Members of the Kelantyerrang estate group lived from time to time at the Karlanjarri outstation located on that group’s country (previously McLaren Creek Station). They include Marlene Jones, and her husband and nieces. Others spend time there. Marlene Jones said:

‘TK: Why do you live at that place?

MJ: Because it’s my grandfather country.

TK: It’s your grandfather country. So why is, just explain, it’s a hard question, Marlene, but just explain why is it important for you to live on your grandfather’s place?

MJ: Because it’s real important for me to live there because my father told me all that.

TK: Your father told you all that, or hold that?

MJ: Yes. To ---

TK: Just tell me, what did your father say to you?

MJ: My father said this is your grandfather country, and you stay here, no one can tell you to get out from this country, and you got to teach your childrens and if I’m pass away because maybe he might have a land right to ask you something: that’s all that he told me.

TK: Have you been doing what your father asked you to do?

MJ: Yes.

TK: You been teaching up the next generation?

MJ: Yes.’

Similar evidence was given by Kwementyay J Jones. That same connection and purpose was given by evidence in respect of outstations on the country of the Warwepenty group, and of the Tyaw group, and of the Antarrengeny group who live at an outstation at Antarrengeny itself. Those witnesses include Albie Bailey, Frankie Holmes and Richard Holmes. They also include Casey Holmes and Polly Apwerl, Patrick Murphy and his family, Ruby Apwerl, and Mary Akemarr from time to time.

127 That is but a relatively brief description of some of the evidence relating to connection.

128 The Northern Territory accepts that there is evidence of a continued physical connection of Aboriginal people with the claimed area over a long period of time. It also accepts that there is firm evidence that language has been associated with rights in country in respect of the claim area over a long period of time. Such evidence was given, for example, by Murphy Jappanangka and by Donald Thompson Akemarr.

(6) The Claim Group

129 The evidence clearly establishes a strong sense of community or ‘family’ within the applicants’ identified claim group and extending across the seven landholding groups. For instance, Jackie Holmes Akemarr said in evidence:

‘TK: What do you say as to the Alyawarr mobs and the Kaytetye mobs, are they – how do you describe the relationship between those two mobs?

JH: They speak like same language, same language you know. – Kaytetye, but they use words different – what we still understand Kaytetye.

TK: So it’s a close language?

JH: Yes.

JH: They’re family.

TK: They’re family. Let me ask you about a couple of Warumungu groups that are involved here. You know Murphy?

JH: Yes.

TK: Have you – you’ve worked with Murphy, have you, at different places?

JH: No, I didn’t work with Murphy, no.

TK: In those early days, did you see him around Elkedra?

JH: Elkedra and Hatches Creek I saw him when I was a little boy, I seen him.

TK: I see, you were a boy, and he was there in that same place, was he?

JH: Yes.

TK: Do you regard Murphy’s mob as being like separate mob, separate family from your own mob?

JH: No, they close to us, family.

TK: What about that Kelantyerrang mob, you know those ---

JH: Yes, they really – really family for us.

TK: That Jones family?

JH: Yes. They’re family.’

130 Whether the evidence establishes that the identified claim group comprises those who, according to their traditional laws and customs, hold the common or group rights and interests comprising the native title rights and interests claims requires further consideration. The starting point for each of the applicants and the Northern Territory is the observations of Brennan J in Mabo at 61:

‘But so long as the people remain an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.’

His Honour at 61 – 62 contemplated the prospect of communal native title comprising subgroups or indeed individuals within it who have particular rights and interests in the communities’ lands.

131 There are other illustrations of estate subgroups being found to constitute a broader composite community: Ward at first instance, Croker Island and St Vigeon (although the issue in that case was not contentious). In Ward at first instance, Lee J said at 525:

‘The mutual possession of a language connected with the land was an incident of identification of the community as was mutual recognition of membership of that community; mutual acknowledgment and observation of traditional law, customs and practices; and the recognition by others of the existence of the community.’

His Honour at 541 said:

‘The territory of the Gajerrong community was adjacent to the Miriuwung and they shared economic and ceremonial links. Those links were reinforced when the extent of the depletion of Gajerrong people after European settlement saw Miriuwung and Gajerrong become regarded as a composite community with shared interests. The members of that community were still Miriuwung people and Gajerrong people but with a common outlook and beliefs, and common traditions and customs in respect of the land with which they were connected.’

Those conclusions were upheld by Ward in the Full Court: see the judgment of Beaumont and von Doussa J at 372, [204] and 381, [239]. Their Honours said at [204] that the evidence showed a communal title shared by a composite community of the Miriuwung and Gajerrong estate groups under the traditionally based laws and customs as ‘currently acknowledged and observed by it’. The particular issue was not directly raised before the High Court in Ward, but the majority reasons indicate that the existence of the communal group holding native title must exist both at the time of sovereignty as well as at contemporary time, and during the continuum. That is not to require that there be a mirror reflection of all features of the traditional laws and customs, or the manner of their exercise, at the two temporal bookends for the reasons already given. But the communal rights and interests cannot be transferred from one communal group existing at sovereignty to a different communal group formed sometime thereafter, so that the new communal group may assert under the NT Act native title rights and interests which it holds and which are recognised by the common law under s 223(1)(c) of the NT Act.

132 In this instance I am satisfied that the claim group as asserted by the applicants does constitute an identifiable community, that its members identify and recognise those persons within the description as members of the broader community notwithstanding their different estate groups, and that the community as described lives under a common set of laws and customs. Within the claim group, there are different subgroups or persons who have a particular responsibility for particular parts of the claim area or particular sites. The evidence shows nevertheless that there is a significant crossing or sharing of such responsibilities across particular persons from different estate subgroups which arises under the broader communal laws and customs. Not all community members enjoy the same rights in respect of all parts of the claim areas. For example, there are areas where women and children may not go, but the fact that there may be different individual rights in respect of different parts of the claim area does not mean that the claim group does not enjoy communal rights and interests over the claim area. In Ward in the Full Court, Beaumont and von Doussa JJ said at 371 – 372, [202]:

‘Within that area, however, the NT Act does not require the determination to specify precisely which members of the community that is the common law holder of the native title rights and interests, have or may exercise particular rights in relation to particular areas of land. The enjoyment of the communal rights or some of them is a matter which is left for the common law holders to determine among themselves in accordance with the traditional laws and customs as currently acknowledged and observed.’

133 In my view the claim group, by its members and through its traditional decision-making processes, could collectively assert against non-members the right to enforce its native title rights and interests. That statement is, of course, circular and self-establishing. It is necessary to refer in some detail to the evidence which leads to the conclusion.

134 Before turning to the evidence, I also record my satisfaction that the claim group or community which I have found to exist is not a new community different from that which existed at the time of first contact with Europeans, or at the time of sovereignty. I consider the claim group or community has its ancestral source in the community which occupied the claim area at the time of sovereignty. The material previously referred to, in my judgment, demonstrates the existence of a wider communal title than one on an estate group basis at that earlier period.

135 The Northern Territory pointed out that the claim area does not reflect natural boundaries, so that any communal group holding native title would extend beyond the claim area. It contends that there is no real scope for that to be established because, as one moves from the claim area in any direction, individual estate groups have been found to enjoy land rights under the Land Rights Act. It may be that the claim area (and some area surrounding it, not the subject of the present application) developed into one occupied by a broader community than that of each of the several separate estate groups because of its geographical and resource significance, or because it is an area where the boundaries of the lands of a number of separate estate groups come together or intersect. It is not possible to do other than to speculate about the reasons. However, the evidence to which I have earlier referred, including the observations of Spencer and Gillen, does illustrate to my mind more than simply the interaction of different estate based native title claim groups in the vicinity of the claim area and does indicate the functioning of a broader communal group as I have found to exist. Spencer and Gillen record the Territories of the four linguistic or tribal groups in essentially the same locations as are given for them today, and that those four groups interacted. That picture is supported by the evidence of the Aboriginal witnesses who gave evidence of their early years and of the activities of their parents in the early years of the 20^th Century. I see no reason to suppose that the relevant community at sovereignty was structured in any materially different way than that in which it is structured at the present time.

136 Dr Elliott reached the following conclusions, with which I agree:

‘For each of the seven landholding groups in this application, there is a substantial degree of ancestral connection from the earliest remembered ancestors through to the current living descendants.

…

It is the case then that for the present community of applicants, their earliest remembered ancestors can be said to pre-date or coincide with the time of likely first contact with Europeans. In the Frew River area this contact did not occur until the 1880s. In the absence of anything to suggest otherwise, it is reasonable to believe that the community at sovereignty were in occupation of the application area and are the ancestral forebears of the applicants’ earliest remembered ancestors. In this way, the applicant community holding interests and entitlements over the application area today, can be seen as ancestrally descendant from the original community at sovereignty.’

I am satisfied on the evidence that there is a substantial degree of ancestral connection between the original native title holders at sovereignty and the present community.

137 There are divers connections between members of the claim group notwithstanding the existence of separate estate groups. The evidence of Aboriginal persons consistently describe themselves as ‘one family’ or ‘one mob’. More importantly, they consistently referred to one law and one set of traditional laws and customs under which rights and interests in the claim area arise. I shall not record the evidence of each of those witnesses individually. The governing law is called Altyerr. Jackie Holmes Akemarr said:

‘That rule of Dreamtime, when Dreamtime give us them rule, that’s why we’re doing it. We follow one law all the time. Every hour, every day and every year and every month. All follow that law, only one. Some pass away, some born, they still same, following one law.’

The Aboriginal evidence indicates that within the claim area there is one set of avoidance relationship rules, one set of mourning customs, one set of gender restriction rules, and the same general rules relating to looking after country, whether the country be more specifically identified by reference to a particular estate group. The evidence also indicated aspects of common ceremonial practice consistent throughout the claim area, and which do not differ by reference to separate estate groups. On the other hand, there was no significant evidence to indicate individual country or estate groups functioning separately as a community with different rules or customs, or with different ceremonies, or with separate and isolated residential arrangements. They share ceremonies and members of each of the four language groups attend them. That has been so, as Albie Bailey said, both at recent times and in the early days. It was confirmed by other Aboriginal witnesses including Murphy Jappanangka and Alec Peterson.

138 There is considerable evidence of marriage between linguistic or tribal groups, and between members of different estate groups, within the claimant group. Examples are provided in the applicants’ submissions. There is a set of rules to determine whether proposed marriages are ‘straight’, that is permissible in accordance with the traditional laws and customs observed.

139 There is also commonality of ceremonial and Dreaming connections in the claim area between the four language or tribal groups and between the seven estate groups. Those connections extend across areas of different tribal estate groups. For instance, there is a Lizard Dreaming and ceremonial connection between Kelantyerrang and Antarrengeny. The site Irreyel is a focus particularly of the estate group Kelantyerrang, although it is completely surrounded by Arrawatyen country. There is a Sugar Bag Dreaming connection between Warwepenty and Lyentyawel-Ileparranem. Alec Peterson said in evidence that there are not a number of different sugar bag lines, but that ‘we work them together’. The Dreaming stories of the Antarrengeny and Arrawatyen groups are intimately intertwined, with Dreamtime ancestors from each country travelling to and through the country of the other. Albie Bailey, when asked whether the seven estate groups were separate in relation to that Dreaming said ‘they’re one group in that area’, and explained that that was ‘because in the Dreamtime’. Alec Peterson said that the laws and Dreamings of the four language groups and of the seven estate groups were all ‘joined up … that’s why they follow, they following because they got to look after that one’. Similar evidence was given by Murphy Jappanangka at Athethew about Kujika songs used at ‘young man time’, and he explained that the law works the same for each of the seven estate groups within the claim area. Other witnesses, including Donald Thompson and Frankie Holmes explained that the Dreamtime connections between the seven estate groups and their countries were in substance one law or ceremony. In open evidence, Frankie Holmes was asked about the relationship between the seven estate groups. He said:

‘Well, because they have connection closer, you know, how the – how the Dreamtime been connection close again and next one close again, next one close again, you know. That’s why they are, you know, one – one group you know in this Alyawarr area not only into the Alyawarr area, everywhere.

…

Q. And in addition to your Dreaming connections, are there family connections across the different groups?

A. Yes. Same Dreaming, same family.’

140 The evidence also demonstrates that the ceremonies carried out through the claim area are, and have been, the same wherever ceremony is conducted within the claim area and irrespective of estate groups. Those ceremonies include young man business (both a women-only component and a men-only component), women’s awely ceremonies, mourning customs, and the like. The same traditional laws and customs regulate throughout the claim area what a particular person is entitled to know or to see, or to participate in, and what particular places a person is entitled to go to. There was very extensive evidence given by a number of the Aboriginal witnesses on those topics. The traditional laws and customs relating to avoidance relationships, that is when persons must avoid being in the presence of other persons to whom they stand in a particular relationship, was consistent throughout the claim area and independent of particular estate groups. The hunting practices and the use of bush resources by the applicants were consistent, and shared amongst all members of the claim group, again independently of the particular estate groups. There was no evidence that separate estate holding groups conduct ceremonies independently of other estate holding groups, or in other ways regard themselves as a separate community distinct from the general community in the claim area.

141 Both Dr Elliott and Dr Koch were of the view, following their research, that there were no different systems or principles of land tenure operating in different parts of the claim area, notwithstanding the existence of the seven separate estate groups. The relative ‘definability’ of areas applicable to each estate group seems, according to Dr Koch, to correlate to a degree with the availability of reliable water supplies. That is consistent with Dr Koch’s evidence about language within the claim area. The dominant language is Alyawarr, followed by Kaytetye, both of which languages he described as closely related and with considerable shared vocabulary. Vocabulary, and ‘skin’ names common to Alyawarr and Warumungu languages also, he considered, showed a pattern of extensive language contact at least during the 19^th Century. I do not place much weight upon that part of the evidence of Dr Koch because, as counsel for the Northern Territory submitted, the evidence tends to suggest that the role of linguistic affiliations in relation to establishing traditional native title rights and interests in land is somewhat uncertain or remote. Nevertheless, it adds a little to the weight of the evidence generally.

142 The evidence of some Aboriginal witnesses indicates that the system of Altyerr is one shared with Aboriginal people over a much wider claim area than the claim area, including over the areas extending from the claim area in which there have been determinations of the native title on behalf of particular estate holding groups under the Land Rights Act. Hence, the Northern Territory contends, evidence of a ubiquitous Aboriginal customary law is not evidence that makes the level of community claimed by the applicants unique. The Northern Territory points out that any particular ‘community’ will have extensive Dreaming, kinship and other connections with adjacent communities. I accept that, in such circumstances, that does not mean that each of those communities is the one communal group that holds native title rights and interests in a specific area. It may be of itself a relatively neutral factor. But it is the overall picture of the evidence which must be taken into account.

143 There are other considerations which, the Northern Territory contends, militate against accepting the claim group as formulated by the applicants. Certain evidence indicates that each estate group has its own country. The evidence of Kurundi B Kngwarrey was that the Kaytetye people who were at Hatches Creek had their own country at or near the Barrow Creek area, and he described the Black Tank area which was at Alepeyewenh in the land of the Anurette ALT as being his particular country, that is for his Akweranty country. He did not think he had the right to talk about any other country. A number of witnesses used the expression ‘my country’ or ‘my father’s country’ or the like to illustrate or to refer to particular parts of country. I have given careful consideration to those references. Generally speaking, they refer to the place where the particular witness grew up or has a particular strong link, often by reference to genealogical considerations of descent from father’s father’s country or some other descent line. I do not think that, overall, the picture which that evidence draws illustrates a foundation of claim groups by reference to estate groups in the way for which the Northern Territory contends. The evidence referred to was generally when a person was referring to that person’s country from father and from father’s father. There is clear evidence of rights and interests acquired by community members other than acquired in a patrilineal descent base. For instance, Murphy Jappanangka belongs to the Warwepenty group, and Alec Peterson belongs to the Antarrengeny group. Each gave evidence, supported by other witnesses, that they have particular responsibilities in other parts of the claim area, and in particular in respect of Arrawatyen country or country of that estate group, even though they are not within that particular landholding group. The evidence was vivid and convincing. The same can be said of the responsibilities which Alec Peterson has under the traditional laws and customs of the claim group in respect of the country identified with the Lyentyawel-Ileparranem estate country group even though, as I noted, he is on his father’s father’s side a member of the Antarrengeny estate. They are illustrations of the fact that, as the evidence discloses, certain members of the community which I have found to exist had particular roles and responsibilities under the traditional laws and traditional customs of the community in respect of areas and sites which are not within the particular country of the estate sub-group to which they belong through their patrilineal heritage.

144 I have also taken into account the evidence to which the Northern Territory referred identifying handover points in the claim area, where there is a shifting of responsibility for land or of Dreaming stories, so that the persons entitled to exercise comparable rights over that land move from one landholding group to another. I have referred above to the Kujika songs to which Murphy Jappanangka referred. He described, when using those songs, that for a time the Alyawarr people sing them, and then hand them over to Wakay and Warumungu people to carry on. It may be noted that that particular evidence relates to the responsibility of different language groups rather than the different estate groups to which the Northern Territory refers.

145 There is also evidence, as the Northern Territory pointed out, of certain Dreamings passing from one group to another both from the claim area and its surrounds to other groups unrelated to the four language groups (or the seven estate groups), and in part within them. There are handover points within the claim area (as well as from the claim area to other areas, whether the group holding native title comprises the four language or tribal groups or the seven estate groups separately), indicating a shifting of responsibility for country and that the native title rights and interests over that country are confined to a significant extent to particular persons of responsibility.

146 It is in the light of that material that the Northern Territory submitted that the relevant holders of native title are individually the seven estate groups, and that:

‘The respective apmerek-artwey and kwertengerl of the landholding groups hold or mediate native title rights at the group level. Dr Elliott agreed that there are handover points both within the claim area and from the claim area or its surrounds at which responsibility for ownership of a particular Dreaming story passes from one person or groups of persons to another person or group of persons. Hence, he accepted, that within the claim area an individual may have particular limited rights in respect of particular land, but he did not accept as a result that other members of the wider claimant group would not also have some different and perhaps less specific rights in respect of that area. The fact that an individual or individuals may not be entitled under customary law to speak for a particular area does not indicate, in my view, that the communal group as described by the applicants in the light of the whole of the evidence does not have that community of interest in the claim area which I have found to exist. Internally within the group, the identification of which members of it enjoy which particular rights in respect of sections of it is a matter to be determined according to the traditional laws and customs of the claimant group.’

However, I agree with Dr Elliott’s conclusion, which he expressed as follows:

‘The seven landholding groups in combination operate as a community … This is evidenced in that the applicants claim kinship relatedness (both through descent and intermarriage) and regard themselves as “one mob” with “one law” (over and above localised territorial affiliations); they share in common a wide variety of social and religious customs and beliefs; many applicants habitually reside together in the same locations and exist in a common social universe, both historically and currently. These communal interrelationships are not inhibited in any sense by language differences, since multilingualism in the application area is quite widespread and the local form of ‘Aboriginal English’ is ubiquitous.’

147 The traditional laws and customs of the claim group demonstrate a sophisticated structure for membership of the community, and responsibilities for the claim area. As the Northern Territory indicated, there are two principal means by which an individual can become a member of the claim group with responsibility for country within the claim area: they are by patrilineal descent (apmerek-artwey) or through the status of kwertengerl. The apmerek-artwey link to an estate depends upon patrilineal principal of descent, so that status as apmerek-artwey passes from grandfather to father to child through the male line only. Perpetual transmission of rights and interests in country only occurs through the patriline. The status of Kwertengerl arises or exists in persons who identify with an estate through their mother’s father (artartety). The evidence indicates that the status of kwertengerl may also arise through father’s mother (aperle) or mother’s mother (anyany), and generally but not on the evidence always where there is a decline in the number of persons who qualify as grandchildren of an artartety. The lines of descent other than the apmerek-artwey (father’s father line of descent) generally does not extend beyond the grandchildren. Frankie Holmes described the system of access in the following terms:

Q: Once you know, once you’ve been told those things and you’ve got them up here in your head, what about then, do you have to ask or you just go?

FH: No, I can do what I like because I know where the secret site is and I know where the clear place is; I can do what I like because I know that country.

Q: And does that apply to Arrengey country?

FH: Arrengey country Anyany country, Artartety country, Aperley country.

Q: So it’s the same process for each place?

FH: Yes.’

Perhaps indicative of the existence of the wider claim group to which I have referred, certain members of the claim group claimed to have the status of kwertengerl for country or parts of the claim area where they have had no known genealogical relationship, but by reason of their close connections with those people who have worked on that country. The evidence was given by Albie Bailey, Alec Peterson, Richard Holmes, Kwementyay M Jones, Murphy Jappanangka, and Frankie Holmes. Generally, the status of kwertengerl seems to arise through matrifiliation, that is the children or grandchildren of women patrilineally connected to particular parts of the claim area. In my view, the Northern Territory accurately described the effect of the evidence as indicating that apmerek-artwey could fairly be described as owners of the estate or the traditional owners of it, described sometimes as ‘boss’ of the land, and kwertengerl as a caretaker of the land through matrifiliation with a limited and proximate principle of succession. As noted, in addition to the formal structure of that ranking system, the evidence indicates some exceptions based on knowledge, seniority and long term residence.

148 Acquisition of rights by ‘descent’ includes acquisition by those who have been adopted as minors and have been ‘grown up’ as children of adoptive parents so that the child is placed into the group as biologically descended from the adoptive parent. The evidence as to that topic was uncontested. It is, for instance, based on the evidence of Alec Peterson. In part it is a process under traditional laws and customs to ensure that country is not left empty. If there is no apmerek-artwey in respect of a particular part of the claim area, the kwertengerl acts as a caretaker until some young person is identified and ‘grown up’ as a patrilineal descendent in respect of that country. Frankie Holmes said:

‘… if bosses go away, hey, must be all the bosses go away somewhere, well Anyanyarl-Akew he can look after that place, Arrengarl-Akew, he can look after that place, and Kwertengerl he can look after that place. … They still going to find another Aperl-Akew. They still can get another Anyanyarl-Akew. They can still find another Anyanyarl-Akew or Artartety-Akew.’

149 For instance, in relation to the estate area of Lyentyawel-Ileparranem where there are limited surviving members of that estate group, Alec Peterson knows that country and has the responsibility of looking after it, even though he is not part of the direct lineal descent group, because he was born close to that country and because he was given that responsibility by a person from that country. He explained the circumstances in which he got that responsibility, and his concern that if he did not fulfil it he would get into big trouble. He is waiting for someone in the patrilineal descent line to grow up to pass on that responsibility.

150 In my judgment, Dr Elliott correctly described the effect of the evidence in his supplementary report:

‘The summary of evidence relating to these issues in this section shows that an underlying basis for the right to exercise territorial rights is knowledge: that is, whether an individual “knows” the country or not. The local belief is that someone who “knows” the country will know where to go and where not to go; what activities are permissible and those that are not; in the company of who and for how long etc. An individual possessing this knowledge and attendant rights is highly likely to be a member of the applicant community and, as far as practicable, obliged to regulate the territorial rights of others (including Aboriginal “strangers” and non-Aboriginal “strangers”) by participating in meetings over land interest issues.’

151 The question whether native title rights and interests in the claim area may arise simply by being born on the claim area is not clearly resolved in the evidence. The Northern Territory contends that the effect of the evidence is that any connection a person has with country through birth is manifest as an interest in a specific site within that country, that is the birthplace, and may by enjoyed only with the consent of people from that country who monitor visitation of the birth site. There was certainly evidence to that effect. There was also evidence, from a number of witnesses as to the significance to them of their birthplace, and of having a responsibility to care for their birthplace. Dr Elliott has referred at some length to that evidence in his supplementary report. As he says in his initial report, in practice birthplace connections usually do not exist in isolation and are reinforced by other life events, including growing up, marrying, and living on the claim area, visiting sites, and acquiring knowledge through participating in ceremonies connected with the land. Such is the example of Linda Dobbs, who was born on the claim area at Ilentyarlewerrperrp-Arrernelhew, part of the Tyaw country within the claim area. She clearly regarded herself, and was clearly regarded by others of the claim group, as part of the applicant group. Whether that is simply by reason of her birthplace, or by reason of her subsequent association with the claim group and the claim area is unclear. I have therefore come to the view that membership of the claim group simply by reason of being born on the claim area is not sufficient, but that under the traditional laws and customs of the claimant group, subsequent activities and being accepted as a member of the community through knowledge and/or and participation in activities of the claim group enables that membership to be established. It is not necessary to identify precisely how that occurs. That is a matter for the traditional laws and customs of the claim group.

152 I also consider that the evidence demonstrates that membership of the claim group with some native title rights and interests in the claim area may be acquired by marriage to a person who is a member of the claim group. The evidence does not indicate that the status of apmerek-artwey or kwertengerl is acquired by reason of marriage, and indeed it tends to suggest that such status is not acquired by reason of marriage. On the other hand, the consistent picture presented by the evidence is that a spouse of a member of the claim group is regarded as and becomes a member of the claim group with some native title rights and interests in respect of the claim area. The determination as to the nature and extent of those rights is a matter for the traditional laws and customs of the claim group. It is not necessary to determine them.

153 The role of kwertengerl is a significant one. The evidence indicates that it involves a responsibility to talk for the particular country, to participate in ceremonies and to organise them, to teach young persons about Aboriginal law and customs in ceremonies, to possess and to safeguard sacred objects and knowledge on behalf of the apmerek-artwey, and to check and maintain the country for which they are particularly responsible.

(7) The Native Title Rights and Interests

154 The nature of the rights and interests which the applicants claim, in the light of the decision of the High Court in Ward, is set out in their proposed determination referred to in [67] above. The expression of those claimed rights has evolved from those first expressed in the application, particularly having regard to the emphasis in s 223(1)(a) and (b) upon the need for those rights to be related to the claim area. The applicants accept that none of the rights which they now claim (other than the right to be recognised as the native title holders of rights and interests in the claim area) are exclusive. It is therefore not necessary to set out in detail at this point lengthy reference to the evidence on that topic. Moreover, as the Northern Territory does not dispute certain of the claimed rights and interests, to that extent it is also not necessary to refer in detail to the evidentiary foundation for them.

155 Clearly, there is a customary right of the applicants and the claim group to occupy and use and enjoy the claim area. As discussed above, in respect of particular parts of the claim area, this right rests primarily with the apmerek-artwey, the kwertengerl, and anyanyarl-akem of the particular estate group whose country is in question, but I think it is plain that the applicants generally have rights of use and enjoyment over the claim area in accordance with the traditional laws and customs of the claim group. The nature and extent of each individual’s rights are best determined by the traditional laws and customs of the claim group, but are obviously dependent upon the extent to which the individual knows the particular part of the claim area. As I have mentioned above, the use by witnesses of the expressions ‘my country’, or ‘my father’s country’ for example indicates as a matter of customary law and practice particular interests of members of the claim group in particular parts of the claim area. The witnesses described in detail growing up in or near the claim area, or having been born there, or having been initiated there. They described walking and hunting trips by themselves, their family and their ancestors across various parts of the claim area. They described hunting and the collecting of bush tucker. They described living, working and holidaying in various parts of the claim area. They described the conduct of ceremonies on various parts of the claim area. Those rights were observed by Spencer and Gillen in the passages already referred to.

156 The evidence about controlling the access of others to the claim area, so as to assert exclusively the right to control access to the claim area and to occupy and use it, is not so clear. It does not suggest that there have been significant instances of persons other than the claim group seeking to come onto the claim area or to use its resources either with or without the permission of the claim group. There is of course significant evidence of persons such as Warlpiri persons, and others, who came onto and worked around Hatches Creek during the time that it was functioning as a mine. There is no evidence that those persons sought the permission of members of the claim group to do so, or that members of the claim group took any action to prevent their coming onto that part of the claim area. Apart from that illustration, however, in a context which is readily understood, the evidence was that Aboriginal people from other regions and Non-Aboriginal people should ask the applicants for permission to enter the country, essentially so that they can be told not to damage sacred places and, upon some of the evidence, so that they can be told how to preserve the resources of the area. Kwementyay M Jones Jampin gave evidence:

‘JJ: Stranger? You know if somebody stranger, I think they should come and see traditional owner of that community first. …

Q: If people need food you wouldn’t block them, I suppose?

JJ: No, but unless they ask, you know people should ask for the permission first.

JJ: Yes.

Q: But if they need food or water you wouldn’t stop them?

JJ: Yes. Even for hunt, you know.

Q: Even for hunting?

JJ: Yes. That places that we can show them that they should go and the place that they shouldn’t go.

Q: If someone was making trouble on your country, what would you do?

JJ: Well, I think make everyone upset. This the same as everyone else.

Q: It would make everyone upset?

JJ: Yes.

Q: Would you do anything though about that person making trouble?

JJ: We will probably tell him to leave.’

A Philimac Kngwarrey said:

‘Q: Under Aboriginal law, do you have the right to block somebody doing something on your country, if that’s what you want to do?

APK: That’s right. Something like something like someone coming into your yard and you don’t want him in there, in your block.

Q: So what do you do?

APK: You’d probably say “no, I don’t want you here”. I do the same thing.

Q: Hunt them away?

APK: Yes.’

Evidence to similar effect was given by a number of other witnesses. The position is clear that Aboriginal people from more distant regions, and non-Aboriginal people, should ask to enter the claim area so that they can be told not to damage sacred places, and told other things to preserve the resources of the claim area. If they do not comply, or somehow cause trouble, the applicants assert the right to request them to leave.

157 In my view the evidence supports the conclusion that, albeit primarily for the reason of protecting the sacred sites and the resources of the claim area, the traditional laws and customs of the claim group involve the exercise of and the assertion of a right to control access of others to the claim area. That right involves persons being expected to seek permission before entering the claim area, and to remove those persons if they do not comply with the permission terms. In my view the evidence extends beyond that for which the Northern Territory contended, namely that there was under the traditional laws and customs of the claimant group a requirement for strangers to seek permission for access to the claim area amongst the claimant group themselves only, albeit one generally respected by other Aboriginal people but not as a matter of right in the claim group.

158 The use or exercise of the right to use and enjoy the resources of the claim area was amply supported. The applicants gave evidence of asserting the right to use the natural resources of the claim area including water, trees, bush medicine, soakages, sacred sites, and other things including the use of ochre from various places in the claim area.

159 It is true, as the Northern Territory contended, that there is little or no evidence of actual control of the use and enjoyment of others of the resources of the claim area. That may be simply because the occasion for the assertion of that right did not routinely arise. The existence of, and acknowledgment of, that right by others would mean that generally outsiders would not commonly seek to access the resources of the claim area. It is consistent with the evidence to which I have already referred that those who may come onto the claim area and who are not members of the claimant group can only do so with permission and upon terms, that the permission to come onto the claim area and the terms upon which such permission may be given involves the control of the resources, if any, which those persons may use or take from the claim area.

160 In my judgment, it is also consistent with the evidence to which I have referred that the applicants, under their traditional laws and customs, have the right to share, exchange or trade subsistence and other traditional resources obtained from or on the land and waters constituting the claim area. Of course, I draw a distinction between asserting the right to take flora and fauna from the claim area, and the right to ‘own’ the flora and fauna of the claim area. There can be no finding that the applicants have ‘property’ in the fauna in the claim area: see the High Court in Yanner v Eaton (1999) 166 ALR 258 at 265 – 266.

161 There is ample evidence of physical maintenance and protection of places of importance in the claim area under traditional laws and customs of the claim group over a long period of time. Not only is there such a right but, clearly, there is an obligation to do so which was regarded as a serious obligation, the breach of which would attract dramatic adverse detriments. The evidence as to where that obligation lay in respect of particular places of importance, under the traditional laws and customs of the claim group, was complex and sophisticated. It is not necessary to refer to its detail.

162 The evidence also establishes that the claim group, in accordance with their traditional laws and customs, exercise the right to regulate, and to prevent, the disclosure otherwise than in accordance with their traditional laws and customs, their beliefs and practices, including songs, rituals, ceremonies and representations of sacred images, which relate to areas of land or waters within the claim area. Certain of the evidence on that topic was given in closed session. It is not a matter which the Northern Territory disputes. It does however contend, as noted below, that it is not a right which is a native title right because it is not one which attaches to the land.

163 I am also satisfied that the claim group, according to its traditional laws and customs, has the right to regulate and determine its membership.

164 I therefore conclude that the claim group, according to its traditional laws and customs, enjoys the rights and interests within the claim area which are set out in [67] above. I shall separately consider whether those rights and interests are native title rights and interests recognised under the NT Act which have a connection with the interests recognised under the NT Act which have a connection with the land or waters in the claim area (see s 223(1)(b)) when considering issues of extinguishment and in my conclusions.

Extinguishment

165 In the light of my conclusion that the claimed native title rights and interests exist (subject to my being satisfied that they are rights and interests which fall within s 223(1)(b)) as expressed in the applicants’ proposed determination as set out in [67] above, it is necessary to consider whether they have been extinguished in whole or in part in accordance with or as recognised by the NT Act. If they have been extinguished, they will not be recognised by the common law of Australia: see s 223(1)(c).

166 In the proposed determination, the applicants recognise that their native title rights and interests in respect of the principal claim area (save for the right to assert and to be acknowledged as the Aboriginal owners of that part of the claim area in accordance with their traditional laws and customs) are not exclusive of the rights and interests of others.

167 They accept that the right to exclude all others from the claim area was extinguished by the grant of pastoral leases that conferred rights inconsistent with a native title right to control access to the land. Such an acknowledgment was appropriate in the light of the High Court’s decision in Ward, in particular in the judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ at 68, [192], 121, [417] and 122, [422].

168 They maintain the claim to exercise their native title rights and interests in respect of Hatches Creek to the exclusion of all others.

(1) The Position of the Parties

169 Before addressing the principles applicable to considering whether all or any of those claimed rights and interests have been extinguished, either totally or partially, it is convenient to identify the respective positions of the parties. I shall do so by reference to the claimed rights as set out in pars (a) – (j) of [67] above.

170 The Northern Territory submits at a general level that, whatever determination of native title rights and interests might be made, it should not adopt the applicant’s formulation in the introductory words as ‘rights to possess, occupy, use and enjoy’ the claim area. Ward, it is submitted, makes it clear that it is rarely either appropriate or sufficient to express the nature and extent of native title rights and interests in those terms (see at 30, [51]). It is further submitted that the granting of pastoral leases over the claim area necessarily extinguished the right to make decisions about the claim area, the right to control access to the claim area, and the right to control the resources of the land in the claim area. Hence, the Northern Territory contends, the use of a portmanteau expression such as ‘possession, occupation, use and enjoyment’ of the claim area is inappropriate.

171 The applicants do not agree with those contentions.

172 As the Northern Territory’s proposed determination illustrates, albeit in different terms, it does not contend that non-exclusive rights as expressed in pars (a), (b) and (g) of the applicants’ proposed determination should not be determined. It is convenient to repeat pars (a), (b) and (g):

‘(a) the right to hunt and fish, to gather and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax and to have access to and use of water on or in the land;

(b) the right to live on the land, to camp, erect shelters and other structures, and to travel over and visit any part of the land and waters;

…

(g) the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters;’

173 The applicants accept, at the other end of the spectrum, that the rights claimed in par (i) to determine and regulate the membership of and recruitment to a landholding group, is more appropriately recognised as part of their laws and customs, rather than being rights or interests in relation to the claim area. They do not press for its inclusion in their proposed determination.

174 The right expressed in par (c) of the proposed determination is as follows:

‘(c) the right to engage in cultural activities on the land, to conduct ceremonies and hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters and to participate in cultural practices relating to birth and death, including burial rites;’

The Northern Territory demurs to that claim also, provided it is recognised only in respect of the claim area, with one qualification. It contends that no native title right ‘to teach the physical and spiritual attributes of places and areas of importance’ on the claim area should be recognised. The applicants do not agree with that contention. The issue is whether the claimed right is one which has a connection with the claim area (s 223(1)(b) of the NT Act), or is more generally cultural knowledge which does not have such a connection. The issue was discussed in Ward at 31 – 32, [57] – [60]. The applicants have proposed an alternative formulation of the proposed right to accommodate, at least in part, the Northern Territory’s concern in the following terms:

‘(c) the right to engage in the following activities on the land:

(i) cultural activities;

(ii) the conduct of ceremonies;

(iii) meetings;

(iv) teaching the physical and spiritual attributes of places and areas of importance on or in the land and waters; and

(v) cultural practices relating to birth and death, including burial rights;’

175 The rights claimed in par (d) are as follows:

‘(d) the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements.’

176 The direct dispute between the parties focuses on the use of the word ‘protect’ and the extent of the powers which its use might convey. The Northern Territory considers that word may extend to entitling the applicants to control the access of others to, and to make decisions about, places of importance in the claim area in a way which is inconsistent with rights granted under pastoral leases, as pastoral leases have entitled pastoralists to have access to the leased areas generally, and to protect them from degradation by vermin, weather and the like. As inconsistent rights have been granted by such leases, the claimed right to the extent identified has, it is contended, been extinguished.

177 The applicants dispute that there is any such inconsistency between the rights claimed and rights granted under previous pastoral leases. They further point out that, in their proposed determination, they have included the following:

‘The relationship between the native title rights and interests described in paragraph 4 and the other rights and interests referred to in paragraph 9 is that:

…

178 As a fall-back position, the applicants would be prepared to substitute in their proposed determination the word ‘preserve’ for the word ‘protect’. However, as they point out, the use of apparently neutral synonyms may simply disguise the issue as to how the applicants’ right (if it is determined as they seek) may be exercised.

179 The rights claimed in pars (e) and (f) are as follows:

‘(e) the right to make decisions about access to the land and waters by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;

180 In Ward, the majority at 121, [417] said generally of pastoral leases in the Northern Territory:

‘However, the grants of the respective pastoral leases were inconsistent with the continued existence of the native title right to control access to and make decisions about the land. Those rights were inconsistent with the right of the pastoral lessee to use the land for pastoral purposes. The respective pastoral leases were not necessarily inconsistent with the continued existence of all native title rights and interests.’

Upon that basis, the Northern Territory contends that these claimed rights have been extinguished as they are in essence a subset of an exclusive right to control access to the claim area (which the applicants accept can no longer exist). The extinguishment of that right by pastoral leases is said to have removed any native title right to say who may or may not come on to the claim area. The Northern Territory contends that it is only rights of a ‘usufructuary kind’ which have survived.

181 The applicants dispute that the claimed rights have been extinguished on the basis asserted.

182 The right claimed in par (h) is as follows:

‘(h) the right to control the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters.’

183 The Northern Territory contends that the claimed right is not one which meets the requirement of s 223(1)(b), namely that it be in relation to the claim area. The spiritual beliefs upon which the claimed right is based, it is argued, may be about the claim area and its surrounding areas but does not have the quality necessary to fall within the definition of native title rights and interests in s 223(1) of the NT Act.

184 The applicants dispute that characterisation of the claimed right. They contend it falls within the definition of native title rights and interests. Their contentions are similar to those briefly discussed in [174] above (regarding protection of cultural knowledge).

185 The right claimed in par (j) is as follows:

‘(j) the right as against the whole world, including any other Aboriginal group or person, to assert and to be acknowledged as the Aboriginal owners of the land and waters in accordance with traditional laws and customs.’

The Northern Territory contends that this claimed right is an illustration of the rights and interests expressed by the applicants as being rights and interests ‘before they are translated into native title rights and interests’, similar to those expressed as a step towards a determination of native title as set out in [66] above, and should not be the subject of a determination of native title rights and interests.

186 The applicants dispute that contention and maintain the claim to have a determination in terms of par (j).

187 As appears in the proposed determination of native title rights and interests at [67], it is expressed to be ‘subject to paragraphs 5, 6 and 7’. Paragraph 5 recognises that no native title right and interest in relation to minerals and petroleum as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT)respectively have been established. The parties are agreed that this proposed qualification has no utility. Minerals and petroleum in the Northern Territory under that legislation have been vested in the Northern Territory, so any such native title rights as may otherwise have existed have been extinguished: see e.g. Ward at 113 – 114, [383] – [384]. The applicants claim that ochre is not a ‘mineral’ within that legislation. The Northern Territory does not, in this matter, gainsay that claim. It is recognised in par (a) of the applicants’ proposed determination in [67] above.

188 Paragraphs 6 and 7 contain the recognition by the applicants that their claimed native title rights and interests over the principal claim area are not exclusive, and the assertion of exclusive rights over Hatches Creek. The Northern Territory contends that any native title rights and interests over Hatches Creek are also not exclusive.

189 Paragraph 8 of the applicants’ proposed determination is as follows:

‘The native title rights and interests of members of the respective landholding groups referred to in paragraph 2 above, are held subject to and are exercisable in accordance with the traditional laws and customs of the common law holders.’

The parties are agreed that this should be included in any determination of native title rights and interests. The Northern Territory sees its significance as identifying the pre-sovereignty system of laws under which the native title rights and interests arise. The applicants see the paragraph as acknowledging that, within the claim group, the nature and extent of the native title rights and interests of sub-groups or individual members of the claim group or of the seven landholding groups may differ, and may be regulated in accordance with the relevant traditional laws and customs. The consideration of the existence of the claimed native title rights and interests, and of the nature of the claim group, illustrates that there may be differences in the extent to which the landholding or estate groups as part of the claimant group may enjoy native title rights and interests over the claim area, as there may be by different sub-groups or individuals. This paragraph of the proposed determination, in my view, performs both the functions identified by the applicants and by the Northern Territory.

190 Paragraph 9 of the applicants’ proposed determination is in the following terms:

‘9. The nature and extent of other interests in relation to the determination area (“the other rights and interests”) are as follows:

(a) In relation to Northern Territory Portions 4386 and 4387:

(i) the interest of the Conservation Land Corporation as the holder of Crown Lease Perpetual No 1117;

(iii) the interest of the Parks and Wildlife Commission in any buildings, structures or other works constructed or established on the land; and

(iv) the of any person with a right of access to the land conferred by or arising under a law of the Northern Territory or the Commonwealth.

(b) In relation to the Town of Hatches Creek, the interest of any person with a right of access to the land conferred by or arising under a law of the Northern Territory or the Commonwealth.’

191 The Northern Territory has made no submission with respect to subpar (a)(i) or subpar (b). It accepts the proposed wording in subpars (a)(ii) and (a)(iii). Whether that acceptance conceals an underlying disagreement emerges from other material which I shall consider when addressing the significance of ‘public works’ carried out on the principal claim area. The applicants have contended that much of the ‘public works’ do not legitimately warrant that description, and so have had no extinguishing effect as they are not previous exclusive possession acts. They contend alternatively that par 9(a)(iii) can refer only to those public works which were commenced to be constructed after 23 December 1996 and before 30 September 1998, are ‘public works’ as defined in s 253 of the NT Act, and are valid as ‘permissible future acts’ in relation to which the non-extinguishment principle applies (pursuant to the 1998 Act, Sch 5 of Pt 2 Item 3 and pursuant to Subdiv G-K of Div 3 of Pt 2 of the NT Act).

192 The Northern Territory seeks the expansion of subpar 9(a)(iv) to include the following as the ‘other interests’:

‘. Interests of the Crown pursuant to statute or otherwise in exercise of its executive power or held as the result of the assertion of sovereignty;

. rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power.

. rights of access to the land by agents, employees or instrumentalities of the Crown (in right of the Territory or the Commonwealth) as required in the performance of their statutory or common law duties;

. rights and interests of members of the public arising under the statute or common law.’

Its submission is based upon expressions used by O’Loughlin J in De Rose v State of South Australia [2002] FCA 1342 (De Rose) at [922], 8(c) to (f).

193 The applicants submit that the first of those proposed descriptions is a little ambiguous, but would accept the inclusion of an expression such as:

‘the interests of the Crown pursuant to statute or otherwise in exercise of its executive power.’

Having regard to s 11 of the NT Act, the interests of the Crown to which it refers must mean the existing interests of the Crown.

194 The applicants oppose the second of the two suggested additions as otiose. Any determination of native title, under s 225(c) of the NT Act, must determine the nature and extent of any other interests in relation to the claim area. Hence, they contend, the determination itself must have identified and addressed any such interests.

195 The applicants are not opposed to the terms of the third of the Northern Territory’s proposed expansions.

196 The applicants are opposed to the fourth of the Northern Territory’s proposed expansions of par 9(a)(iv). Their formulation is intended to accommodate or reflect the observations of the majority in Ward at 30, [50] and 114, [387]. It is confined to rights of access, rather than the much wider and therefore more amorphous expression proposed by the Northern Territory. To more fully complement subpar 9(a)(iii), the applicants suggest a modified expression in the following terms:

‘(iv) the interests of members of the public with rights of access to the land arising under statute’

197 Paragraph 10 of the proposed determination of the applicants is in the following terms:

’10. The relationship between the native title rights and interests described in paragraph 4 and the other rights and interests referred to in paragraph 9 is that:

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

(b) to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist;

(d) co-existing rights that are not inconsistent to any extent must be exercised reasonably, each party having regard to the interests of the other;

(e) In relation to the rights and interests conferred by or arising under Crown Lease Perpetual No 1117 (“the lease”):

a. the Crown Lands Act and the lease are the source of the rights and interests of the Conservation Land Corporation, the function of which is set out in s39 of the Parks and Wildlife Commission Act;

b. section 39(6) of the Parks and Wildlife Commission Act is the source of the rights and interests of the Parks and Wildlife Commission, the functions of which are set out in s 19 of the Act and which are limited to promoting the conservation and protection of the natural environment and the protection, conservation and sustainable use of wildlife;

c. the land and waters comprised in the lease have not been declared a park or reserve under s 12(1) of the Territory Parks and Wildlife Conservation Act;

d. Aboriginal people who have traditionally used the land and waters have the right to continue to do so in accordance with Aboriginal tradition for hunting, food gathering (otherwise than for the purpose of sale) and for ceremonial and religious purposes under s 122 of the Territory Parks and Wildlife Conservation Act;

e. Aboriginal people have a right of access to sacred sites in accordance with Aboriginal tradition under s 46 of the Northern Territory Aboriginal Sacred Sites Act;

(f) In relation to Northern Territory Portions 4386 and 4387, the native title rights and interests that are not inconsistent with and may be exercised notwithstanding the other rights and interests referred to in paragraph 9(a) are:

(i) the right to use the land and waters for hunting, fishing and the gathering of traditional resources for food and other domestic purposes, according to traditional laws and customs;

(ii) the right to use the land and waters for ceremonial and religious purposes, including conducting ceremonies, participating in other cultural practices and the transmission of cultural knowledge;

(iii) the right to live on the land for the purpose of conducting such activities;

(iv) the right to make decisions about access to and the use and enjoyment of the land and waters and the traditional resources thereof, for the purpose of conducting such activities;

(v) the right to access places and areas of importance and to maintain and protect them from damage, disturbance or interference;

(vi) the right to assert and to be acknowledged as the Aboriginal owners of the land and waters in accordance with traditional laws and customs.’

198 The Northern Territory’s contentions with respect to par 10 are limited.

199 It proposes an alternative expression to that of par 10(b) which, in substance, accords with par 10(b) in slightly different wording, but which adds the following:

‘The relationship between the native title rights and interests recognised by this Determination and the other rights and interests is that:

(a) to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist, but have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and

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

200 The applicants contend that there is no difference in real terms brought about by the proposed substitution, save that it may be too widely expressed, as its scope may extend beyond the exercise of rights under leases, licences, permits or other authorities.

201 The Northern Territory opposes par 10(d) on the basis that ‘the concept of reasonable user’ has no role to play. If activities may be carried out as of right on the claim area which are inconsistent with the claimed native title rights and interest, then s 44H states that those rights prevail. The applicants submit that par 10(d) is based upon observations of Beaumont and von Doussa JJ in Ward in the Full Court at 399, [312] where their Honours said:

‘To the extent that the grants brought about a situation where the Aboriginal people on the one hand, and pastoral lessees on the other, had coexisting rights to be present on the land for their respective purposes, the law required that those rights be exercised by each party reasonably, having regard to the interests of the other. Each was entitled to exercise their respective rights, subject to the requirement of reasonable user: see Boyle v Holcroft [1905] 1 IR 245; Peech v Best [1931] 1 KB 1; and Mason v Clarke [1955] AC 778.’

202 The majority judgment in Ward in the High Court does not appear to have commented upon that passage in the Full Court judgment. The applicants seek to preserve par 10(d) as, it is said, the expression is not inconsistent with the proper operation of s 44H. It applies to those holding native title rights and interests. It is also directed to conduct of persons exercising their respective rights and interests, and does not purport to direct when such rights or interests may be exercised or in what manner.

203 As to par 10(e), the Northern Territory points out that relevant limitations on non-native title rights and interests are ascertainable by reference to the statute or common law from which they arise, or the instrument reflecting the exercise of statutory or executive power. In De Rose at [921], O’Loughlin J said that reference to statutes should not form part of any determination under the NT Act. The applicants’ response is that s 225(d) of the NT Act requires the elucidation of the relationship between the native title rights and interests recognised by the determination and the ‘other interests’ to which s 225(c) refers. The Northern Territory has not suggested that the enumeration of the statutory references in par 10(e) is either inaccurate or incomplete. The result is that the dispute between the parties on this topic is more a matter of style than substance. I do not presently see, in the circumstances, that the applicants’ expression of the matters in par 10(e) is either unhelpful or inappropriate.

204 The Northern Territory’s contentions about par 9 also prompted the applicants to reconsider par 10(f) so that, if par 9 is amended to include a more specific description of the ‘other interests’, par 10(f) should also be amended to make it clear at its start that it refers to the other rights and interests in par 9(a)(i), (ii) and (iii). That is said to follow because CLP 1117 is a Category D past act to which the non-extinguishment principle applies, and par 10(f) is intended to reflect the other interests in CLP 1117. If CLP 1117 were to be cancelled, par 10(f) would be otiose.

205 The proposed determination of the applicants contains a Schedule in the following terms:

‘1. Areas subject to previous exclusive possession acts, having been excluded from the native title determination application, are excluded from the determination area in accordance with section 61A of the Native Title Act 1993 (Cth).

Public works

The areas on which the following public works as defined in s 253 of Native Title Act 1993 (Cth) are situated, including the land and waters defined in s 251D of the Act, are excluded from the determination area:

2. To avoid doubt, the roads excluded from NT Portions 4386 and 4387 as delineated on plan number S093/20A dated 30/08/1993 are excluded from the determination area.’

206 The Northern Territory points out that neither the pastoral leases over the claim area, nor the grant of CLP 1117, were previous exclusive possession acts. Hence it doubts the utility of the first part of par 1 of the schedule, although it does not specifically object to it. The applicants seek that that part of the schedule be preserved.

207 The Northern Territory agrees with the ‘public works’ exclusion from the claim area. There is a significant dispute as to whether the works which the Northern Territory asserts to be ‘public works’ do attract that description.

208 Paragraph 2 of the schedule reflects that the principal claim area is described by reference to CLP 1117: see [31] above.

(2) The Legal Context of Pastoral Leases

209 There is no dispute about the legislative regimes applicable to the Northern Territory from time to time.

210 Until 6 July 1863, the claim area was part of the boundary of the colony of New South Wales (from 1788 to the area east of meridian 135 degrees east, and from 1825 to meridian 125 degrees east).

211 On 6 July 1863, the land that presently comprises the Northern Territory, including the claim area, was annexed to the Province of South Australia. The law of South Australia was deemed to be the law of the Northern Territory, and all future South Australian statutes applied to the Northern Territory unless it was expressly excepted from their operation: see The Northern Territory Justice Act 1884 (SA).

212 On 1 January 1911 the Northern Territory ceased to be part of South Australia. It was surrendered to and accepted by the Commonwealth of Australia: see The Northern Territory Surrender Act 1907 (SA), and the Northern Territory Acceptance Act 1910 (Cth). The surrender was subject to all estates in, interests in, or rights in respect of, land in the Northern Territory in existence at the time of acceptance: The Northern Territory Surrender Act 1907 (SA), s 7. Estates and interests held from the State of South Australia were then held from the Commonwealth on the same terms and conditions: Northern Territory Acceptance Act 1920 (Cth), s 10. From 1 January 1911 to 1 July 1978 the laws of the Northern Territory were Ordinances of the Commonwealth: Northern Territory (Administration) Act 1910 (Cth).

213 The Northern Territory (Self-Government) Act 1978 (Cth) (the Self-Government Act) established a new body politic to be known as the Northern Territory of Australia. Pursuant to that Act, since 1 July 1978, the Northern Territory Legislative Assembly has had and has exercised the power to make laws for the Northern Territory. All existing laws of the Northern Territory continued to have the same operation as they would have had if the Self-Government Act had not been enacted: see s 57. All interests in land in the Northern Territory held from the Commonwealth immediately before the commencement of that Act were, from 1 July 1978, held from the Northern Territory on the same terms and conditions: s 69(3).

(3) The Principles concerning Extinguishment

214 The High Court decision in Ward at 35 – 36, [78] and at 40, [95] makes it clear that native title rights and interests can be characterised as a ‘bundle of rights’ which may be extinguished by rights granted by laws or by executive action which are inconsistent with native title rights and interests. Such laws or acts, which create rights in third parties in respect of a parcel of land otherwise subject to native title and which rights are inconsistent with the continued right to enjoy native title, may extinguish native title. See Mabo at 68, and Western Australia v Commonwealth of Australia (1995) 183 CLR 373 (the Native Title Act Case) at 422. The extinguishment of native title rights and interests may be effected by legislative or executive governmental acts: Ward at 37, [82].

215 Extinguishment may be total or partial, depending upon whether the inconsistent rights and interests taken individually in relation to each of the native title rights and interests are totally inconsistent with, or only partially inconsistent with, the native title rights and interests. To determine inconsistency, and so to determine whether all or any of the native title rights and interests have survived, the Court should apply the inconsistency of incidents test as explained in Ward at 35 – 36, [78] – [79], and 37, [82]. If the right or rights granted legislatively or executively are inconsistent with native title rights and interests, there will be extinguishment to the extent of the inconsistency. I do not accept, as the Northern Territory contended in its submissions in reply on extinguishment, that the extinguishing effect of the grant of pastoral leases on native title rights to control access to and use of the demised lands does not depend solely on the extent to which rights and interests granted to the lessee are inimical to native title. It submitted the extinguishing effect depends on the ‘act of granting’ the lease as demonstrating an assertion by the Crown of its entitlement to determine who shall have the rights of occupation, possession, use and enjoyment of the claim area. In my view, that contention does not correspond with the inconsistency of incidents test. It is of course the fact that the Crown, at least until the RD Act, could have extinguished native title rights and interests by a grant of an interest in land. In many places in Australia it did so, and s 223(1)(c) of the NT Act has the effect that by reason of such grants, native title rights and interests did not survive. But the existence of that power did not extinguish native title. And the exercise of the power extinguished native title only to the extent that the rights then granted were inconsistent with the pre-existing native title rights and interests.

216 The NT Act itself deals with extinguishment of native title rights in a number of different contexts. Section 11(1) provides that native title is not able to be extinguished contrary to the Act. Section 11(2) spells out that s 11(1) applies only to extinguishment of native title by legislative acts after 1 July 1993 (the commencement of the NT Act). In substance, no legislative extinguishment of native title after that date can be effected unless it complies with the future act procedures prescribed in the NT Act. Section 11 also precludes the Commonwealth, the States or the Territories from legislating after 1 July 1993 so as to retrospectively extinguish native title unless it is done in accordance with Div 2B of Pt 2 of the NT Act, dealing with the confirmation of past extinguishment of native title or in accordance with Div 3 Pt 2, which deals with future acts.

217 In addition, s 11 relates to acts which may validate ‘past acts’ or ‘intermediate period acts’ in relation to native title. Validation of past acts (past acts are defined in s 228 of the NT Act) is dealt with in Div 2 of the NT Act. A past act is a legislative act done before 1 July 1993, or other act of the Crown done before 1 July 1994, which had extinguished native title but had a discriminatory effect and was invalidated by the Racial Discrimination Act 1975 (Cth) (the RD Act). The RD Act is not referred to in the definition, but it is common ground that invalidity by reason of the RD Act is what Div 2 concerns. It is also common ground that none of the grants of interest in the claim area made prior to 1 January 1994 are ‘past acts’ for the purposes of the NT Act other than (arguably) CLP 1117. The Northern Territory also acknowledges that none of the grants of interest made after the commencement of the RD Act other than (arguably) CLP 1117 had any further extinguishing effect on native title, additional to the effect of earlier grants.

218 Division 2A of Pt 2 of the NT Act concerns the validation of ‘intermediate period acts’, as defined in s 232A of the NT Act. An intermediate period act is one which took place after 1 January 1994 but before 23 December 1996, and was invalid because of the existence of native title and was over land covered by a freehold estate, a lease (except a mining lease) or a public work. It is common ground that the only acts which are capable of being ‘intermediate period acts’ relevant to the present application are public works constructed or established in the claim area between 1 January 1994 and 23 December 1996. If such public works were invalid because of the existence of native title (which the Northern Territory disputes), then they have been validated and native title has been extinguished in relation to the claim area to the extent to which public works are situated on the claim area extending to adjacent ‘service’ areas.

219 It will be necessary, in due course, to address separately the works in respect of which the Northern Territory contends that there has been extinguishment, either partial or total, of certain native title rights and interests by reason of public works on the claim area.

220 The NT Act contemplates that validation of past acts, or intermediate period acts will operate in relation to the Commonwealth automatically and in respect of states or territories by the passing of relevant enactments. It also contemplates a similar regime in respect of Div 2B of Pt 2 of the NT Act. The Northern Territory,bythe Validation of Titles and Actions Act 1994 (NT) subsequently renamed the Validation (Native Title) Act (NT) (the Validation Act), has legislated to validate its past acts and its intermediate periods acts in relation to native title and to apply the provisions of Div 2B of Pt 2 of the NT Act. Section 3C of the Validation Act makes it plain that it does not purport to establish a code for extinguishment.

221 More significantly to the present application, Div 2B of Pt 2 of the NT Act provides for the confirmation of past extinguishment of native title by certain valid or validated acts. It relates to acts attributable to the Commonwealth up to 23 December 1996, or acts which States and Territories have legislated in respect of acts attributable to them, to completely or partially extinguish native title. As noted, the Validation Act has so legislated. There are two categories of acts to which reference is made. They are ‘previous exclusive possession acts’ and ‘previous non-exclusive possession acts’.

222 The Northern Territory does not contend that there are any relevant previous exclusive possession acts, which have completely extinguished native title. Principally, it contends that pastoral leases granted in the Northern Territory over the claim area are ‘previous non-exclusive possession acts’ as defined in s 23F(2) of the NT Act. The extinguishing effect of the pastoral leases is then set out in s 9M of the Validation Act, the equivalent to s 23G(1)(b) of the NT Act. The term ‘exclusive pastoral lease’ is defined in s 248A of the NT Act to mean a pastoral lease that confers a right of exclusive possession over the land or waters covered by the lease, or to be a ‘Scheduled interest’. Section 248B defines a non-exclusive pastoral lease to be a pastoral lease that is not an exclusive pastoral lease. None of the pastoral leases in respect of the claim area previously granted are contended to be exclusive pastoral leases. ‘Scheduled interest’ is defined in s 249C. To the extent to which the extinguishing act (relevantly the non-exclusive pastoral lease) involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the claim area, the extinguishing act extinguishes native title rights and interests under the NT Act.

223 Before turning to the particular extinguishing acts asserted on behalf of the Northern Territory, it is convenient to identify briefly the ‘inconsistency of incidents’ test. Inconsistency is resolved as a matter of law by comparing the legal nature and incidents of the existing native title right or interest and of the right or interest which has been granted legislatively or executively: Ward in the Full Court at 341, [71].

224 The emphasis is on the rights granted by a legislative or executive act to the competing interest holder, rather than on the actual exercise of those rights by that person: Ward at 35, [78], 73, [215] – [216], and 78, [234]. It may not immediately appear that the grant of power to a third person is necessarily inconsistent with existing native title rights and interests. However, the operation or exercise of such powers in the future may evidence the existence and extent of an inconsistent right. It is the grant of the right itself which has the extinguishing effect: Ward at 73, [215], rather than its exercise.

225 Partial extinguishment of native title occurs when some, but not all, of the rights and interests which together make up native title are extinguished by the creation of inconsistent rights by laws or executive acts. In this case, the Northern Territory does not contend that native title rights and interests have been extinguished, but says that the past grant of pastoral leases conferred rights and interests which were inconsistent with the continued existence of certain of the native title rights and interests claimed. To that extent they have been extinguished, and in some respects absolutely extinguished. The nature and extent of the dispute is revealed by the comparison of the proposed determination of the applicants and of the Northern Territory set out above.

226 It is of course plain that successive grants of, for example, a pastoral lease may have a cumulative effect. Native title rights and interests not extinguished by one grant that brought about partial extinguishment may later be extinguished by another grant. In Ward in the Full Court at 349 – 350, [109] the majority (Beaumont and von Doussa JJ) said:

‘In our opinion the rights and interests of indigenous people which together make up native title are aptly described as a “bundle of rights”. It is possible for some only of those rights to be extinguished by the creation of inconsistent rights by laws or executive acts. Where this happens “partial extinguishment” occurs. In a particular case a bundle of rights that was so extensive as to be in the nature of a proprietary interest, by partial extinguishment may be so reduced that the rights which remain no longer have that character. Further, it is possible that a succession of different grants may have a cumulative effect, such that native title rights and interests that survived one grant but brought about partial extinguishment, may later be extinguished by another grant.’

On the other hand, as both parties contended, some later grants will have no extinguishing effect at all because prior events or acts would have already partially extinguished native title. For example, the subsequent grant of pastoral leases, where there has been a previous pastoral lease granted in similar terms, would have no additional extinguishing effect. The same may be said with respect to grants of pastoral permits which may otherwise have had some extinguishing effect, if there had not been prior partial extinguishment by pastoral leases.

227 That common position adopted by the parties means that it is not necessary, as it might otherwise have been, to analyse in detail the full nature and extent of each grant of an interest, either legislatively or executively, over some part of the claim area. It is not contended that pastoral permits, grazing permits, mining permits and the like have had any additional extinguishing effect over the native title rights and interests which might have been found to exist, beyond the extinguishment which has been effected by pastoral leases. Nor, although the pastoral leases have been issued over different parts of the claim area over different times, and have been granted under different legislative regimes (to be discussed below), is it suggested that the successive pastoral leases have had different and additional extinguishing effects.

228 Native title, once extinguished, cannot be revived: Ward in the Full Court at 349 – 350, [109]. Sections 47, 47A and 47B of the NT Act provide that, in certain limited circumstances, prior extinguishment of native title rights and interests is to be disregarded for the purposes of the application of the NT Act. Relevantly to the present matter, s 47B of the NT Act might apply in respect of Hatches Creek. Section 47B applies if, at the time the application is made, the Hatches Creek area was not covered by a proclamation under which it is to be used for public purposes or for a particular purpose. The Northern Territory accepts that, following the decision of Olney J in Hayes v Northern Territory (1999) 97 FCR 32 (Hayes) at 116 – 119, [122] – [128], the operation of s 47B in relation to Hatches Creek is not precluded. Section 47B(1)(c) requires also that at the time of the application, one or more members of the native title claim group occupy the area. It contends that ‘the area’ is Hatches Creek rather than the wider claim area. It does not accept that the applicants did occupy Hatches Creek at the time of the application.

229 Section 47B(2) of the NT Act provides:

‘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.’

230 It will, therefore, be necessary to address s 47B in relation to Hatches Creek in due course.

(4) Extinguishing Acts

231 The only current instrument granting rights in respect of the claim area is CLP 1117. CLP 1117 concerns only the principal claim area. There is no current grant relevant to Hatches Creek.

232 All of the claim area has at some time or another between 1881 and 1902 been subject to a pastoral lease. There has also been other pastoral ‘tenure’ including pastoral claims and pastoral permits, as well as grazing licences.

233 The principal claim area was first subject to a land grant on 1 October 1881. Since that time the claim area has continuously been subject in various parts and at various times to a total of some 20 pastoral leases. The first grant of land within the claim area or part of it was pastoral lease (PL) 207 issued under the Northern Territory Land Act 1872 (SA). Its area included only a small section on the southern boundary of the claim area. It was cancelled on 3 April 1890. It was granted for ‘grazing and other pastoral purposes’, and was expressly subject to reservations. In particular, it reserved ‘for and on account of the present Aboriginal inhabitants of the Province and their descendants’ the following:

‘ … full and free right of ingress, egress and regress into and upon, and over the said Waste Lands of the Crown hereby demised and every part thereof and in and to the springs and surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this demise had not been made.’

234 By 1890, further pastoral leases (PL 1346, 1353, 1388, 1389 and 1428) had been granted under The Northern Territory Crown Lands Consolidation Act 1882 (SA) to cover the whole of the eastern part of the claim area, to an area a little to the west of the Anurette ALT area and surrounding areas. Each of those land grants was for grazing and other pastoral purposes, and contained a reservation of rights for the Aboriginal occupants and their descendants in similar terms. PL 1453 and PL 1486 were issued in respect of the western part of the claim area previously not the subject of pastoral leases and surrounding areas. Those pastoral leases, together with PL 1487, 1955 and 1973 were granted under The Northern Territory Crown Lands Act 1890 (SA). Each of those leases also contained a reservation in favour of Aboriginal people in similar terms.

235 Those pastoral leases had all been cancelled by 16 January 1902.

236 There appears to have been an hiatus in non-Aboriginal rights over the claim area then until 1908. Thereafter a regime of pastoral permits and grazing licences was established, effective at least between 1908 and 1922, first through South Australia and then through the Commonwealth. In the South Australian Government Gazette on 31 July 1902, the Minister controlling the Northern Territory published the following:

‘Notice is hereby given that all lands in the Northern Territory recently available for pastoral purposes have been withdrawn from application as pastoral leases but may be applied for under annual lease.’

237 In 1908, three pastoral permits were issued covering various portions of the north-east section of the principal claim area. Two of them lapsed on 30 July 1910 and the third on 17 November 1917. On 17 August 1911, the Commonwealth issued pastoral permit 297 which also covered much of the north-easterly section of the claim area and surrounding areas, but extended further towards the centre of the claim area. It expired on 16 August 1917. It is not suggested by the Northern Territory that those pastoral permits effected any extinguishment of native title rights and interests to any degree beyond such extinguishment as had already occurred, so it is not necessary to refer to them further, or to the fact that they covered only a part of the principal claim area, and in the case of one of the pastoral permits, Hatches Creek and surrounds. From 1914, the Commonwealth issued a series of grazing licences which variously expired up to 16 August 1927. They also covered some, but not all, of the claim area from time to time. They also are not said by the Northern Territory to have caused any extinguishment of any native title rights and interests which then existed beyond such extinguishment as had already occurred by the grant of pastoral leases.

238 On 1 October 1921, PL 2489 and 2490 were issued under the Crown Lands Ordinance 1912-1923 (Cth). They covered a large proportion of the principal claim area and areas to its north, but did not encompass the north-western section of the claim area or its south-eastern section surrounded by the Anurette ALT. Those are the only two pastoral leases which did not contain a reservation in favour of Aboriginal people. Olney J in Hayes addressed the legal effect of such leases without such a reservation as granted under the 1912 Ordinance. Subsequently, PL 135, 136 and 137 were issued under the Crown Lands Ordinance 1924-1927 (Cth), and PL 644 under the Crown Lands Ordinance 1931-1959 (Cth). PL 136 had previously been grazing licence 371 commencing on 16 January 1925. PL 2489 and 2490 had also previously been granted as grazing licences 351 and 352 on 1 October 1921. Further grazing licences numbered 397 and 398 were also issued in respect of parts of the claim area on 1 July 1925, but they each expired on 30 June 1926. PL 2489 and 2490 were determined on 25 June 1925. Grazing licences 397 and 398 expired each on 30 June 1926 or thereabouts.

239 On 1 July 1928 PL 135, 136 and 137 commenced. They covered all of the claim area other than its north-western section, and Hatches Creek. They also covered some surrounding areas. PL 136 was determined on 28 October 1938. PL 135 and 137 determined on 13 July 1962. After the determination of PL 136, various grazing licences were issued successively in respect of the land which was subject to PL 136 (containing or occupying only the southern part of the claim area below the land occupied by the Anurette ALT) by a series of grazing licences being numbered up to 1789 effective from 25 February 1960.

240 In the meantime, the remaining north-western portion of the claim area was occupied, together with an area to its west, by grazing licence 1583 issued on 21 February 1956. It was cancelled on 8 April 1958. It subsequently became grazing licence 1658 issued on 11 August 1958 which expired on 30 June 1959.

241 PL 644, over the whole of the claim area other than Hatches Creek and that portion of the claim area to the south of the Anurette ALT, was granted on 1 July 1961. It extended for a considerable area north of the claim area. PL 135 determined on 13 July 1962 and became part of PL 644. The same area, upon the expiration of PL 644, was subject to PL 841 granted on 1 July 1981. PL 644 was granted under the Crown Lands Ordinance 1931-1959 (Cth). PL 841 was granted under the Crown Lands Act (NT).

242 On 26 February 1993 the then leaseholders of PL 841 agreed to its partial surrender. The agreement was made between the Northern Territory, the Commission, and the pastoral lessees. They proposed to surrender that portion of PL 841 which occupies the principal claim area (excluding that portion of the principal claim area to the south of Anurette ALT). On 31 May 1993 PL 841 expired and Perpetual Pastoral Lease 1109 (PPL 1109) was granted to the former lessees. It was granted under the Pastoral Lands Act (NT).

243 It was part of the arrangement for the surrender of part of PL 84 that the surrendered area be surveyed to form NT portions 4386 and 4387. On 30 August 1993, the Minister for Lands, Housing and Local Government lodged with the Registrar General under s 12 of the Crown Lands Act (NT) a ‘notice of a right to a grant of an interest’, stating that the Corporation possessed a right to the grant of CLP 1117 over NT portions 4386 and 4387. In accordance with the arrangement, by instrument made on 3 September 1993, the land comprising NT portions 4386 and 4387 was surrendered from PPL 1109. Subsequently, on 22 September 1993 the grant of CLP 1117 to the Corporation for ‘Conservation Land Corporation purposes’ was registered, commencing on 30 August 1993. That is the principal claim area. It has not yet been declared a park or a reserve under s 12 of the Territory Parks and Wildlife Conservation Act (NT) (the TPWC Act).

244 The Northern Territory has used an abridged and recent description of the tenure history to make its point that there has been partial extinguishment of Aboriginal rights and interests in respect of the claim area. Its point is made, it contends, by PL 644 granted on 1 July 1961 for a term of 50 years pursuant to the Crown Lands Ordinance 1931-1959 (Cth). It was surrendered on 18 June 1982 and became PL 841 under the Crown Lands Act (NT). Both of those pastoral leases were ‘subject to a reservation in favour of the Aboriginal inhabitants of the Northern Territory’ in the terms set out in s 24E of the Crown Lands Ordinance 1931-1959. PL 841 was effective to 30 June 2001, having been granted on 1 July 1981. As noted, on 26 February 1993 an agreement was entered into between the Northern Territory, the Commission and the leaseholders for the surrender of part of PL 841 and the grant of that land to the Corporation. It led ultimately to the grant to the leaseholders of PPL 1109 on 1 July 1993 under s 130 and 131 of the Pastoral Lands Act 1992 (NT), its partial surrender on 3 September 1993, and the grant to the Corporation of CLP 1117. PPL 1109 was subject to a reservation in favour of Aboriginals as set out in s 38(2) of the Pastoral Lands Act.

245 Section 23(b) of the Crown Lands Ordinance 1964 (Cth) provided:

‘Leases … shall contain reservations, covenants, conditions and provisions, as follows:

…

(e) a reservation in favour of the Aboriginal inhabitants of [the Northern Territory] shall be read as a reservation given to all Aboriginal inhabitants of [the Northern Territory] and their descendants full and free right of ingress, egress and regress into, upon and over the leased land and every part thereof, and into the springs and natural surface water thereon, and to make and erect thereon such wurlies and other dwellings as those Aboriginal inhabitants have before the commencement of the lease been accustomed to make and erect, and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if the lease had not been made.’

246 Section 37 of the Crown Lands Act 1992 (NT) provided at the time:

‘(2) In a lease under this Act, a reservation in favour of the Aboriginal inhabitants of the Territory shall be read as a reservation permitting those Aboriginals –

(a) who ordinarily reside on; or

(b) who, by Aboriginal tradition, are entitled to use or occupy;

the leased land –

(d) notwithstanding any other law of the Territory, to take and use the water from the natural waters and springs on the leased land; and

(f) subject to any other law in force in the Territory …’

247 As noted above, Hatches Creek was first included in a pastoral lease in PL 1388 commencing on 1 January 1890 or 1 January 1893. PL 1388 commenced on 1 January 1893, but an identically numbered lease was issued on 14 December 1890 under The Northern Territory Crown Lands Consolidation Act 1882 (SA). Hatches Creek was subsequently included in PL 1973 and grazing licence 107. On 19 March 1919 Hatches Creek was proclaimed as part of the Animbra Commonage Reserve. There is no evidence of any use of the reserved land for ‘commonage purposes in connection with the mining fields of Hatches Creek’, which was its proposed purpose. The Animbra Commonage Reserve was declared invalid by the Crown Lands (Validation of Proclamations) Ordinance 1976 (Cth). In 1952, part of the reserve was surveyed for the site of a town. In 1953 about 67 acres were excised from the Animbra Commonage Reserve by part revocation of the 1919 reservation and Hatches Creek was ‘constituted a new town to be called the town of Hatches Creek’. All Crown land in the town was set apart as town lands. The area was exempted from occupation by the holders of miner’s rights. In September 1953 certain land was notified in the Commonwealth Gazette as town land available for leasing as perpetual Crown leases. There is no evidence of the grant of a lease over any of these lots. At the time of the application all lots were vacant Crown land.

248 The proclamation of the township of Hatches Creek was effected by proclamations made in the Northern Territory Government Gazette of 22 July 1953.

(5) The Effect of the Extinguishing Acts

249 As noted earlier, the Northern Territory in the light of the decision of the majority in Ward does not contend that any of the pastoral leases granted in respect of the principal claim area or Hatches Creek are previously exclusive possession acts as defined in s 23B of the NT Act. It contends that they are previous non-exclusive possession acts as defined in s 23F(2) of the NT Act, being non-exclusive pastoral leases which were valid and granted before 23 December 1996. The extinguishing effect of the grant of the pastoral leases is that set out in s 9M of the Validation Act. Thus, it contends, to the extent that the grant of any pastoral lease involved the grant of rights and interests inconsistent with native title rights and interests in relation to the land and waters covered by the pastoral lease concerned, native title rights have been extinguished to the extent of the inconsistency. If there has been such an extinguishment, s 237A of the NT Act provides that the extinguishment is permanent. A subsequent grant of a pastoral lease which itself would otherwise extinguish native title will have no extinguishing effect because of the earlier extinguishment.

250 The Northern Territory also accepts that the terms of the pastoral leases are not inconsistent with all native title rights to have access to, occupy, use and enjoy the land with the consequence that some rights of native title holders could co-exist with those of the pastoralists. In addition, although PL 2489 and PL 2490 issued under the Crown Lands Ordinance 1912-1923 (Cth) did not contain a reservation in favour of Aboriginals, the Northern Territory does not contend that those pastoral leases had any further extinguishing effect than those earlier granted.

251 Moreover, the Northern Territory recognises the significance of the express reservations in favour of the Aboriginal inhabitants of the Northern Territory in all but two of the pastoral leases. The wording of the reservations has varied slightly from time to time. The Northern Territory summarises the rights of Aboriginal people under the reservations as rights to:

(a) enter on the leased land;

(b) access the springs and natural surface water;

(d) take and use for food birds and animals ferae naturae.

252 The Northern Territory also accepts, as the applicants contend, that the reservations in the leases did not replace native title rights with statutory rights. They simply preserved existing native title rights.

253 The NT Act and the Validation Act (commencing on October 1998) provide the starting point for determining the extent to which, if at all, the native title rights and interests which I have found to have been otherwise established have been extinguished.

254 As noted above, the starting point is to look at the statutory scheme to determine whether any acts which are said to extinguish native title are covered by Div 2, 2A or 2B of the NT Act. If an alleged extinguishing act is not a ‘past act’ or an ‘intermediate period act’, so it is not covered by the provisions of Div 2B, it will then be necessary to consider whether the act nonetheless had the effect of extinguishing native title at common law: Validation Act, Pt 3C.

255 The parties are agreed that the pastoral leases granted over the claim area are previous non-exclusive possession acts. Section 23G of the NT Act and Pt 3C of the Validation Act have the effect that:

(a) the grant of rights and interests that are not inconsistent with native title rights and interests may prevail over them but do not extinguish them;

(b) the grant of rights and interests that are inconsistent with native title rights and interests and, apart from the NT Act, permanently extinguish native title rights and interests; and

(c) the grant of rights and interests that are inconsistent with native title rights and interests, but which do not, apart from the NT Act, permanently extinguish the native title rights and interests, suspends the native title rights and interests while the lease is in force: see e.g. the NT Act s 23G(1)(a), (b)(i) and (b)(ii) and s 237A as to the meaning of ‘extinguish’.

256 All of the pastoral leases granted over the claim area or parts of it are previous non-exclusive possession acts. They are non-exclusive pastoral leases. The grant of the pastoral leases variously conferred rights and interests inconsistent with the continued exercise of all incidents of native title and they extinguish native title to the extent of the inconsistency. On the other hand, the terms of pastoral leases granted in respect of the claim area or parts of it are not inconsistent with all native title rights to have access to, occupy, use and enjoy land in the claim area. Some native title rights could and do co-exist with the rights of pastoral lessees.

257 The rights of pastoralists were described by the Northern Territory in general terms as follows:

(a) to use the land for pastoral purposes;

(b) to occupy and reside upon the land;

(d) to control entry by other persons onto the land, except where those persons come onto the land pursuant to reserve rights;

(e) to make and maintain improvements on the land;

(f) to cut timber for use on or in connection with the land, to the extent permitted by the lease;

(g) to clear the land to the extent and in the manner allowed by the relevant act or regulations under the relevant act.

258 As noted, the Northern Territory contends that any native title right to make decisions about the use and enjoyment by others of the claim area was extinguished by the grant to pastoral lessees of the right to make decisions about the use to which the claim area may be put for pastoral purposes, including to make improvements required or envisaged by the pastoral leases, and to comply with covenants in the pastoral leases. There is also a significant dispute in relation to access. The Northern Territory contends that no native title right to control access by a lessee or by any persons whom the lessee permitted to enter could survive the grant of the pastoral leases.

259 The Northern Territory’s written submission about those matters is quite short. It is in the following terms:

‘It is clear from the terms of the reservations that no bare “right to make decisions” is preserved as a separate right. Conceptually, a “right to make decisions” must be linked with the right that a person has to occupy, use and enjoy the land. The scope of any native title right to make decisions which is preserved upon the grant of a pastoral lease must also be limited by the scope of the reservation; that is, limited to the right to make decisions about the use and enjoyment of the land by the native title holders for those purposes which fall within the reservation.

Similarly, a right to control access by others involves a right to make decisions about who can enter the land; no right to control access by others is preserved by the reservations in pastoral leases.

Effective and timely decision-making does not sit comfortably with co-existing rights to make decisions about the use and enjoyment by others of the land, and co-existing rights to control access, where the potential for conflict arises.

The first respondent contends that any native title ‘right’ to make decisions about the use and enjoyment of the land by others, and to control their access to the land, was extinguished by the grant of pastoral leases over the claimed area.’

260 The Northern Territory does not contend that the four pastoral permits issued over parts of the claimed area, or the 16 grazing licences granted over parts of the claimed area had any greater extinguishing effect at common law than the grant of the pastoral leases. Those instruments affirm that the extinguishing effect must have been at least to remove any exclusive native title rights to occupy, use and enjoy the land, but they did not have any further extinguishing effect additional to the extinguishing effect of any pastoral leases.

261 To determine the legal incidents of a pastoral lease, it is necessary to examine the provisions of the relevant statute and the terms and conditions of the lease as a whole, including any reservation in favour of Aboriginal people. In the majority judgment in Ward at 35 – 36, [78] their Honours said:

‘That is an objective inquiry which requires identification of and comparison between the two sets of rights. Reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used. Any particular use of land is lawful or not lawful. If lawful, the question is what is the right which the user has. If it is not lawful, the use is not relevant to the issues …’

262 In general terms, the majority judgment in Ward accepted the ‘bundle of rights’ approach of the majority (Beaumont and von Doussa JJ) in Ward in the Full Court, and applied the inconsistency of incidents test as described.

263 At 116 – 123, [396] – [425] the majority judgment in the High Court in Ward dealt with pastoral leases in the Northern Territory. Their Honours described the legislative structure under which pastoral leases were granted from time to time, and the reservations of Aboriginal interests in those leases. Their Honours’ conclusion at 134, [468] was as follows:

‘The successive grants of pastoral leases over what is now the Territory claim area were inconsistent with the continued existence of the native title right to be asked permission to use or have access to the land. They were not, however, necessarily inconsistent with the continued existence of all native title rights and interests. They were non-exclusive pastoral leases and Pt 3C of the Territory Validation Act was engaged.’

264 It may be seen that a reservation in favour of Aboriginal people in the pastoral leases (other than the two pastoral leases to which I have referred) indicates clearly that native title rights described in the reservation were held back from the grant and could continue to be enjoyed by Aboriginal people. Moreover, the reservation indicated clearly that the pastoral leases did not extinguish all native title rights and interests or substitute for them statutory rights. The reservations firstly defined the scope of Aboriginal rights and interests which were preserved upon the grant of a pastoral lease. Native title rights, not in terms included in the reservation in the pastoral leases, were susceptible to extinguishment, and were extinguished ‘to the extent of inconsistency of rights granted under the pastoral leases’. In Ward in the Full Court at 406 – 407, [340], the majority said that:

‘… (the pastoral leases) operate to define the scope of the Aboriginal rights which were preserved. Insofar as the terms of the reservations did not include Aboriginal rights, those rights were susceptible to extinguishment, and were extinguished to the extent of inconsistency with rights granted under the pastoral lease.’

Beaumont and von Doussa JJ in Ward in the Full Court also pointed out that, by reason of the context in which and the terms by which the pastoral leases were granted, it was contemplated that Aboriginal people and pastoralists would have some co-existing rights over the land which the common law required to be exercised reasonably, having regard to the other co-existing interests: at 406 – 407, [340] and [342].

265 The rights preserved by the reservation have been expressed slightly differently in the reservations from time to time, but are essentially the same. They are the rights to enter and to be on the land, to have access to springs and natural waters on the land, to erect shelters and to live on the land, and the right to obtain food. The submissions of the parties do not identify that anything turns upon the terms of a particular reservation. It is not necessary to refer, in the circumstances, in detail to the terms of each piece of legislation under which the pastoral leases were granted or to the terms of each reservation. The High Court in Ward in the passage referred to above of the majority judgment sets out that material in some detail.

266 Each of the enactments under which the pastoral leases were granted included a power to grant a lease for grazing or other pastoral purposes for a limited period, subject to conditions, and subject to clauses for forfeiture and resumption. In each instance there was an entitlement reserved to the Crown to resume the whole or part of the land for public purposes on six months notice. The leases variously contained reservations for entry by the authorities to cut and remove timber, or to search for and work mines and minerals, for resumption, and for the travelling of stock by the public along stock routes, and for entry for the purposes of laying roads. Each enactment prescribed penalties for unauthorised occupation and use of demised lands. They variously contained a provision for a condition to be inserted in leases for the protection of Aboriginals. The reservation in favour of Aboriginal people imposed in pastoral leases under the Northern Territory Crown Lands Act 1890 (SA) had changed a little to the following terms:

‘Excepting out of this lease to Aboriginal Inhabitants of the Province and their descendants during the continuance of this lease full and free rights of ingress, egress and regress into, upon and over the said lands and every part thereof and in and to the springs and natural surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food, birds and animals ferae naturae in such manner as they would have been entitled to do if this demise had not been made …’

267 In respect of PL 841 issued under the Crown Lands Act (NT) on 17 February 1982, it should be noted that s 24(e) (introduced by the Crown Lands Ordinance No 3 1978, s 6) substituted for s 24(e) the following:

‘(2) Subject to subs (3) in any lease under this Ordinance a reservation in favour of the Aboriginal inhabitants of the Northern Territory shall be read as a reservation permitting the Aboriginal inhabitants of the leased land and the Aboriginal inhabitants of the Northern Territory who, in accordance with Aboriginal tradition, are entitled to inhabit the leased land –

(a) to enter and be on the leased land;

(b) to take and use for natural waters and springs on the leased land;

(c) subject to any other law enforced in the Northern Territory, to take or kill for food or for ceremonial purposes animals ferae naturae on the leased land; and

(d) subject to any other law in force in the Northern Territory, to take for food or for ceremonial purposes any vegetable matter growing naturally on the leased land.

…

(6) Where a lease under this Ordinance contains a reservation in favour of the Aboriginal inhabitants of the Northern Territory a person shall not, without just cause, interfere with the full and free exercise, by the persons thereby entitled, of the rights reserved to them.’

Unlike earlier leases, provisions of that Act extended to enable the whole or part of any lease to be used for agricultural development or for any other purposes permitted by the Minister.

268 The reservation clause in the various pastoral leases is not said to have any significant difference in meaning or effect. As originally drafted, and as it appeared in subsequent instruments, it appears to have been premised upon the basis that Aboriginal people had existing rights that could continue to be exercised and enjoyed during the term of a pastoral lease. They contemplated the continuing of existing practices, in their terms, by reference to previous customs or to the manner in which such rights had previously been enjoyed. They reflected an intention that Aboriginal people should continue to have access to, and to be able to live on, land held under the pastoral lease, and in general terms that they would do the things that they had always done and which, in accordance with Aboriginal tradition, they were entitled to do. I conclude that, in preserving the express reserved rights to Aboriginal persons, including to enter and remain on the pastoral land, and to continue certain activities on the pastoral land incidental to their presence, it was not intended that the leases would preclude Aboriginal persons from doing all other things not expressly provided for in the reservation.

269 The reservations in each of the leases (save for that issued in 1979) reserved ‘full and free right of ingress, egress and regress into, upon and over the leased land in every part thereof …’. The reservations contained no geographical limitation excluding enclosed or improved areas.

270 It is obvious that rights under pastoral leases and statutory rights of entry for explicit purposes meant that native title holders would not have been able to prevent persons from entering the land in the exercise of those rights. On the other hand, the rights granted to the pastoral lessees were not rights granted to all persons, and pastoral lessees were obliged to exercise their rights for the purpose of the lease. The preserved rights are those to a pastoral lessee permitting access by the lessee or persons to whom the lessee permitted to enter, and reserved or statutory rights for reserved purposes such as stock routes. I do not consider that it is inconsistent with such rights that the native title right to control access to the land should survive to exclude persons who might wish to enter the land to do things unrelated to the pastoral lease or without some other reserved or statutory rights.

271 Let it be supposed that only one pastoral lease had been granted over the claim area and that lease had survived only one year. To the extent that it empowered the pastoral lessee and the lessee’s invitees to enter upon the claim area, the grant of the lease would be inconsistent with the exclusive native title right to control the access of persons to the claim area. The right could not revive. But the inconsistency arises because the pastoral lease authorised the entry of a definable group of persons under it. It did not authorise the entry of all or any persons under it. The lessee could exclude uninvited persons, subject to the reservation in favour of Aboriginal persons. That right would run in tandem with the right in the native title holders to control access: s 44H of the NT Act. Once the lease came to an end, the Aboriginal native title holders would have whatever rights survived to control access to the claim area. Their right would have been extinguished to the extent that it was exclusive for the reason already given, and to the extent that it might otherwise have been exercisable in relation to the previous pastoral lessee and the lessee’s authorised entrants. But it does not follow, in my view, that the right of a definable group of persons under the lease to access the claim area is inconsistent with (and so extinguishes) the non-exclusive native title right to control access to the claim area in respect of persons outside that definable group of persons. Examples may be given of persons seeking to enter the land to film a sacred site, to set up a fishing camp at a waterhole where camping or taking fish was prohibited or regulated by the native title holders’ laws and customs, or to enter the land and commercially exploit a particular bush food resource. Section 223(4) of the NT Act recognises the existence of reserved rights which are not native title rights and interests. Sections 23D and 23H (relevant by virtue of the Validation Act, s 11) provide that such rights are not affected by ss 23C or 23G of the NT Act. However, those provisions do not purport to affect the construction of the reservation in the pastoral lease, or the scope of other subsisting native title rights and interests.

272 It is noteworthy that the reservations in leases granted under the Crown Lands Ordinances refer generally to ‘Aboriginal inhabitants’. I accept that the reservation as expressed in that term was intended to preserve certain existing rights of Aboriginal people in particular lands, namely those people who held a traditional right to be present on the land. That is consistent with other language in the reservation such as: ‘as they have heretofore been accustomed to make and erect’ and ‘in such manner as they would have been entitled to if this demise had not been made’. I do not think the reservations were intended to extend the range of Aboriginal persons who could exercise rights over the leased area beyond those who, according to traditional laws and traditional customs, were entitled to do so. In my view Aboriginal people, other than those who constitute the claim group, had under native title laws and customs no right of entry to the claim area, and could be excluded from it, except upon permission being sought in an appropriate way from one or other of the members of the claim group. I think it is consistent with the reservation that the native title holders, consistently with their traditional practices, would continue to control entry to their country by other Aboriginal people to the extent that right was not otherwise inconsistent with rights under the pastoral leases.

273 It is difficult to discern how s 23G operates in the circumstances. In respect of the reservations in pastoral leases by virtue of the pastoral leases (previous non-exclusive possession acts), nothing in s 23G affects the reservation for the rights and interests: s 23H. Section 23G can apply, therefore, only in respect of rights and interests which were not the subject of reservations. Section 23G(1)(a) does not appear to relate to the two particular rights and issues. It operates where the grant of the pastoral lease involves the grant of rights and interests that are not inconsistent with native title rights and interests. To the extent of inconsistency, the native title rights and interests are extinguished. Where there is no inconsistency, the doing of activity to give effect to the rights and interests prevails over the native title rights and interests, but does not extinguish them. In respect of access, there would be no need for s 23G(1)(a) to operate because the right of access granted under the pastoral lease is an inconsistent right. In respect of decisions about the land, it is possible that a decision under a lease to engage in certain lawful activity might affect an existing right of the native title claimants to make a decision with respect to the land, and in that event the leaseholders’ activity prevails over the native title rights and interests but does not extinguish them.

274 I have reached the view that the native title rights to control access to the claim area and to make decisions about its use are not so inconsistent with rights under the pastoral leases as to lead to their total extinguishment. In my judgment, the right to make such decisions is extinguished only to the extent that it is inconsistent with the rights of a pastoral lessee to make decisions concerning those matters. In Ward in the Full Court at 407, [343] the majority said:

‘The grant of co-existing rights is to be present on the land however it had the inevitable effect that native title which hitherto consisted of exclusive rights to possess, occupy, use and enjoy the land ceased to be exclusive, and the native title right to make decisions about the land was abrogated to the extent that such a right conflicted with the right of the pastoral lessee to make decisions about the use of the land for pastoral purposes, including to make improvements required or envisaged by the pastoral leases, and to comply with covenants in the pastoral leases. The rights reserved to Aboriginal people were confined to rights of access for a specified purpose. … there have been no limitations in the pastoral leases which had the potential for total extinguishment in respect of enclosed or improved areas.’

275 Their Honours earlier said at 400, [316]:

‘… insofar as the native title included rights to make decisions regarding the use and enjoyment of the land and access to the land, that exclusivity was destroyed. Any right to make decisions about the use and enjoyment of the land was also destroyed to the extent that it was inconsistent with the grant to a pastoral lessee of the right to make decisions about the use of the land for pastoral purposes. There could be no native title right to control access by the pastoral lessee, and those to whom the pastoral lessee granted permission to enter. In relation to people entering upon the land for one of the reserved purposes, actual entry would constitute a use inconsistent with the original native title, and to that extent native title would be regulated, though not necessarily extinguished. Whether extinguishment occurred would depend on the nature and degree of use undertaken pursuant to the right of entry.’

276 The passage in the majority judgment in Ward in the High Court at 134, [468] quoted at [263] above appears to be based on an earlier passage at 121, [417] as follows:

‘It is apparent, for the reasons set out above, that the reservations in favour of Aboriginal people did not define or confine the rights that native title holders could exercise in the manner suggested by the majority of the Full Court. However, the grants of the respective pastoral leases were inconsistent with the continued existence of the native title right to control access to and make decisions about the land. Those rights were inconsistent with the right of the pastoral lessee to use the land for pastoral purposes. The respective pastoral leases were not necessarily inconsistent with the continued existence of all native title rights and interests. … the pastoral leases … did not confer upon the lessee the right to exclude native title holders from the land.’

It is significant that the Full Court in the passage immediately quoted above did not qualify its comment that the native title rights were inconsistent with the right of the pastoral lessee to use the land for pastoral purposes by the addition of the words ‘by others’.

277 The rights of pastoral lessees included making decisions about the use of the land relating to the right to depasture stock and to exploit the pastures on the land, to make and maintain improvements necessary for the purposes of the lease, to exclude some others from the land, and to use the waters on the land. The pastoralists’ rights were also limited by other covenants and conditions for reservations in the lease. Such rights were, in no sense, absolute. The native title right holders have a right to make decisions about the use and enjoyment of the land for purposes that fall within the reservation, such reserved rights being rights held back from the grant. A more general right to make decisions about the use and enjoyment of the land, subject to the rights of pastoral lessees and to other persons who may use the land under statutory or other entitlements, is not of itself inconsistent with the rights of a lessee to make decisions about the land for pastoral purposes. Examples may be given, such as decisions that a type of bush food should not be exploited in certain areas at particular times of the year, or fishing area restrictions, or the location and timing of ceremonies and the like. They might also include restrictions on members of the public as to where they might camp, if at all, in relation to significant sites.

278 That conclusion leads to the need to determine the significance of CLP 1117. It was granted in perpetuity to the Corporation for the purpose of carrying out the functions of the Commission (now the Parks and Wildlife Commission) in accordance with the CommissionAct and the TPWC Act. The Northern Territory contends that the grant of the lease to the Corporation enlivened the legislative regime for care, control and management of the claim area by the Commission: s 39(6) of the Commission Act. The powers and functions of both the Corporation and the Commission in respect of the claim area and its control and management are subject to s 122 of the TPWC Act. Section 122 provides that Aboriginal people who have traditionally used the claim area can continue to do so in accordance with their traditions for hunting, food gathering (other than for purposes of sale) and for ceremonial and religious purposes.

279 The Northern Territory therefore submits that s 122 does not support, and cannot support, the contention that all native title rights and interests claimed could co-exist with the performance of the functions of the Corporation and of the Commission. In particular, it contends that it cannot support the conclusion that native title holders retain any rights to make decisions about the use and enjoyment by others of the land and to control access of others. The Northern Territory refers to the fact that rights under s 122 of the TPWC Act are subject to regulations made for the purposes of preserving wildlife in any area and of expressly affecting the traditional use of the area by Aboriginals. The Northern Territory could, it contends, by regulation under that Act, prevent Aboriginal use of the land. If there were any such regulatory intervention, as being future extinguishment, it would be necessary to follow the procedures of the NT Act. The applicants do not accept those contentions.

280 It is common ground that CLP 1117 is not a previous exclusive possession act. Nor is it a previous non-exclusive possession act covered by Div 2B of Pt 2 of the NT Act. That is simply because it is not an agricultural or pastoral lease, and does not fall within the definition of previous non-exclusive possession act in s 23F of the NT Act.

281 In the event that CLP 1117 has that extinguishing effect, it would be necessary to determine whether it was in contravention of the RD Act. The applicants contend that it would contravene that Act. The Northern Territory disagrees. It submits that CLP 1117 is the grant of a lease under a law of general application, namely the Crown Lands Act (NT), which on its face is non-discriminatory. It does not appear to involve a distinction, exclusion or preference based on race. It is also said that it does not have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of any fundamental freedom in the political, economic, social, cultural or other field of public life: s 9 RD Act. Its purpose is to establish an area for conservation purposes. Its effect is to allow the claim area to be used by members of the public (including Aboriginal people) as a national park with the additional particular rights reserved to Aboriginal people under s 122 of the TPWC Act. Hence, the Northern Territory contends, there is no basis for a finding that any extinguishment of a limited, non-exclusive right to make decisions about use and enjoyment of the land or to control access to the claim area is discriminatory in any relevant sense, so as to invalidate the grant of CLP 1117 by reason of the RD Act.

282 If CLP 1117 does contravene the RD Act, it is necessary to determine whether the NT Act, in conjunction with the Validation Act, has the effect of validating its illegality. CLP 1117 is neither a category A past act nor a category B past act, as defined in ss 229 and 230 of the NT Act because it is the grant of a lease to a statutory authority. The Corporation is a statutory authority as defined in s 253 of the NT Act. By use of the exclusionary definition of ‘category D past act’ in s 232 of the NT Act, CLP 1117 is a category D past act. Its effect is as described in s 15(1)(d), namely that the ‘non-extinguishment principle applies to the act’. Thus, as the Northern Territory puts it, any native title rights to make decisions about the use and enjoyment of the principal claim area, or to control access to it, which were not previously extinguished by the grant of pastoral leases will continue to exist but will have no effect for the duration of the lease granted to the Corporation (in perpetuity). See s 238 of the NT Act. The native title is not extinguished, but to the extent of the inconsistency its continued existence, enjoyment or exercise has no effect in relation to the Act to the extent of the inconsistency. The parties are at issue, if CLP 1117 is relevant in the way contended for, as to whether CLP 1117 produces inconsistency in respect of the two rights of making decisions about the claim area and of controlling access to it to the extent that they are extinguished.

283 CLP 1117 was granted to the Corporation. Its function is to acquire, hold and dispose of real property in accordance with the Act: s 39(1) of the Commission Act. Although it is not an authority or instrumentality of the Crown, and is not subject to direction or control of the Minister of the Crown: s 29 of the Commission Act, that does not prevent it being a statutory authority for the purposes of the NT Act. CLP 1117 identified its purpose as ‘Conservation Land Corporation purposes’. Section 39(6) of the Commission Act provides that the Commission has the care, control and management of all land acquired or held by the Corporation. In the exercise of its powers, the Commission is subject to the TPWC Act, including s 122 referred to below.

284 The Commission was established by s 9 of the Commission Act. It is subject to the direction of the Minister. At the time CLP 1117 was granted, its functions as set out in s 19 of the Commission Act (subsequently substituted in 1995) were relevantly to promote the conservation and protection of the natural environment of the Territory, including by the managing and establishment of parks and reserves and sanctuaries under the TPWC Act. The TPWC Act then picks up those functions by making provision for the establishment of parks and reserves for the protection and conservation of wildlife.

285 The principal claim area is not a park or reserve. There has been no declaration to that effect under s 12 of the TPWC Act. The land has not otherwise been reserved for the purposes of a park or reserve. Section 122 of the TPWC Act provided for the traditional use of land and waters by Aboriginals:

‘(1) Subject to subs (2), nothing in this Act prevents Aboriginals who have traditionally used an area of land or water from continuing to use the area of land or water for hunting, for food gathering (otherwise than for the purpose of sale) and for ceremonial and religious purposes.’

286 The Northern Territory accepts that CLP 1117 has the same effect as the lease to the Corporation considered by the High Court in Ward. The High Court decided that lease conferred exclusive possession upon the Corporation, but was invalidated by the RD Act to the extent that it affected native title. The majority judgment at 125, [439] said:

‘… there was a conferral of exclusive possession with the consequence that so much of native title rights and interests as had survived the loss of the right to be asked permission to use or to have access to the land, consequent upon the preceding pastoral leases, was, subject to the operation of the RDA, extinguished.’

287 As noted, it is accepted that the Corporation is a statutory authority of the Crown as defined in s 253 of the NT Act (see the majority judgment in Ward at 126-127, [444] – [447]). Hence, CLP 1117 is a category D past act, and is not a previous exclusive possession act: see s 23B(9A) of the NT Act and the s 8 of the Validation Act. Although the purpose of the grant of CLP 1117 is more laconically expressed than in the Crown Lease Perpetual considered in Ward, I consider that the decision of the High Court in Ward applies directly to the status and effect of CLP 1117. It conferred a right of exclusive possession, subject to the reservation recognised by s 122 of the TPWC Act. Consequently, it had the further effect of extinguishing the surviving non-exclusive native title rights to control access to the claim area and to make decisions about it. For the reasons explained by the majority judgment in Ward, s 10(1) of the RD Act then invalidated the grant of CLP 1117. Then, because the Corporation is a statutory authority as defined in s 253 of the NT Act, the grant of CLP 1117 is a category D past act within the meaning of s 232 of the NT Act. By reason of s 8 of the Validation Act, the non-extinguishment principle applies, as explained in s 238 of the NT Act (and adopted by s 3(2) of the Validation Act). The High Court then commented at 127 – 128, [448]:

‘The findings of fact and the terms of the determination made by the Full Court are not such as to enable one here to determine whether, in respect of the remaining native title rights and interests after the extinguishment effected by the pastoral leases, the respective grants were wholly or partly inconsistent with the continued existence, enjoyment and exercise of the native title rights and interests in question. If wholly inconsistent, the effect of s 238(3) is that the native title continues to exist in its entirety but the rights and interests have no effect in relation to the grants. If there is partial inconsistency, there is the continued existence of native title in its entirety but, by force of s 238(4), the rights and interests have no effect in relation to the grants “to the extent of the inconsistency”. These are matters upon which no conclusion can be reached by this court.’

288 It is only the native title rights to control access to the claim area, and to make decisions about the land, which are said to have been affected by CLP 1117. Those two rights are not expressly within the reservation recognised by s 122 of the TPWC Act. In respect of the other native title rights and interests which I have found to exist, CLP 1117 has no extinguishing effect beyond that already effected by the grant of pastoral leases.

289 In my judgment, consistently with the decision of the High Court in Ward about a similar Crown Lease Perpetual, CLP 1117 is wholly inconsistent with the continued existence of a non-exclusive native title right to control access of persons to the principal claim area. I also consider it is wholly inconsistent with the continued existence of a continuing non-exclusive native title right to make decisions about the principal claim area. By reason of the grant of CLP 1117, the principal claim area comes under the care, control and management of the Commission. Responsibility for the principal claim area is a function which it has by reason of s 39(6) of the Commission Act. Section 20(1) of the Commission Act gives it power to do all things necessary or convenient to be done for or in connection with the performance of its functions. Those powers include occupying, using, managing and controlling the claim area. I draw that conclusion because s 20(2)(e) of the Commission Act explains, but does not limit, the generality of s 20(1) and explicitly states that those powers exist in respect of any land leased by the Corporation ‘continued in existence by the Northern Territory Land Corporation Act, and made available to the Commission’. That Act refers to other circumstances in which a statutory corporation (previously the Northern Territory Development Land Corporation) may come to hold land in effect for the Commission. The expression of those powers indicates clearly the scope of s 20(1) of the Commission Act. The powers in s 20(1) of the Commission Act to use and manage and control the principal claim area are so broad as to be inconsistent with the native title rights to which I have referred.

290 The applicants did not contend that the repeal and replacement of s 19 of the Commission Act (by s 22 of the Conservation Commission Amendment Act 1995 (NT)) was of any significance. Their submissions focused upon the terms of s 19 as substituted in 1995.

291 In my view, the fact that there has been no adoption of a plan of management for the proposed park under s 18 of the TPWC Act means that there has been no further extinguishment of native title. The Draft Management Plan does not have that effect: see the majority judgment in Ward at 128 – 129, [452] – [456]. The statutory management regime under the TPWC Act has not yet been engaged.

292 In my judgment, in the circumstances, the applicants’ native title rights and interests have not been further extinguished by CLP 1117 beyond the extinguishment effected by previous pastoral leases. Section 44H of the NT Act will of course apply to CLP 1117, so the exercise of rights in accordance with it will prevail over the applicants’ native title rights and interests. However, the non-extinguishment principle applies to the two specified native title rights to the extent determined immediately above.

293 The remaining significant area of contention in relation to the principal claim area relates to public works. The Northern Territory contends that certain roads established on the principal claim area and certain infrastructure are public works which are previous exclusive possession acts, and are therefore excluded from any grant. See s 23A of the NT Act.

294 Section 23B(7) provides that an act is a previous exclusion possession act if it is valid, and if it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996. The expression ‘public work’ is relevantly defined in s 253 of the NT Act as meaning any of the following things constructed or established by or on behalf of the Crown or a local government body or other statutory body of the Crown: a building or other structure that is a fixture; a road, railway or bridge; and a well or bore and any other major earthworks. ‘Major earthworks’ is also defined in s 253 of the NT Act.

295 There is an ‘adjacent land’ addendum in s 251D of the NT Act so that the public work includes land or waters on which it is constructed and includes land or waters adjacent to the land containing the public work, the use of which was necessary for, or incidental to, the construction, establishment or operation of the public work.

296 Section 19 of the NT Act permits the Northern Territory to legislate to the same effect as ss 15 and 16 of the NT Act. That is, to provide that past acts attributable to the Northern Territory are valid and are taken always to have been valid. Sections 4 and 4A of the Validation Act have that effect. Section 9J of the Validation Act confirms that a previous exclusive possession act under s 23B(7) of the NT Act extinguishes native title in relation to the land and waters on which the public work concerned (on completion of its construction or establishment) was or is situated and that extinguishment of the native title rights and interests is to be taken to have happened when the construction or establishment of the public work began.

297 It was then submitted by the Northern Territory that a previous exclusive possession act which consists of the construction or establishment of a public work which was otherwise invalid because of native title, has been validated as either a category A past act as defined in s 229(4) of the NT Act, or a category A intermediate period act as defined in s 232B(7) of the NT Act.

298 The particular public works to which the Northern Territory refers are as follows:

(1) the 4 WD access road to Irminga Waterhole and Whistle Duck Creek, day use and camping area;

(2) the access road to Old Police Station Waterhole (North Loop) 2 WD;

(3) the Frew River Loop Road (South Loop) 4 WD;

(4) the Old Police Station Waterhole camping area and Frew River campsite: 70 timber bollards, 13 platform tables, 13 steel plate wood barbeques, 1 feed box, 1 panel shelter, 1 interpretive panel, and 2 pit toilets; and

(5) the Irminga Waterhole and Whistle Duck Creek day use and camping area: 40 timber bollards, 16 platform tables, 17 steel plate wood barbeques, 4 lay back timber picnic units, 8 timber wheel stops, 1 feed box, 3 pit toilets, 1 octagonal shade/interpretive shelter and 3 interpretive panels.

299 If those works are valid public works, s 251D of the NT Act has the effect that the areas of land upon which those roads and infrastructure are constructed or established or situated are taken to include adjacent land the use of which is or was necessary for, or incidental to their construction, establishment or operation. In the case of the roads, the necessary area is said to include a corridor, the physical extent of which is dictated by what is necessary to service and maintain them. In the case of the infrastructure, the necessary area is said to include the hard stands upon which the works are located.

300 In my judgment, the works in question were valid notwithstanding that there has been no declaration of the proposed park under s 12(1) of the TPWC Act. CLP 1117 does not exist in a vacuum as if it did not entitle the Commission to exercise any rights under it. The lease was for the purpose of a proposed national park, and for the establishment of a proposed tourist facility and camping ground at Whistle Duck Creek on Portion 4387. The land may not be used for any other purpose. Under the relevant statutory regime, the proposal then involved the process under the TPWC Act by which the area would be declared as a national park and the Commission would then fulfil its functions and responsibilities under the TPWC Act. But it does not follow that the Commission was powerless to construct public works on the land the subject of CLP 1117 before the declaration of the park. Mr Bertram’s evidence indicates that the normal governmental processes of securing funding and clearance from the Aboriginal Areas Protection Authority were undertaken. The normal tender processes were followed. The Corporation’s functions in respect of CLP 1117 are very specific, and limited. It could not use the land other than for the purpose of the proposed national park, to be under the direct control of the Commission. Section 39(6) of the Commission Act, as noted, gave the care, control and management of the principal claim area, being the land in CLP 1117, to the Commission upon the grant of the lease to the Corporation. I do not consider that the Commission’s actions in their procuring the putative public works were not unauthorised under s 19 of the Commission Act. Whilst there may be some issue as to the extent to which the claimed public works may be entitled to be enjoyed by the persons for whose benefit they were intended in the absence of a declaration of the proposed national park, in my view the works were not invalidly carried out.

301 In my view, the access road to the Old Police Station Waterhole (North Loop) 2WD at Athethew is a ‘road’ within the meaning of that word as used in the definition of ‘public work’ in s 253 of the NT Act. It was constructed to be used for motor vehicles to access that location from the Davenport/Murchison Loop Road. Its construction was let to a private contractor. The work involved significant earthworks and re-alignment from the then existing access track. For similar reasons, I consider the access road to Whistle Duck Creek and Irminga Waterhole was also a road.

302 The applicants contended more forcefully that the Frew River Loop Road (South Loop) road did not fall within the description of a road. It runs south from Old Police Station Waterhole to rejoin the Davenport/Murchison Loop Road. It is notionally the continuation of the Old Police Station Waterhole (North Loop) Road. The road was approved in the same way as the North Loop Road to Old Police Station Waterhole, and its construction was tendered to the same contractor. Mr Bertram described it as following an old track, and that it is ‘basically washed out’ to the extent that ‘it’s just about a river bed’. He said it did not require re-alignment from the pre-existing old track, but later recalled that it did involve some re-alignment as sections of the course of the old track were environmentally unacceptable. I do not consider that it is a road within the meaning of s 253 of the NT Act. It is no more than a very rough 4WD track, apparently following natural contours. It was intended to upgrade vehicular access from Old Police Station Waterhole south to the Davenport/Murchison Loop Road. But the evidence shows that it does not have the character which I consider s 253 contemplates. The definition in s 253 contemplates, in my view, some permanent substantial and clearly identifiable physical features. The evidence does not persuade me that this track has any of those characteristics. I should note that the Court had the benefit of a ‘view’, by traversing part of the track to locations where evidence was taken. That has enabled me to understand Mr Bertram’s evidence, but I have not of course regarded my observations at the time themselves as evidence.

303 The applicants contend that neither the Old Police Station Waterhole camping area and the Frew River campsite, nor the ‘Irminga’ (Irrmeng) Waterhole and Whistle Duck Creek day use and camping areas are ‘public works’ as defined.

304 The definition ‘public work’ relevantly includes in subcl (a)(i) a building or other structure that is a fixture that is constructed or established by or on behalf of the Crown or a statutory authority of the Crown. A fixture requires a degree of annexation to the land, and an intention that it be permanent: see generally Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712 – 713. The present issue does not depend upon any subtleties in the meaning of ‘fixture’.

305 At both sites, the platform tables are free standing, and the platform tables and barbeques also simply sit on top of a prefabricated concrete slab which sits on the ground surface. The ground surface is ‘hard stand’, that is rolled and compacted by machinery. The evidence does not enable me to determine whether the timber wheel stops, the timber bollards, or the fee box are so affixed to the land as to be fixtures. Nor am I persuaded that the pit toilets are fixtures. However, at Whistle Duck Creek the interpretive shelter is substantially embedded in the land and is apparently intended to have the necessary degree of permanence. The evidence about it is slight, but there were photographs of its features which I could better understand with the benefit of having seen them. The evidence about the interpretive panels at Whistle Duck Creek and at Old Police Station Waterhole camping areas does not enable me to make such a finding about them.

306 In my view, the interpretive shelter at Whistle Duck Creek day use and camping area is a fixture, and so is a ‘public work’. I do not consider the other features there, nor the Old Police Station Waterhole camping area and Frew River campsite to be fixtures.

307 In reaching those conclusions, I have not given to the meaning of ‘fixture’ the refined meaning for which the applicants contended: ‘substantial buildings or structures, the construction of which would be inconsistent with the continued exercise and enjoyment of native title’. In my view, there is nothing in the NT Act to indicate that the word ‘fixture’ is used other than in its normal common law sense. There is no occasion therefore to advert to the Second Reading Speech on the Native Title Amendment Bill 1997 (Cth) to which the applicants referred in argument. Nor do I consider that the way in which the NT Act provides for validating future acts under Pt 2 Div 3, in particular as to what may fall within the scope of facilities for services to the public under s 24KA(2), should lead to the conclusion that the word ‘fixture’ in s 232(1) should have some refined meaning.

308 The contracts for the two roads which I have found to be public works were let, and construction commenced, prior to 23 December 1996. Consequently, they are intermediate period acts under s 22F and s 232B(7) of the NT Act and s 4A of the Validation Act. They are therefore validated and are previous exclusive possession acts that extinguish native title in relation to the land and waters in the claim area which they occupy, and by reason of s 251D, the adjacent land and waters necessary for, or incidental to, their construction and the operation of the work. That includes a corridor on either side of them as necessary to service and maintain them. The evidence does not enable me to determine precisely that corridor area, but the applicants rightly point out that its width may vary according to the terrain. They further rightly point out that further upgrading of those roads, for example by widening or re-aligning them, may constitute further new work which will have to run the gamut of the ‘future acts’ provisions in Div 3 of Pt 2 of the NT Act.

309 The Whistle Duck Creek interpretive shelter was contracted for construction on 23 June 1997. Construction was completed during that year. A Clearance Certificate for the proposed construction was secured on 28 July 1994. The Northern Territory contends that the act which is the relevant public work (the construction of the interpretive shelter) commenced prior to 23 December 1996 because the hard stand area upon which the interpretive centre exists was laid when the road itself was constructed. That occurred as a matter of convenience, because the equipment used for the hard stand is the same as that used for the road itself. The process involves tip trucks depositing material, grading, then mixing with water and rolling for compaction. I accept that work happened by early 1996. It was done in anticipation of the construction of the interpretive shelter, and the other works at the Whistle Duck Creek day use and camping ground. The issue is whether that work in early 1996 was the commencement of the construction of the interpretive shelter: s 232B(7). In my view, it was not. The work was undertaken in contemplation of the construction, inter alia, of the interpretive shelter. But it was not itself the start of the construction of the interpretive shelter. It was a step prior to the construction of the public work. Accordingly, in my judgment, the construction of the interpretive shelter at Whistle Duck Creek is not an intermediate period act which is validated and which extinguishes native title in the way in which the Northern Territory contends.

310 The applicants’ however acknowledge that its construction is a future act which was to give effect to, or was because of, the Agreement of 26 February 1993 for Partial Surrender by the Saints of their pastoral lease. They accept that s 24ID(1)(a) then validates that work, and the non-extinguishment principle applies, but as it is not the conferral of a right of exclusive possession, it does not totally extinguish native title: s 24ID(1)(b).

311 It is common ground that s 47B may apply to Hatches Creek. Section 47B(1)(c) requires that one or more of the native title claim groups occupied Hatches Creek at the time of the application. There is no direct evidence on that topic. The applicants ask me to infer such occupation from a course of conduct over time.

312 As noted earlier, the presence of Aboriginal persons on the claim area, and their occupation of it, would be influenced by seasonal factors such as the availability of resources, by ceremonial obligations, and by the presence of Non-Aboriginal persons. Hatches Creek has no physical features or significance which would suggest it was continually occupied, in the sense of having permanent residents at the time of the application. It is close to the road that connects the Imangker Aboriginal Community on the Murray Downs Station and the Aboriginal community near the homestead in Epenarra Station, as well as Alepeyewenh (Black Tank). There is a small resident community at Alepeyewenh, which I accept engages in hunting and gathering in the surrounding areas.

313 In Hayes at 144 [162], Olney J described occupation for the purposes of s 47B as being use of traditional country in a way that:

‘… is neither random nor co-incidental but in accordance with the way of life, habits, customs and usages of the group …’

In my view, the evidence leads to the conclusion by inference that members of the claim group occupied Hatches Creek in that sense at the time of the application. They resided nearby, and in the traditional way hunted and traversed the land around Alepeyewenh. I infer that land included Hatches Creek. I do not need to determine whether the passage of Aboriginal persons along roads or tracks near Hatches Creek of itself would amount to occupation of Hatches Creek. The absence of evidence that in such travels Hatches Creek had any significance to them, together with the fact that it was not itself on the travel route, leads me to the tentative view that such evidence of itself would have attracted the application of s 47B(1)(c).

314 For those reasons, I conclude that s 47B does apply to Hatches Creek, and the rights of the claim group which I have found to exist are, in relation to Hatches Creek, exclusive.

conclusions

315 For the reasons given, I propose to determine that native title exists in relation to the determination area which comprises the land and waters covered by Northern Territory Portions 4386 and 4387 and Hatches Creek. The determination area does not include areas subject to previous exclusive possession acts, namely the following public works as defined in s 253 of the NT Act, including the adjacent land and waters as described in s 251D of the NT Act, :

(1) the two wheel drive access road to the Old Police Station Waterhole (Athethew) (North Loop);

(2) the four wheel drive access road to the Irminga (Irrmeng) Waterhole and Whistle Duck Creek day use camping area;

(3) the land and waters adjacent to the two roads referred to in (1) and (2) hereof used for the construction, establishment or operation of the two roads.

Nor does it include the roads excluded from NT Portions 4386 and 4387 as delineated on plan number S93/20A dated 30 August 1993. The claim area is defined by reference to Portions 4386 and 4387, and those portions do not include certain roads which might otherwise be seen as within the broad geographical boundaries of the claim area.

316 I am satisfied that the persons who hold the communal or group rights comprising the native title as common law holders are the Aboriginal persons who include:

(a) members of one or more of the seven landholding groups (Arrawatyen, Antarrengeny, Akweranty/Anwerret, Lyentyawal-Ileparranem, Tyaw, Warwepenty and Kelantyerrang) by virtue of descent through his or her father’s father, father’s mother, mothers’ father and mother’s mother; or

317 In my judgment, those persons also include the spouses of persons referred to in (a) and (b) who are recognised by the persons referred to in (a), according to the traditional laws and traditional customs of the communal group which I have found to exist. The spouses included in the communal group have the rights and interests determined by the traditional laws and customs of the group. I am unable to discern from the evidence an additional category of persons who come within the communal group as members of neighbouring or closely related landholding groups who are recognised as having native title rights and interests in the claim area. The evidence discloses that there may be persons who are regarded as within the communal group who do not clearly fall within (a) or (b). In my view, those few persons are more likely to have been so recognised because they fall within (b) rather than as a separate element of the communal group as the applicants put forward in their proposed determination.

318 I do not propose to include in the determination a statement as suggested by the applicants as set out in [66] above, put forward as a statement of the rights and interests ‘before they are translated into native title rights and interests recognised by the common law’. The findings made in the reasons for judgment relate to the traditional laws and customs of the claim group. In my view, to include such a statement in the determination, has several potential detriments. Firstly, it is not a course which is clearly contemplated by s 225 of the NT Act. Secondly, as the majority judgment in Ward indicates, the focus of the application and the determination should be by reference to the NT Act, in particular s 223(1). Thirdly, such a statement has the prospect of failing accurately or comprehensively to reflect what it purports to achieve (the evidence and submissions properly focused on the matters raised by the NT Act rather than upon wider issues). Fourthly, such a statement has the potential to be used to inform the nature of the determination of the native title rights and interests which I have found to exist when their nature and extent should be simply that which is the subject of the determination.

319 In the determination of the native title rights and interests recognised by the common law, I do not think it is necessary or appropriate to include an expression such as ‘rights to possess, occupy, use and enjoy’ the land and waters in the claim area. In my view, the reasons for decision themselves explain the integrated nature of the relationship of the claim group with the claim area. The determination should be confined to expressing those rights and interests in the claim area which the claim group is entitled to enjoy by reference to the activities that may be conducted as of right on or in relation to the claim area: see the majority judgment in Ward at 30, [52].

320 It is not necessary to refer in these conclusions to the rights and interests as the applicants claimed and which I have found to exist, where there is no concern by the Northern Territory as to whether or how that right or interest should be expressed, or where the Northern Territory suggested alterations to the expression of a claimed right or interest which is accepted by the applicants, or has been altered by the applicants to accommodate concerns of the Northern Territory. See the discussion in [169] – [208] above.

321 Consequently, it is not necessary to address the expression in [67] of the rights and interests claimed in pars (a), (b), (c), (g) and (i) thereof. Nor is it necessary to further address the principal pars numbered 5, 6, 7 and 8 or parts of pars 9 and 10 and Sch 1 of the proposed determination discussed at [187] – [208] above.

322 In my view, it is appropriate to include the expression of the right set out in par (d). I do not regard the use of the word ‘protect’ as inappropriate. It contemplates conduct in relation to places and areas of importance which may fall well short of controlling access to those places in a way which is inconsistent with previously granted rights, and the exercise of the right to be recognised is subject to the prevailing activities under the exercise of other rights: s 44H of the NT Act. It is a right which I consider exists independently of the Northern Territory Aboriginal Sacred Sites Act (NT).

323 I also propose to include in the determination the rights sought in pars (e) and (f). I have found, however, that each of those rights is inconsistent with the rights of the Commission following the grant to the Corporation of CLP 1117. The result is that, in respect of those rights, the non-extinguishment principle expressed in s 238 of the NT Act applies. The two rights continue to exist, but they have no effect in relation to the grant of CLP 1117 and its consequences, including in relation to the Commission. I propose to include a note in the declaration to that effect.

324 I also consider that the right claimed in (h) is one which has a connection with the claim area, so as to come within the definition in s 223(1) of the NT Act. The critical question dictated by s 223(1)(b) is whether the claim group, by the traditional laws and customs which give rise to the particular native title rights and interests, has a connection with the claim area. The expression of the claimed right is more refined, or more specifically directed to meeting the requirement of s 223(1)(b), than those considered by the High Court in Ward at 31 – 32, [58] – [60] or by O’Loughlin J in De Rose at [51]. The evidence discloses that certain of the spiritual beliefs or practices of the claim group are ‘site specific’, and the activities conducted pursuant to them relate to particular locations in the claim area. As expressed, the proposed right firstly relates only to the spiritual beliefs which concern particular locations in the claim area. And secondly, it seeks to ‘control’ the disclosure of those beliefs and the material objects and other ‘paraphernalia’ associated with them. It is not directed to controlling the use of some intellectual property, but to controlling its acquisition. I am confident there is a right to control the acquisition of such information in accordance with traditional laws and customs of the claim group. By the ‘site specific’ nature of those particular spiritual beliefs, in my view the claim group has a connection with the claim area. As expressed, I do not consider the right is ‘something approaching an incorporeal right akin to a new species of intellectual property’ (cf the majority in Ward at 31, [59]).

325 The right claimed in (j) is, in my judgment, for the same reasons a native title right possessed under the traditional laws and customs of the claim group by reason of which the claim group has a connection with the claim area. Olney J in Hayes at 148 made a similar determination.

326 Two of the Northern Territory’s proposed changes to par 9(a)(iv) of the proposed determination are not contentious. The other differences are not substantial. The Northern Territory’s proposal reflects the expression used by O’Loughlin J in De Rose. In my view, the use of that expression is helpful and I shall adopt it, except for the fourth of those matters which I shall limit as the applicants suggest.

327 As to par 10 of the proposed determination (see [199] – [203] above), I think the Northern Territory’s proposed par 10(b) is appropriate and I shall adopt it. The views of the majority in Ward in the Full Court at 399, [312] were not intended to diminish the operation of s 44H. They are nevertheless, views which are both well-founded and which one would expect to reflect rational behaviour. I do not, however, consider that the determination should contain the direction proposed by the applicants in par 10(d). The interaction between s 44H and the concepts discussed by their Honours is better left to be addressed as circumstances arise. For the reasons already given at [203], I will include the proposed par 10(e) in the determination. I do not see the need to further qualify the operation of par 10(f).

328 Accordingly, the determination which I propose to make is as follows: