FEDERAL COURT OF AUSTRALIA

Margarula v Northern Territory of Australia [2016] FCA 1018

ORDERS

THE COURT DETERMINES THAT:

1.    The native title rights of the Mirarr People over the area the subject of this application, broadly comprising the area of the Jabiru Township –

(a)    have been extinguished to the extent that they are over areas which are the subject of subleases granted by the Jabiru Town Development Authority to non-Crown entities (as identified in the reasons for judgment);

(b)    have been suppressed by reason of s 238 of the Native Title Act 1993 (Cth) to the extent that they are over areas which are the subject of subleases granted by the Jabiru Town Development Authority to Crown entities (as identified in the reasons for judgment); and

(c)    to the extent that they have been so suppressed have been extinguished by the extensive public works carried on within the claim area by 23 December 1996 save to the extent that the areas over which such suppression exists comprise:

(i)    the underground water line to the Kakadu National Park headquarters;

(ii)    Lot 2321;

(iii)    The Magela Creek sewage pipeline;

(iv)    Lot 2371 save for the area of 7 hectares adjacent to the Manaburduma Jabiru Town Camp.

2.    In relation to the area fixed as adjacent “land” in relation to Jabiru Drive (Lots 968, 1427, 2015, 2025 and 2032), and Arnhem Highway (Lots 2306, 2318 and 2319), the Applicant is given leave to apply within 12 months of the date of these orders to have all or any part of those Lots removed from or reduced within the adjacent area as determined.

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

REASONS FOR JUDGMENT

MANSFIELD J:

THE ISSUE

1    At the time of the arrival of Europeans in Australia, the Mirarr People lived in central northern Australia. Their lands included the claim area of this application: the land that now comprises Jabiru, a township inside Kakadu National Park, and its immediate surrounds (the Jabiru land). According to their traditional laws and customs, the Mirarr People collectively held rights to possess, occupy, use and enjoy the Jabiru land to the exclusion of all others, subject only to those laws and customs. This much has been agreed by the parties to the present proceeding. For present purposes, but for the legislative and executive dealings with the Jabiru land since the settlement of Europeans, it is accepted that the Mirarr People should be recognised under the Native Title Act 1993 (Cth) (NTA) as having held those native title rights and interests over the Jabiru land, and as still holding those native title rights and interests.

2    The present broad question to be decided under the NTA is whether or not any of the executive and legislative acts since European settlement have had the effect of extinguishing the native title rights and interest of the Mirarr People over the Jabiru land, and if so the extent of that extinguishment.

BACKGROUND FACTS

3    In 1788, the “First Fleet” landed on the eastern coast of Australia and established the colony of New South Wales. In 1825, the borders of the colony of New South Wales were expanded by Letters Patent issued by the King: Letters Patent, 16 July 1825. The Jabiru land thereby fell within the colony of New South Wales. In 1836, another British colony was established in Australia, the colony of South Australia. In 1863, the boundaries of South Australia and New South Wales were altered so that the Jabiru land then formed part of South Australia: Letters Patent, 6 July 1863.

4    It was not until 30 January 1882, however, that the Jabiru land was for the first time put to any formal use by European colonists. In that year, two pastoral leases over the Jabiru land were granted by the Crown to Charles Brown Fisher, a prominent Melbourne-based pastoralist at that time, under the Northern Territory Land Act 1872 (SA) (1872 Act) and the Northern Territory Land Amendment Act 1876 (SA). The two leases together covered the entirety of the Jabiru land. In 1889, Mr Fisher surrendered the leases.

5    Then in 1892, two new pastoral leases were granted over the same land, pursuant to a new Act, the Northern Territory Crown Lands Act 1890 (SA) (1890 Act). The leases were granted to the bushman and explorer Harry Stockdale. They were cancelled two years later in 1894 for non-payment of rent. In 1895, one larger pastoral lease was granted over the same area, pursuant to the 1890 Act, to James Ebenezer Tonkin. Mr Tonkin's pastoral lease was cancelled only eight years later, in 1903.

6    From 1903 until 1937, no non-indigenous person held any rights over the Jabiru land. During that time, on 1 January 1911, the Jabiru land became part of the Northern Territory of Australia (the Territory), a territory of the newly-formed Commonwealth of Australia: Northern Territory Surrender Act 1907 (SA); Northern Territory Acceptance Act 1910 (Cth). In 1927, the Commonwealth split the Northern Territory into two administrative regions: North Australia and Central Australia: Northern Australia Act 1926 (Cth). The Jabiru land fell within North Australia. In 1931, however, the two regions were abolished and the Jabiru land again simply became part of the newly-recreated Territory.

7    In 1937, a grazing licence was granted over the Jabiru land by the Commonwealth to Edward Sawdy and Daniel Osborn, pursuant to the Crown Lands Ordinance 1931 (NT) (1931 CL Ordinance). In the next nearly 30 years, eight further grazing licences were granted over the Jabiru land to various other persons. None of these nine grazing licences lasted for a term of more than four years. The last one, which was held by Mudginberri Station Ltd (Mudginberri), expired on 30 June 1965.

8    The next day, 1 July 1965, an Occupation (Development) Licence (ODL) was granted over the whole of the Jabiru land to the same company, Mudginberri. The ODL was granted pursuant to s 108 of the 1931 CL Ordinance. The ODL gave Mudginberri the right to occupy the land for the purpose of taking and shooting of buffaloes, and the production of meat and hides from the carcasses of those buffaloes, and for any other purposes approved by the Administrator of the Territory. The ODL was surrendered by Mudginberri less than two years later, on 11 January 1967.

9    For the five subsequent years, no right or interest in the Jabiru land was granted by the Commonwealth to any person. Then in 1972, the Commonwealth declared land including the Jabiru land to be a sanctuary and a protected area under ss 14 and 22 respectively of the Wildlife Conservation and Control Ordinance (NT).

10    To this point, the nature and extent to which legislative or executive action may have impeded the existence and enjoyment of the traditional rights and interests of the Mirarr People over the Jabiru land is clean and uncomplicated.

11    In 1975, the Ranger Uranium Environmental Inquiry (Ranger Inquiry) was established to conduct an inquiry in relation to a proposal for the development of uranium deposits at sites near the Jabiru land (in accordance with s 11 of the Environment Protection (Impact of Proposals) Act 1974 (Cth)). The proposal had been made by the then Australian Atomic Energy Commission and Ranger Uranium Mines Pty Ltd. Pursuant to s 11(2) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA), the Ranger Inquiry was also empowered to make findings for the purposes of the ALRA that groups of Aboriginals are entitled by Aboriginal tradition to the use or occupation of certain areas of land.

12    The Ranger Inquiry produced two reports.

13    On 17 May 1977, the Second Report of the Ranger Inquiry (Ranger Report) was published. The Ranger Report recommended that:

    a major national park be established over a large tract of land including the Jabiru land, with Aboriginal participation in its planning and management;

    a town be constructed within the new national park, and that the land for the proposed town not be granted as Aboriginal land under the ALRA, but become part of the national park;

    the rest of the relevant land including the Jabiru land other than the township be granted to an Aboriginal Land Trust under the ALRA; and

    the land grant to the proposed Aboriginal Land Trust and the establishment of the national park should occur before any substantial construction work is done on the Ranger uranium mine project.

14    On 25 August 1977, the Commonwealth Government announced that it accepted the principal findings and recommendations of the Ranger Report: House of Representatives, Parliamentary Debates, 25 August 1977, 645, 665-667. Amendments to the National Parks and Wildlife Conservation Act 1975 (Cth) (NPWC Act) and the ALRA were subsequently introduced into Parliament on 10 April 1978. Both sets of amendments were passed and commenced on 9 and 23 June 1978 respectively. The NPWC Act amendments, inter alia, clarified that national parks may be declared over an area of Aboriginal land held under lease by the Director of National Parks and Wildlife (the Director). The ALRA amendments, inter alia, enabled areas around the Jabiru land to be granted to an Aboriginal Land Trust and then leased to the Director.

15    During this period, the Commonwealth Government had also determined that the Territory should become a self-governing territory of the Commonwealth. The Northern Territory (Self-Government) Act 1978 (Cth) (SG Act) was passed to achieve this. Parts of the SG Act, including s 70, commenced on 22 June 1978. The remainder of the SG Act, including the substantive provisions formally creating the Territory as a separate body politic, commenced on 1 July 1978. This Act meant that the Territory was established as a "body politic under the Crown by the name of the Northern Territory of Australia": s 5, which would now have its own institutions of self-government that would make its own laws, while still remaining a territory of the Commonwealth.

16    On the day of commencement, 1 July 1978, it was understood that the Territory acquired from the Commonwealth radical title to all the land within its territory. However, pursuant to ss 69 and 70 of the SG Act and a gazettal notice published on 29 June 1978 in accordance with those provisions, the Commonwealth acquired certain lands from the NT on the day the Act came into operation. Those lands included the Jabiru land.

17    Not long after, on 5 April 1979, the Governor-General declared by a proclamation published in the Commonwealth Gazette that an area including the Jabiru land was to be a park, and would be known as 'Kakadu National Park'. That declaration was made pursuant to s 7(2) of the NPWC Act. Upon that declaration being made, the Jabiru land was automatically vested in the Director of National Parks and Wildlife (Director), by force of s 7(7) of the NPWC Act. The Director later had the title to Kakadu National Park registered under the Real Property Act 1886 (NT) on 9 March 1982.

18    On 12 January 1979, the Jabiru Town Development Act (NT) (Jabiru TD Act) was passed. It established a statutory corporation, the Jabiru Town Development Authority (JTD Authority), which would be responsible for developing a town to be known as Jabiru on the Jabiru land: Jabiru TD Act, ss 3, 15(1)(a).

19    A number of licences were then granted by the Director to the JTD Authority between 14 June 1979 and 2 April 1981, pursuant to s 8D(2) of the NPWC Act. The licences permitted the construction of various works, amenities and buildings for the town of Jabiru. Then, on 29 June 1981, the Director granted a 40-year lease to the JTD Authority of the Jabiru land, pursuant to the NPWC Act (Township Lease).

20    In the subsequent years, the JTD Authority has granted various sub-leases to various entities for various purposes related to the development of the Jabiru Township. The earliest such sub-lease commenced on 1 July 1981, and the most recent in 1996. Most of the sub-leases were made to either Crown entities, in particular the Commonwealth and the NT Housing Commission, or to Energy Resources of Australia Ltd (ERA), a uranium mining company and subsidiary of the Rio Tinto group. ERA operates the Ranger uranium mine, which is eight kilometres east of the Jabiru Township. A few other sub-leases have been granted by the JTD Authority to other entities, generally businesses and churches.

21    From 1979 onwards, various works have been constructed in accordance with the various licences and sub-leases that have been granted over the Jabiru land. Many houses have been constructed, along with public amenities such as a fire station, sports and social club, swimming pool and related amenities, shops, and services such as roads, a sewage pump station, a bore, a telephone exchange, and for similar functions. The 2011 Census recorded the population of Jabiru at 1,129, with 630 private dwellings.

THE PRESENT PROCEEDING

22    In 1998, Yvonne Margarula (the Applicant), on behalf of the Mirarr people, filed an application in this Court for a determination of native title rights and interests over an area of land including the Jabiru area. This had become possible under the newly-passed NTA.

23    As noted, the parties agree that, prima facie, the Mirarr people hold native title rights and interests in respect of the Jabiru land within the meaning of s 223 of the NTA. The contested issue, however, is whether those native title rights and interests have been wholly or partially extinguished as a result of the various acts of the Crown since British settlement. Those acts have been briefly summarised above. The effect of those acts on the Mirarr people's native title rights and interests must now be ascertained.

24    Apart from the Applicant, five respondents made oral submissions at the hearing of this matter. They were the Territory and the JTD Authority (collectively, the NT Respondents), the Commonwealth and the Director (collectively, the Commonwealth Respondents), and ERA.

25    It is agreed by the parties that the Mirarr People originally had native title rights to possess, occupy, use and enjoy the Jabiru land to the exclusion of all others (the exclusive native title rights). It is also agreed by the parties that the exclusive native title rights have been extinguished as a result of grants of pastoral leases by the Crown in the nineteenth century.

26    It is also agreed by the parties that if the Mirarr people's native title has not been wholly extinguished, then the Mirarr People’s native title comprises the following rights, subject to the traditional laws and customs that govern their exercise:

(a)    the right to travel over, move about and have access to the Jabiru land;

(b)    the right to hunt and fish on the land and waters of the Jabiru land for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed by and under the traditional laws and customs of the Mirarr people;

(c)    the right to gather and use the natural resources of the Jabiru land such as food, medicinal plants, wild tobacco, timber, stone and resin for personal, domestic, or non-commercial exchange or communal consumption for the purposes allowed by and under the traditional laws and customs of the Mirarr people;

(d)    the right to take and use the natural water on the Jabiru land;

(e)    the right to live, to camp and for that purpose to erect shelters and other structures on the Jabiru land;

(f)    the right to light fires on the Jabiru land for domestic purposes, but not for the clearance of vegetation;

(g)    the right to conduct and participate in the following activities on the claim area:

(i)    cultural activities;

(ii)    cultural practices relating to birth and death, including burial rites;

(iii)    ceremonies;

(iv)    meetings;

(v)    teaching the physical and spiritual attributes of sites and places on the claim area that are of significance under the traditional laws and customs of the Mirarr people;

(h)    the right to maintain and protect sites and places on the Jabiru land that are of significance under traditional laws and customs of the Mirarr people;

(i)    the right to share or exchange subsistence and other traditional resources obtained on or from the Jabiru land for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed by and under traditional laws and customs of the Mirarr people;

(j)    the right to be accompanied onto the Jabiru land by persons who, though not native title holders, are:

(i)    people required by traditional law and custom for the performance of ceremonies or cultural activities on the Jabiru land;

(ii)    people who have rights in relation to the claim area according to the traditional laws and customs acknowledged by the Mirarr people;

(iii)    people required by the Mirarr people to assist in, observe, or record traditional activities on the Jabiru land.

(together, the non-exclusive native title rights)

THE PASTORAL LEASES

27    There is no dispute as to the effect of the various pastoral leases granted over the Jabiru land from 1882 to 1903. The Applicant accepted in a Notice of Voluntary Admissions dated 2 April 2013 that "the grant of each pastoral lease was inconsistent with and extinguished [the exclusive native title rights]" but that "the grant of each pastoral lease was not inconsistent with the continued existence, exercise or enjoyment of [the non-exclusive native title rights]." The Respondents do not challenge the latter proposition.

28    It is instructive to briefly explain how that conclusion has been reached by the parties.

29    Each of the grants is a previous non-exclusive possession act for the purposes of the NTA and the Validation (Native Title) Act (NT) (VNT Act).

30    "Previous non-exclusive possession act" (PNEP act) is defined in s 23F of the NTA. Relevantly, the definition includes acts that are valid, occurred before 23 December 1996 and consisted of the grant of a non-exclusive pastoral lease.

31    The pastoral leases certainly occurred well before 23 December 1996. As to the leases' validity, the Applicant in her written submissions suggested that ensuring the run was stocked (that is, that livestock had been put upon the relevant land) was a statutory precondition to the valid grant of the pastoral lease. However, that argument was not pursued at the hearing and the validity of the pastoral leases has now been accepted.

32    The pastoral leases fall within the definition of "pastoral lease" for the purposes of the NTA. The leases were expressly granted "for grazing and other pastoral purposes" (in the case of the 1882 pastoral leases) or "for pastoral purposes" (in the case of the other three pastoral leases): NTA, s 248.

33    The leases were also non-exclusive pastoral leases. The latter three pastoral leases were granted under the 1890 Act. Such pastoral leases were considered in Western Australia v Ward (2002) 213 CLR 1 (Ward HC) at 190-196 per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Their Honours concluded that such pastoral leases "did not confer upon the lessee the right to exclude native title holders from the land": at 196. The latter three pastoral leases were therefore non-exclusive pastoral leases.

34    The 1882 pastoral leases, which were granted under the 1872 Act, were also non-exclusive pastoral leases. The 1882 pastoral leases contained the following exception:

RESERVING NEVERTHELESS AND EXCEPTING out of the said demise to Her Majesty Her Heirs and Successors for and on account of the present Aboriginal Inhabitants of the Province and their descendants during the continuance of this demise full and free right of ingress egress and regress into 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.

35    The terms of this exception have the clear consequence that the 1982 pastoral leases did not grant rights of exclusive possession. The pastoral leases considered in Ward HC (which were granted under the 1890 Act) contained a very similar exception that was considered significant by the High Court in reaching the conclusion that those pastoral leases granted no right of exclusive possession: at 191.

36    Since the pastoral leases are PNEP acts, the next question to determine is to whom those acts can be said to be "attributable". Under the NTA, a PNEP act is attributable to the Territory if the act affected land or waters that now form part of the Territory, and it occurred when the Territory had not yet been established: s 23JA. That is obviously the case with the grants of the pastoral leases, as the Territory was not established as a body politic until 1978. So the pastoral leases are "attributable" to the Territory.

37    Part 3C of the VNT Act governs the effect of any PNEP act that is attributable to the Territory: VNT Act, s 9K. So Part 3C applies to the pastoral leases.

38    The effect of Part 3C can be summarised as follows: if a PNEP act "involves the grant of rights and interests that are not inconsistent with native title rights and interests", the native title rights and interests will not be extinguished, but if the rights and interests granted through a PNEP act are inconsistent with native title rights and interests, the native title rights and interests are extinguished: VNT Act, ss 9L, 9M.

39    The parties agree that the grants of the pastoral leases were inconsistent with the exclusive native title rights, but they were not inconsistent with the non-exclusive native title rights. That conclusion is in accordance with the established native title jurisprudence: see, eg, Ward HC at 131 per Gleeson CJ, Gaudron, Gummow and Hayne JJ. That means, according to Part 3C of the VNT Act, that the grants of the pastoral leases extinguished the exclusive native title rights but not the non-exclusive native title rights.

THE GRAZING LICENCES

40    Nine grazing licences were granted between 1937 and 1965 under s 107 of the 1931 CL Ordinance. The parties agree that the grant of the grazing licences had no additional extinguishing effect upon the Mirarr People’s native title rights beyond the effect of the pastoral leases. That conclusion necessarily follows from the reasoning of Olney J in Hayes v Northern Territory (1999) 97 FCR 32 (Hayes). In that judgment, Olney J considered the effect of a grazing licence granted under s 107 of the 1931 CL Ordinance on native title rights. He concluded at 120 that it had no effect upon native title rights beyond that of a pastoral lease:

The right to graze stock on land under a grazing licence is not essentially different from the principal activity authorised under a pastoral lease, namely the grazing of stock. In neither case is it necessary that the licensee/lessee enjoy exclusive possession of the lands.

Thus, the non-exclusive native title rights survived the grants of the various grazing licences. The exclusive native title rights remained, of course, extinguished.

THE OCCUPATION (DEVELOPMENT) LICENCE

41    As noted above, an ODL was granted to Mudginberri on 25 June 1965 under s 108 of the 1931 CL Ordinance and Division 2A of the Crown Lands Regulations (NT) (CL Regulations), with effect from 1 July 1965 until its surrender on 11 January 1967.

42    Section 108 of the 1931 CL Ordinance provided:

(1)    The Administrator or any person thereto authorised by the Administrator may, under and subject to the regulations, grant a licence to any person to occupy any particular Crown lands for the purpose of drying or curing fish, or for any manufacturing or industrial purpose, or for any other purpose prescribed.

(2)    Licences granted in pursuance of this section may be for such period as is prescribed, but such period shall not exceed five years.

43    Section 131 of the 1931 CL Ordinance gave the Minister (defined by s 5 as "the Minister of State for the time being controlling the Northern Territory") the power to:

…make regulations not inconsistent with this Ordinance, prescribing all matters which by this Ordinance are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for the purpose of carrying out or giving effect to this Ordinance…

44    In accordance with s 131, the CL Regulations were made by the Minister. Part VII of the CL Regulations was entitled "Licences". Division 2 of Part VII was entitled "Occupation Licences". On 2 June 1965 (23 days before the grant of the ODL was made), Division 2A was added to Part VII. It was entitled "Occupation (Development) Licences". Division 2A provided that an occupation licence granted in respect of any land within a particular tract of land set out in a schedule (that included the Jabiru land) would be called an "Occupation (Development) Licence": regs 87B, 87C.

45    Regulation 87E described the character of an ODL:

An Occupation (Development) licence -

(a)    authorizes the holder to use and occupy the land the subject of the licence for the taking and shooting of buffaloes, the production of meat and hides from the carcasses of buffaloes taken or shot and for such other purposes as the Administrator approves;

(b)    may be granted for a period not exceeding five years;

(c)    is subject to the payment of an annual fee calculated at a rate not exceeding two shillings for each square mile of the land in respect of which the licence is granted;

(d)    shall be in accordance with Form 25 in the First Schedule; and

(e)    is subject to such other terms and conditions as are determined by the Administrator and specified in the licence.

46    Division 2A contained a number of other provisions that assist in describing the nature of the rights conferred upon the holder of an ODL. Most relevant is reg 87K, which provided as follows:

(1)    Subject to these Regulations and to any other law in force in the Territory, an Occupation (Development) licence confers upon the holder the right to exclude other persons from the land the subject of the licence.

(2)    The last preceding sub-regulation does not authorize a holder of an Occupation (Development) licence to exclude a person from land which is a road within the meaning of the Control of Roads Ordinance 1953-1964.

47    Regulation 87F permitted an ODL holder to apply to the Administrator for permission to construct specified improvements on the relevant land, the ownership of which improvements (if permission were granted to construct them) would vest in the ODL holder. Regulation 87G provided that at the end of the term of the ODL, the improvements would vest in the Commonwealth, but the Commonwealth would pay compensation for those improvements. Regulation 87H gave the ODL holder the power to sell, transfer, mortgage or otherwise deal with the ODL, but only with the Administrator's consent.

Contentions

48    The Respondents contended that the grant of the ODL was wholly inconsistent with the continued existence of the non-exclusive native title rights, and therefore extinguished those rights at common law. In order to be recognised as native title rights and interests for the purposes of the NTA, those rights and interests must be recognised by the common law of Australia: s 223(1)(c). So if the grant of the ODL had the effect of extinguishing native title rights at common law, those native title rights are not capable of being recognised and protected under the NTA.

49    Alternatively, the Respondents contended that the grant of the ODL was a previous exclusive possession act (PEP act) as defined by s 23B(2) of the NTA. An act will be a PEP act if it took place on or before 23 December 1996, it is valid and it consists of the grant or vesting of any of a number of specified types of interests in land. The Respondents contended that the grant of the ODL occurred before 23 December 1996, is valid and consists of either a grant of a "commercial lease that is neither an agricultural lease nor a pastoral lease": s 23B(2)(c)(iii), or a grant of a "lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters": s 23B(2)(viii).

50    If the grant of the ODL was a PEP act, it was one attributable to the Territory: NTA, s 23JA; VNT Act, s 9NA. Section 9H of the VNT Act would then apply so as to extinguish the non-exclusive native title rights, leaving no remaining unextinguished native title rights.

51    The Applicant contended that the grant of the ODL did not extinguish the non-exclusive native title rights at common law, and was not a PEP act.

52    The primary focus of the submissions was the nature of the rights conferred upon the holder of the ODL, and whether those rights means that the grant of the ODL is wholly inconsistent with the continued existence of the non-exclusive native title rights. The Respondents argued that the grant of the ODL conferred upon the holder Mudginberri a right to exclusive possession in respect of the relevant land, or, in the alternative, at least a right to exclude others from the relevant land, and that either of those rights would be wholly inconsistent with the continued existence of the non-exclusive native title rights. That focus is, of course, consistent with the High Court decision in Western Australia v Brown (2014) 253 CLR 507 (Brown HC).

53    Given the ODL is a creature of statute, determining its consistency or otherwise with native title is a question of construction. The Respondents contended that reg 87K (which only applies to ODLs, not occupation licences generally) clearly confers a right of exclusive possession. The Applicant first contended in response that reg 87K does not use the clear and unequivocal language of "exclusive possession". She secondly contended that, when reg 87K is read with the terms of the ODL itself and the other relevant provisions of the 1931 CL Ordinance and the CL Regulations, it cannot be construed as conferring a true right of exclusive possession. She thirdly contended that reg 87K is expressly made subject to "any other law in force in the Territory", which includes the common law of Australia, which recognises native title rights.

54    The Commonwealth Respondents further contended that it is not only reg 87K that indicates that an ODL confers a right of exclusive possession, but also s 108 of the 1931 CL Ordinance, which confers a right to "occupy" the relevant land, and the other relevant provisions of the 1931 CL Ordinance and the CL Regulations construed as a whole. The Commonwealth Respondents argued that a right of exclusive possession is "inherent" in a right "to occupy" land. Reg 87K is therefore, in the Commonwealth's submission, no more than a clarification of the content of the right to occupy granted by s 108. The Applicant contended in reply that the word "occupy" does not necessarily suggest exclusive possession.

Consideration

55    In Hayes, Olney J considered at 121-122 the effect on native title rights and interests of the grant of several occupation licences pursuant to s 108 of the 1931 CL Ordinance. After discussing the relevant statutory provisions, His Honour found at 122 that:

…occupation licences are non-proprietary in nature and do not confer on the licensee a right to exclusive possession and do not extinguish native title.

56    However, Olney J was not required to consider the special type of occupation licence, the ODL, provided for in Division 2A of the CL Regulations. Alternatively, the Commonwealth respondents' argument based on s 108 of the 1931 CL Ordinance necessarily involves a contention that Hayes was wrongly decided on this point. That followed from the fact that s 108, inter alia, was considered by Olney J in his finding that an occupation licence conferred no right of exclusive possession.

57    I do not accept that the Commonwealth's broader argument that all occupation licences, by conferring a right to occupy, necessarily confer a right to exclusive possession.

58    In reaching his conclusion that occupation licences do not confer a right to exclusive possession, Olney J in Hayes applied R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 (Meneling). In that case, the High Court determined that a grazing licence granted pursuant to s 107 of the CL Ordinance only conferred a "non-proprietary right of a personal nature" upon the holder: Hayes at 121. Olney J concluded in relation to the occupation licences that:

On analysis there is little to distinguish the rights conferred by an occupation licence from those conferred by a grazing licence. The reasoning in Meneling is equally applicable in the case of occupation licences…

59    For that reason, Olney J found that occupation licences conferred no right of exclusive possession upon the holder.

60    It is true that Olney J did not explicitly deal with the use of the word "occupy" in s 108 of the 1931 CL Ordinance in his consideration of occupation licences. It is also correct to say that the grazing licences considered in Meneling with which he drew an analogy did not grant a right "to occupy" land. As I do not draw too much from that decision. As was emphasised in Brown HC, the resolution of such issues depends on the rights granted by the particular instrument.

61    In my view, the use of the word "occupy" does not inherently involve a right to exclusive possession. In Ward HC, McHugh J explained at 228 that:

Possession and occupation - even sole occupation - are different concepts. … In Chrystall v Ehrhorn [1917] NZLR 773, Edwards J pointed out that giving exclusive use and occupation of land to a contractor was not the same as giving the contractor a lease of the land [i.e. an interest involving exclusive possession].

And at 215:

Non-exclusive occupation is an intelligible term; non-exclusive possession is not.

62    It is clear that the notions of "occupation" and "exclusive possession" are not coextensive. One can be given a right to occupy land without a right to exclusively possess it. The use of the word "occupy" in s 108 does not therefore dispose of the question of whether a right to exclusive possession or similar right was conferred upon the holder of an ODL. Indeed, in relation to pastoral leases (for example), the lessee is entitled to occupy the leased area but it has been held that that occupancy does not extinguish all native title rights.

63    I turn to consider the effect of reg 87K, and whether in particular its effect is to confer upon the ODL holder a right of exclusive possession. The Applicant contended that reg 87K cannot confer a right to exclusive possession because it "does not use the language of 'exclusive possession'". I do not accept that the absence of such precise words dictates the correct conclusion.

64    In my view, however, there is a distinction between a right of exclusive possession as that phrase is generally understood in property law and a mere right to exclude other persons from the land by the holder of an ODL. The effect of the grant of the right of exclusive possession is that any person other than the holder of the ODL who accesses or traverses the relevant land after the time of the grant would be prima facie guilty of trespass. In the second case, person who accesses or traverses the relevant land is not a prima facie trespasser, and it is only upon the exercise of the ODL holder's right to exclude the other person from the land does the other person's presence on the land potentially become unlawful.

65    As was made clear in Ward HC by Gleeson CJ, Gaudron, Gummow and Hayne JJ at 136, the relevant test for extinguishment of native title at common law is:

[W]hether rights have been created in others that are rights inconsistent with native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. Use of the land may suggest, it may even demonstrate, that such rights have been created or asserted, but the basic inquiry is about inconsistency of rights, not inconsistency of use.

66    That was reinforced in Brown HC.

67    So a right to "exclude", even if it is accepted that it is in some sense different from a right to "exclusive possession", might still prima facie inconsistent with the continued existence of native title. That is because even if the right is not exercised, and in fact native title rights and interests continued to be exercised on the relevant land, the relevant inquiry is not about inconsistent use but about inconsistent rights. It might be said that, prima facie, a right to exclude others from the land is inconsistent with the continued existence of native title.

68    However, I accept the Applicant's next contention, and relevantly the critical question to be answered, namely that the terms of the ODL itself (with the other provisions of the CL Regulations and 1931 CL Ordinance) demonstrate that the ODL should not be interpreted as granting a right to exclusive possession or similar right. It is a right to require the exclusion of persons from the licensed area where that is required for the carrying out of the licensed activities.

69    The grant of the ODL was for five years as a right to use and occupy the land for the purposes authorised by Div 2A of the CL Regulations and for pastoral purposes.

70    Division 2A of the CL Regulations, as noted above, authorises the holder to use and occupy the land for the taking and shooting of buffaloes and related purposes: reg 87E(a). The licence itself, following Form 25, imposes a condition restricting use to the approved uses. The other conditions included:

(5)    That the holder will at all times permit access, ingress, egress and regress to, from and over the land the subject of this licence to servants and agents of the Commonwealth who are engaged on their duties.

(6)    That the holder will at all times permit and will not obstruct the use by members of the public of any public roads over or on the land in respect of which this licence is granted.

As can be seen, condition (6) reflects reg 87K (2) referred to above.

71    More importantly, the ODL itself restricts the use for which the licensee, in this case Mudginberri, may use the land to the purposes referred to. Those purposes are not of themselves of such a character as to be inconsistent with the continued exercise of the non-exclusive native title rights.

72    The licence does not authorise the licensee to exclude any person (subject to clause (b) set out above) from being on the land. It is not inherent in the nature of a licence to use and occupy land for a specific purpose that there is an entitlement to exclude from their exercise any Aboriginal person exercising native title rights, or indeed to exclude any person from access to the land at all. In Part VI of the 1931 CL Ordinance, s 107 authorising the grant of grazing licences, limits the exercise of such a grant to land where there is no other lease or licence. No such restriction is imposed in the issue of an ODL. The inference is that an ODL may be granted over leased or otherwise licensed land, so exclusively of the type necessary to extinguish native title or other rights is not a necessary or constructional consequence of an occupation licence.

73    If, despite the above, the licence should be regarded as carrying with it (as if expressed), the right referred to in reg 87K although that is not expressed in the licence, in any event I would construe the right as being limited to excluding persons only for the carrying out or better carrying out of the authorised activities. There are two reasons for that. The first is the common sense one: rhetorically, why would that right be able to be granted to a licensee entitled to use the land only for limited purposes? And in circumstances when the licensee may not choose to undertake any authorised activities on the land? Such an entitlement, namely to exclude any other persons from the land for all purposes and at any time does not fit sensibly with the concept of a licence to use. The second is to query whether, if such a broad right was intended by reg 87K, such a fulsome right may not be within the general regulation making power in s 131 of the 1931 CL Ordinance having regard to the types of activity it contemplates.

74    Indeed, in addition to the fact that the ODL only grants rights to the holder to occupy the land for limited purposes, it may be added that the ODL is liable to forfeiture for breach, and is susceptible to cancellation on three months' notice. Those matters also suggest that reg 87K should not be construed as granting a right to exclusive possession in unqualified terms. Otherwise it would mean that, for some reason, it is a greater right than the pastoral leases considered in Ward HC at 127-129 per Gleeson CJ, Gaudron, Gummow and Hayne JJ and the grazing and miscellaneous licences considered in Hayes at 116-122 by Olney J.

75    The conclusion I have reached also accords with the language of the condition to reg 87K, that the right is subject to the CL Regulations and to "any other law in force in the Territory". That is broad enough to include the common law of Australia. The common law recognises native title rights and interests. Thus, the right to exclude other persons from the land the subject of an ODL should be subject to the native title rights and interests recognised by the common law.

76    I note the Respondents contention that such a conclusion would be contrary to the decision of the Full Court in Gumana v Northern Territory (2007) 158 FCR 349 (Gumana) where the Court (French, Finn and Sundberg JJ) at 375-376 held that the phrase "law of the Northern Territory", as it appeared in s 70(2A) of the ALRA, did not include the common law. However, that phrase was defined in the ALRA as being a "law made under, or having effect in the Northern Territory by virtue of, the Self Government Act": 375. It was determined that the common law did not fall within that definition. In my view Gumana is of little assistance. The relevant words used in reg 87K are different, and they are not defined as they were in Gumana.

77    I have not overlooked the Full Court’s comment at 376:

Though [the common law of Australia] applies in the States and Territories, it is not itself "the creature of any State [or Territory]": Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 112. It cannot properly be described as "a law of a State or Territory".

However, there is a clear distinction between the defined words "law of the Northern Territory", and the words relevant to this case, "law in force in the Northern Territory". The use of the preposition "of" led the Court in Gumana to inquire in the above passage as to whether the common law could be considered a "creature of" the Territory. Such an inquiry is not required where the words "in force" are used instead. The common law of Australia is in my view "in force" in the Territory.

78    That approach is consistent with the reasoning in Hayes. In that case, Olney J considered s 3 of the Control of Waters Ordinance 1938 (NT), which provided that the property in the water in various bodies of water vested in the Crown, subject only to:

(a)    any rights reserved or granted to any person by or under this Ordinance or any other Ordinance or law in force in the Territory; and

(b)    any right therein, or to the use thereof, inconsistent with the right of the Crown, which may be established by any person under any Ordinance or law which is, or has been, in force in the Territory.

79    Olney J said at 135 that:

Native title rights and interests, being rights which are recognised by the common law and protected by the Native Title Act, are rights which may be established by a person under a law in force in the Territory and thus the vesting effected by s 3 is subject to those rights.

80    It is to be noted that the statutory provision referred to "any Ordinance or law", so the additional words “or law” should be recognised as adding a point of distinction. And it may also be said that the condition to reg 87K should not be construed so as to include the common law, because that interpretation might render the operative part of reg 87K nugatory because (it was argued) all persons have a common law right to access vacant Crown land, so that reg 87K being subject to the common law would be nugatory.

81    I do not think the position is as clear as that. In Stow v Mineral Holdings (Australia) Pty Ltd (1979) 180 CLR 295, at 311-312, Aickin J noted the common law rights exercisable by any member of the public:

All members of the public have a right to pass freely along or across public highways … Likewise members of the public generally may be entitled pursuant to particular statutes to use specified areas of Crown Land for the purpose of recreation. … [S]tatutes such as the National Parks and Wildlife Act 1970 (Tas) … give rights to members of the public as such.

82    Indeed, the proposition is somewhat circuitous. It is a matter of construction whether reg 87K was intended to operate so as to extinguish native title rights recognised at common law, by the issue of the ODL. It is only that aspect of the common law that is in issue.

83    In any event, in my view, there is no general common law right to traverse, access or occupy Crown lands. Australian and English textbooks consistently mention public common law rights to pass freely along public highways and public common law rights to fish and navigate in the open sea and tidal waters, amongst others: Sackville & Neave's Australian Property Law (9th ed, 2013) p.6-8; Australian Real Property Law (5th ed, 2011) p.337; Elements of Land Law (5th ed, 2009), 1344-1376. None mention a general and public common law right to access Crown land. For example, Bradbrook, MacCallum, Moore & Grattan write in Australian Real Property Law at 337:

Although public land may be formally dedicated to particular purposes, such as highways, recreation areas and national parks, the state remains the nominal and beneficial owner of the land. Members of the public have the right to pass freely along public highways and across other public land to the extent of the provisions creating the public purpose for the land. However, members of the public do not as a result acquire any right which may be described as an estate or interest in the land.

84    Russell v Pennings [2001] WASCA 115 concerned a parcel of previously vacant Crown land that was then dedicated as a road in 1913. Parker J found that "[b]y virtue of that dedication … a right of all members of the public to pass and repass along [that land] has existed since 1913 and still exists." There was no suggestion that the right had existed in any case before that time.

85    Similarly, in Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 397, Barwick CJ found:

… [N]one of [the acts undertaken in order to colonise Papua New Guinea] was inconsistent with the traditional result of occupation or settlement, namely that though the indigenous people were secure in their usufructuary title to land, the land came from the inception of the colony into the dominion of Her Majesty. That is to say, the ultimate title subject to the usufructuary title was vested in the Crown. Alienation of that usufructuary title to the Crown completed the absolute fee simple in the Crown.

86    The effect of that statement is that vacant Crown lands are not held by the Crown subject to a general common law right, rather than the rights of indigenous people recognised by the common law.

87    In fact, to revert to a more basic starting point, Barwick CJ's understanding of the concept of radical title was supported by the judgment in Mabo v Queensland (No 2) 175 CLR 1 (Mabo (No 2)). For instance, at 86, Deane and Gaudron JJ echoed Barwick CJ's words when their Honours that:

If there were land within the Colony in relation to which no pre-existing native interest existed, the radical title of the Crown carried with it a full and unfettered proprietary estate.

88    Brennan J made a similar point in Mabo (No 2) at 48.

89    The common law of Australia recognises native title rights and interests. As Brennan CJ explained in Wik Peoples v Queensland (1996) 187 CLR 1 (Wik) at 84:

[Native title] rights, although ascertained by reference to traditional laws and customs are enforceable as common law rights. That is what is meant when it is said that native title is recognised by the common law.

90    (Also see Mabo (No 2) at 69-71 per Brennan J.)

91    Of course, even if the rights conferred by reg 87K are subject to the common law, as the Territory Respondents said, "the common law contemplates that native title is liable to extinguishment by laws enacted by or with the authority of the legislature or by the act of the executive in exercise of powers conferred upon it”. That statement is of course true, but it begs the question. The question is whether reg 87K on its proper consideration has that effect. That is the case where the act consists of the grant of an unalloyed right of exclusive possession. The grant will be inconsistent with the existence of any prior common law rights in respect of the relevant land, including native title rights and interests. But that is not the case where the relevant process is the regulatory grant of a conditional right to exclude others, where one of the conditions is that the right is subject to the common law.

92    Finally, it should be briefly noted that the Applicant sought to draw some additional support for her position from the fact that the ODL was subject to the Wildlife Conservation and Control Ordinance (NT) (WCC Ordinance). The WCC Ordinance prohibited all persons from shooting buffalo without a permit, except Aboriginal persons who do so for non-commercial purposes: ss 34, 36, 54. Whilst that does not directly convert to a legislative right inconsistent with the exercise of a regulation-making power in another Ordinance if reg 87K has the effect the Respondents urge, it does indicate a legislative awareness in another but related legislative context of traditional Aboriginal rights, and so makes it likely that if the regulation-making power extended to enable the extinguishment of native title rights, that would have been stated. That is by way of an additional comment only.

Conclusion

93    Accordingly, in my view neither reg 87K or s 108 should be construed so as to have conferred rights upon the holder of an ODL that are inconsistent with the continued existence of the non-exclusive native title rights, and the grant of the rights to Mudginberri did not itself operate so as to be inconsistent with, and therefore to extinguish, the Mirarr noin-exclusive native title rights.

94    If the rights conferred by the ODL does not extinguish the native title rights, then in my view that the grant of the ODL also had no greater effect on native title rights and interests than the grant of other occupation licences granted pursuant to s 108 of the CL Ordinance. As noted, Olney J concluded in Hayes decided that the grant of such occupation licences is not inconsistent with the continued existence of non-exclusive native title rights and interests at 121-122.

95    There is an additional aspect to address. Section 9H of the VNT Act (operating with s 9G of the VNT Act) provides that any PEP act attributable to the Territory extinguishes any native title in relation to the relevant land.

96    It is not contentious that the grant of the ODL, if it were a PEP act, was "attributable to the Northern Territory": NTA, s 23JA; VNT Act, s 9NA.

97    A PEP act is defined by s 23B(2) of the NTA as an act that took place on or before 23 December 1996, is valid and consists of the grant or vesting of any of a number of specified types of interests in land.

98    The Territory Respondents contended that the grant of the ODL occurred before 23 December 1996, is valid and consists of either a grant of a "commercial lease that is neither an agricultural lease nor a pastoral lease" s 23B(2)(c)(iii), or a grant of a "lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters": s 23B(2)(viii).

99    Clearly the grant of the ODL to Mudginberri occurred before 23 December 1996.

100    In order to fall within either of ss 23B(2)(c)(iii) or (viii), the ODL must be a lease. As the Territory Respondents accepted, the hallmark of a lease at common law is the conferral of a right of exclusive possession. The description of the ODL as a "licence" in the 1931 CL Ordinance and CL Regulations is not determinative of the contention that it is not a lease: Wik at 117-118 per Toohey J, at 150-152 per Gaudron J, at 195 per Gummow J, at 245 per Kirby J.

101    However, in my view, it is clear that the ODL did not confer upon its holder a right of exclusive possession as that phrase is generally understood. It conferred a qualified right of excluding others. It was subject to the qualifications referred to. As I have found, the right to exclude others (assuming that was a term of the ODL) did not extend to those holding native title rights and interests. It cannot therefore be described as a common law lease, the holder of which can exclude native title holders. "Lease" is defined at s 242 of the NTA so as to include leases other than common law leases. It includes leases enforceable in equity, a contract that contains a statement to the effect it is a lease, or anything that is by law declared to be or described as a lease. The ODL is patently none of those things. Thus, the ODL is not a lease and so its grant cannot be a PEP act.

102    The result, therefore, is that the grant of the ODL did not extinguish the non-exclusive native title rights either at common law or pursuant to the NTA or the VNT Act.

THE WILDLIFE SANCTUARY

103    As noted above, the ODL was surrendered on 11 January 1967. On 9 August 1972, declarations were published under ss 14 and 22 of the WCC Ordinance in respect of an area which included the southern part of the Jabiru land. Those declarations were declarations that the relevant land was a "sanctuary" and a "protected area". The Respondents accept that these declarations had no effect on the non-exclusive native title rights.

COMMONWEALTH ACQUISITION UPON SELF-GOVERNMENT

104    As outlined in the Background section above, the Commonwealth decided to adopt the recommendations of the Ranger Report, which included the creation of Kakadu National Park over a large tract of land including the Jabiru land.

105    At the same time, it had also been decided that the Territory should be made a 'self-governing' territory of the Commonwealth. Under the terms of the SG Act, the land comprising the Territory would cease to belong to the Commonwealth, and instead be vested in the new political body of the Territory. Pursuant to ss 69 and 60, however, a gazettal notice was published on 29 June 1978 providing that upon the commencement of self-government the Commonwealth would acquire (or retain) the land that was to become Kakadu National Park, including the Jabiru land.

Legislation

106    Section 69 of the SG Act commenced on 1 July 1978. The section was contained in Part VII of the SG Act, which was headed "Transitional Provisions".

107    Section 69 was headed "Transfers of property, &c." It relevantly provided:

(1)    All interests of the Commonwealth in land in the Territory, other than interests referred to in sub-section (5), are by force of this section, vested in the Territory on the commencing date.

(2)    All interests in land in the Territory held from the Commonwealth immediately before the commencing date are, by force of this section, held from the Territory on and after that date on the same terms and conditions as those on which they were held from the Commonwealth.

108    Section 70 of the SG Act had commenced on 22 June 1978 (as noted above). It was headed "Acquisition of certain land, &c.". It relevantly provided:

(1)    The Minister may, from time to time, recommend to the Governor-General that any interest in land vested or to be vested in the Territory by sub-section 69(2) (including an interest less than, or subsidiary to, such an interest) be acquired from the Territory by the Commonwealth under this section.

(2)    The Governor-General may, on the recommendation of the Minister under sub-section (1), authorize the acquisition of the interest for a public purpose approved by the Governor-General.

(3)    The Minister may cause to be published in the Gazette notice of the authorization of the Governor-General and, in the notice, declare that the interest is acquired under this section for the public purpose approved by the Governor-General.

(4)    Upon publication of the notice in the Gazette or immediately after the commencement of section 69, whichever is the later, the interest to which the notice relates is, by force of this section –

    vested in the Commonwealth; and

    freed and discharged from any restriction, dedication or reservation made by or under any enactment (not being an interest to which sub-section (6) applies),

to the intent that the legal estate in the interest, and all rights and powers incident to that estate or conferred by the Lands Acquisition Act 1955 in relation to that estate, are vested in the Commonwealth.

(5)    An interest that may be acquired under this section may be an interest that did not previously exist as such.

(6)    Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory.

109    Section 57 of the SG Act was headed "Continuance of laws". It provided as follows:

(1)    Subject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under enactment.

…

(3)    In this section, "existing law of the Territory" means -

(a)    any law in force in the Territory immediately before the commencing date, other than an Act or an instrument (not being an Ordinance or an instrument made under an Ordinance) made under an Act; or

(b)    an Ordinance, or an instrument under an Ordinance, in force immediately before the commencing date or made and assented to before that date but not in force before that date.

The gazettal notice

110    On 29 June 1978 (two days prior to the commencement of self-government on 1 July), pursuant to s 70(3) of the SG Act, the Commonwealth Minister of State for the Northern Territory caused to be published in the Gazette a notice of the authorisation of the Governor-General pursuant to s 70(2) of the SG Act declaring the acquisition of "the fee simple interest in the land", the land being a large tract of land that included the Jabiru land, "for the following public purpose approved by the Governor-General, namely: National Park".

111    The gazettal notice was published prior to the commencement of s 69 of the SG Act. That means that, on the plain meaning of s 70(4), the Commonwealth acquired the Jabiru land from the Territory "immediately after the commencement of s 69". The Jabiru land was first vested in the Territory by operation of s 69. But a 'split second', as it were, after that vesting, the Commonwealth acquired the Jabiru land back from the NT as a result of the operation of s 70(4), namely 1 July 1978.

112    That is what appears on final analysis to be the effect of the plain meaning of the words used in s 70(4). However, Gummow J in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 (Newcrest Mining) came to a different conclusion about how s 70(4) operates in this situation. Of course, his Honour's conclusion in that respect is binding upon me. It will be necessary to revert to Newcrest Mining shortly.

Contentions

113    The Respondents contended that the acquisition by the Commonwealth of the Jabiru land was inconsistent with the continued existence of the non-exclusive native title rights, and thus extinguished those rights at common law. They argued that, by the acquisition, the Commonwealth obtained an estate in fee simple in the Jabiru land.

114    It is now uncontroversial that the acquisition of a fee simple estate is necessarily inconsistent with the continued existence of native title rights: Fejo v Northern Territory (1998) 195 CLR 96 at 126 [43] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

115    The Respondents primarily relied upon the plain meaning of the words "fee simple interest in the land" used in the gazettal notice. They contended that these words are clearly intended to convey an estate in fee simple, necessarily incorporating a right to exclusive possession. There is no reason, they argued, not to give the words used in the gazettal notice that meaning.

116    The Applicant contended, to the contrary, first, that there is precedent to suggest that the words "fee simple" do not always mean an estate in fee simple understood as encompassing a freehold estate with the right to exclusive possession. Second, she contended that upon the proper construction of the SG Act, it is clear that s 70 was not intended to be used to grant fee simple estates to the Commonwealth, and therefore the words in the gazettal notice should not be read as such. The Applicant relied on the conclusion of Gummow J in Newcrest Mining, where the same gazettal notice was considered.

Consideration

117    The meaning of the words "fee simple" in the gazettal notice do not, the Applicant contended always or in this instance convey the type of interest has been granted.

118    Isaacs J in Commonwealth v New South Wales (1923) 33 CLR 1 (Royal Metals Case) considered the operation of s 27(2) of the Lands Acquisition Act 1906 (Cth), which required the Commonwealth to pay compensation to a State for land acquired from it, such compensation to be estimated "as if the State were the proprietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth." Isaacs J at 42 held:

The words "estate in fee simple" in this sub-section must not be misunderstood. It merely denotes the quantity of interest remaining in the State after carving out whatever interests the State has parted with.

119    That conclusion is of course limited to, and informed by, the particular circumstances of that case. Clearly, the context is different from the present. However, it does demonstrate that the mere selection of the words "fee simple" is not necessarily determinative of the question of what type of interest has been granted.

120    The Applicant’s contention about the words "fee simple" should be interpreted requires consideration of how the particular statutory context. That is what Newcrest Mining also addressed.

121    Newcrest Mining concerned a number of mining leases granted over parcels of land in Kakadu National Park. The relevant land had been acquired by the Commonwealth under the SG Act by operation of the same gazettal notice that is in issue in this case. One issue that arose was whether particular mining leases had been validly renewed by the Territory. After the commencement of self-government, and the acquisition of the Commonwealth of the relevant land, the Territory had purported to renew the relevant existing mining leases pursuant to the Mining Ordinance 1937 (NT) that, prima facie, had remained in force by virtue of s 57 of the SG Act referred to above. The Commonwealth contended that its acquisition of the relevant land had the consequence that such Ordinances were no longer in force over that land.

122    The mining leases had continued in force under the Mining Act 1980 (NT). However, s 10(1A) of the NPWC Act prohibited the carrying on or operations for the recovery of minerals in Kakadu National Park (as amended in 1987). By two proclamations under the NPWC Act in 1989 and 1981, the areas of the mining leases were included in the Kakadu National Park. The issue principally was as to Newcrest’s entitlement to compensation on just terms under s 51(xxxi) of the Constitution. That in turn raised issues as to the effectiveness of the renewals of the leases as against the Commonwealth, and if they were effective whether the entitlement under s 51(xxxi) was engaged, despite the NPWC Act by the 1987 amendment exempting the Commonwealth from liability to pay compensation by the effect of the amending legislation.

123    The Court (Toohey, Gaudron, Gummow and Kirby JJ) held that Newcrest was entitled to just terms compensation, so that to that extent the 1987 amending legislation was invalid. The remaining members of the Court (Brennan CJ, Dawson and McHugh JJ) dissented. Part of the majority ruling (in separate judgments) was that the effect of ss 57, 69 and 70 of the SG Act was to retain for the Commonwealth the reversionary and reserved interests in land in which private subsisting interests were continued in operation but were held from the Territory on the same terms as they were held from the Commonwealth prior to 1 July 1978.

124    In his judgment, Gummow J expressed views about the intersecting operation of ss 69 and 70. There was some debate in submissions about whether those views were the subject of comment in the other judgments, although it appears to me that by a general adoption of his reasons, Toohey J at 560 and Gaudron J at 561 have given them support, without specifically referring to them. His Honour’s views focused on the particular features that s 70 commenced in 22 June 1978, the s 70 notice of acquisition was gazetted before the commencing day, that is before 1 July 1978, and s 69 only commenced on 1 July 1978.

125    Gummow J held at 625 in relation to ss 69 and 70 of the SG Act that:

… [U]pon their proper construction, these provisions were directed not to the abrogation of or subtraction from existing private rights created by or pursuant to laws continued in force by s 57. Rather, their primary concern was with the adjustment of rights between the Commonwealth and its creation, the new polity established by the [SG Act - i.e. the Northern Territory].

126    As to the interaction of ss 69 and 70, Gummow J held at 626 that:

… [I]n enacting the [SG Act], the Parliament … was concerned to reserve to the Commonwealth the right to withdraw from the operation of [ss 69(2) and (4)] in favour of the Territory areas associated with public purposes of the Commonwealth, and to do so without incurring any liability to compensate the Territory. Section 70 operates to attain that end.

127    His Honour then went on to consider the application of s 70(6) (set out above). His Honour noted at 627 that gazettal notices published pursuant to s 70 of the SG Act could be published not only after the commencement of self-government on 1 July 1978, but also in the interval between the commencement of s 70 on 22 June 1978 and 1 July 1978. His Honour reasoned that s 70(6) could have no application to any "acquisition" by the Commonwealth that was effected by the publication of a gazettal notice prior to 1 July 1978 at 627:

In [the] interval [before 1 July 1978], the Territory would not yet have come into existence as a body politic. Accordingly, there were no interests in the subject land held from the Territory immediately before the acquisition by the Commonwealth upon the commencement of s 69. There would be no interests held by the then non-existent body politic, the Territory, which were derived from the interest acquired by the Commonwealth under s 70 upon the commencement of s 69. [Note: It is suggested, with respect, that where Gummow J says "interests held by" at the beginning of this sentence, his Honour means "interests held from".]

Accordingly, in those circumstances, there would be no work to be done by s 70(6).

That is because s 70(6) applies only to interests that were held from the Territory immediately before the acquisition and that were derived from the interest acquired by the Commonwealth. His Honour continued at 627:

Where, at the time when steps were taken under s 70, the land in question had already been vested in the Territory by the operation of s 69(2), after 1 July 1978, such derivative interests [as referred to in s 70(6)] might have come into existence. In those circumstances, s 70(6) would operate to provide that thenceforth they were to be held from the Commonwealth on the same terms and conditions on which they were held from the Territory. That was not this case. The notice in question was dated 27 June 1978 and published in the Gazette two days later. Accordingly, s 70(6) may be dismissed from further consideration.

128    Gummow J thus formed the view that, where a gazettal notice is published pursuant to s 70(4) prior to the commencement of s 69, then the land referred to in the notice is 'held back' from the operation of s 69(2), such that it is never vested in the NT, but rather it is not acquired by the Commonwealth (at least in the everyday sense of that word), but simply retained by the Commonwealth.

129    During the submissions, there was debate as to whether his Honour's finding in that regard accords with the plain meaning of the language employed in s 70(4), which states that in such circumstances, the Commonwealth acquires the relevant land from the NT "immediately after the commencement of s 69". The Territory Respondents, whilst accepting the Court should apply that reasoning, reserved the right to argue that it is not correct.

130    Sackville J in Margarula v Minister for Resources and Energy [1998] FCA 48 (Margarula) also expressed some doubt about its correctness, but found it unnecessary to come to any final conclusion on the matter. Sackville J's decision in that matter was appealed to the Full Court of this Court: Margarula v Minister for Resources and Energy (1998) 157 ALR 160. The Full Court (Beaumont, Lindgren and Emmett JJ) at 172 and 174 referred to Gummow J's reasoning on the topic but did not make any remarks as to its cogency, and regarded it as binding. It was not a critical issue in that case. In Pocock v Director of National Parks and Wildlife (2001) 110 FCR 419, O'Loughlin J noted the caution of Sackville J about Gummow J's reasoning in Newcrest Mining, but said that Gummow J's reasoning constituted part of his ratio decidendi and so applied it: at 431 [39]-[40].

131    It is not the role of this Court to do other than apply the considered reasoning of Gummow J even if, strictly speaking, it does form part of the ratio decidendi. The construction of the SG Act was a necessary step in reaching the conclusion that the SG Act did not operate so as to deny the mining leaseholders the right to renew their leases.

132    That is what was apparently done in Margarula both at first instance and in the Full Court. It is neither necessary nor appropriate to revisit that question.

133    In Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, McHugh J held at [60]:

Under the common law system of adjudication, the ratio decidendi of the case binds courts that are lower in the judicial hierarchy than the court deciding the case. Moreover, even courts of co-ordinate authority or higher in the judicial hierarchy will ordinarily refuse to apply the ratio decidendi of a case only when they are convinced that it is wrong.

134    I adopt the construction given by Gummow J as noted above.

135    Apart from his findings about the operation of (inter alia) ss 69 and 70 of the SG Act generally, Gummow J also made findings about the meaning of the gazettal notice in issue in Newcrest Mining (and in this case). Gummow J held at 629 that:

… the use in the notice of the term "fee simple" is to be read, consistently with s 70(1), (4) and s 69(2), (4), adjectivally and to identify the amplitude of the reversionary and reserved interests of the Commonwealth. By the steps taken under s 70, these were to be excepted from the vesting in the Territory which otherwise would occur under s 69 on 1 July 1978.

136    What Gummow J means by saying the term "is to be read … adjectivally" is not immediately clear. The above passage is footnoted with a reference to Commonwealth v Maddalozzo (1980) 29 ALR 161 (Maddalozzo). It is necessary to go to that case to properly understand the above passage. Maddalozzo concerned a gazettal notice published pursuant to the Lands Acquisition Act 1955 (Cth) that compulsorily acquired "all Estate in fee simple land included in the area of land hereunder described". A description of a small area of land near Darwin followed. The question that arose in Maddalozzo was whether that notice had effected an acquisition of mining leases granted over the relevant area of land. The Court decided that the notice had effected an acquisition of all interests in the relevant land described in the notice, including mining leases. Mason J held at 165 (the page number specifically referenced by Gummow J in Newcrest Mining):

I have come to the conclusion that the majority in the Full Court was right in holding that the notice, in speaking of "all Estate in fee simple land", was referring to all land which had been granted in fee simple by the Crown in the area in question. This is to treat the words "Estate in fee simple" as adjectival in character, describing land which has been granted in fee, not as denoting the particular estate in land which is the subject of the acquisition.

137    Read in the light of Mason J's judgment in Maddalozzo, it must be the case that Gummow J in Newcrest Mining, by saying that the term "fee simple" is to be read "adjectivally", means to say that the term "fee simple" should be read as granting an interest other than an estate in fee simple. That is, in the words of Mason J, the term "fee simple" does not "denote the particular estate in land which is the subject of the acquisition". In my view, the interpretation of Gummow J's reasoning satisfactorily explains his use of the word "adjectivally" and its subsequent reference to the above-quoted passage from Maddalozzo.

138    Gummow J then went on to say that the use of the term "fee simple" is intended to "identify the amplitude of the reversionary and reserved interests of the Commonwealth" The Commonwealth Respondents contended that the "reversionary and reserved interest" Gummow J refers to is in fact an interest which carries substantial beneficial rights in land, and cites Brennan J in Mabo (No 2) at 68 in support. But it is clear from the judgment of Gummow J that when his Honour uses the term "reversionary and reserved interest" he means mere radical title, or something close to that. Gummow J had explained at 626 that s 69 (except where s 70 is engaged) vested the "reversionary and reserved interests of the Commonwealth … in the Territory on 1 July 1978." In my view, Gummow J is there referring to the radical title that the Commonwealth held in the relevant land prior to 1 July 1978. It would be strange if his Honour then proceeded to use the same term to refer to some different kind of interest. That interpretation is also consistent with Gummow J's earlier-expressed view that the purpose of s 70 is the "adjustment" of rights between the Commonwealth and the Territory.

139    If the scope and purpose of s 70 is as Gummow J found, then it would be inimical to that scope and purpose for an estate in fee simple (as generally understood) to be granted to the Commonwealth under it. The salient points are that, on his Honour's interpretation, s 70 operates so as to "hold back" parcels of land from the operation of ss 69(2) and (4) (at least where gazettal notices were published prior to the date of commencement of self-government). It is clear that the Commonwealth held a bare radical title to the Jabiru land prior to 1 July 1978. It follows that, by engaging s 70, the Commonwealth 'held back' that radical title from the operation of ss 69(2) and (4), and thus retained that radical title. On Gummow J's construction of the SG Act, s 70 could not be used by the Commonwealth so as to amplify the ambit of its rights over a particular parcel of land by removing those rights' subjection to native title by acquiring an estate in fee simple.

140    I therefore conclude that the gazettal notice conferred only the "reversionary and reserved interests" to the land upon the Commonwealth, on the understanding that that term refers to the Commonwealth's radical title.

141    Against that conclusion, the Commonwealth Respondents contended that s 3(1) of the Northern Territory (Commonwealth Lands) Act 1980 (Cth) bolstered their argument that the gazettal notice conferred an estate in fee simple. Section 3(1) applied to the relevant gazettal notice in this case: s 3(3). Section 3(1) provided:

A notice to which this section applies shall, for all purposes, be taken to be, and have always been, a notice duly published under and in accordance with section 70 of the [SG Act], and, subject to this section, sub-section 70(4) of that Act shall, for all purposes, be taken to have, and always had, effect, to the fullest extent to which it is capable of having effect, in relation to an interest in land that is an interest specified in a notice to which this section applies.

142    In Newcrest Mining, Gummow J at 628-629 stated that the effect of this section was that the gazettal notice "[was] "for all purposes" to be taken to have and to always have had effect "to the fullest extent" to which [it was] capable of having effect in relation to "an interest in land" as specified therein".

143    The Commonwealth Respondents appeared to, at least in their written submissions, proceed on the same assumption as that of Gummow J - that s 3(1) required the words in the gazettal notice to be given a broad interpretation and not to be "read down".

144    Gummow J relied upon his understanding of the effect of s 3(1) in reaching his conclusion that the gazettal notice conferred the "reversionary and reserved interests" of the Commonwealth, and not an estate in fee simple. It appears that that was because his Honour regarded the radical title as being a "fuller" title than an estate in fee simple - in particular, it incorporated the reserved right to minerals, which an estate in fee simple does not. The Commonwealth respondents rely on s 3(1) to support the opposite argument, namely that the gazettal notice conferred upon the Commonwealth an estate in fee simple because the words "fee simple" must not be "read down" to refer to radical title, but rather should be given their fullest effect, which is to confer a "true fee simple interest".

145    Section s 3(1) in its terms does not affect the scope of the words used in the gazettal notice. It ensures the formal validity of the gazettal notice, and then provides that, as s 70(4) says, the interest to which it refers has effect "to the fullest extent", and vests that interest in the Commonwealth freed of any restriction, dedication or reservation under any enactment, other than interests preserved under s 70(6). Section 70(6) preserves all interests held from the Territory before the acquisition.

146    In oral submissions, the Commonwealth Respondents further argued that the conclusion that the notice conferred an estate in fee simple "flowed from the additional operation of subsection (4) … conferred on it by … the 1980 Amending Act": The Commonwealth Respondents in their written submissions referred to the relevant Second Reading Speech for the Northern Territory (Commonwealth Lands) Act 1980 (Cth) to support their argument. That Second Reading Speech is instructive, although in my opinion it does not support the Commonwealth Respondents' argument. The Second Reading Speech states that the purpose of the 1980 Act is to quell "questions … raised in relation to the technical validity of the acquisitions [effected by gazettal notices under the SG Act], based on whether the notifications in the Gazette of 29 June 1978 fully met the requirements of the [SG Act]": Hansard, House of Representatives, 1 May 1980, 2511-2512. That is the only purpose mentioned in the Second Reading Speech. Jabiru Township is specifically named as being affected by one of the notices the technical validity of which has been doubted. The Speech does not state that a purpose of the Act is to quell any questions about the type of interest conferred by, or the rights conferred by, or the nature of the effect of, the gazettal notice. It is consistent with its terms that it only intended to quell questions about the technical validity of the gazettal notice. I do not think in the circumstances that that Act is of assistance to resolving the present issue.

147    Finally, if, contrary to my conclusion above, the analysis Gummow J in Newcrest Mining does not apply to the construction of the SG Act (to cover the point reserved by the Territory), I would nonetheless find that the gazettal notice did not convey an estate in fee simple to the Commonwealth.

148    First, it is necessary to deal with and dismiss two arguments made by the Applicant to the effect that the two provisions ss 57 and 70(1) of the SG Act prohibit the grant of an estate in fee simple to the Commonwealth under the SG Act that extinguishes native title. The Applicant contends that it follows from these arguments that the term "fee simple interest" in the gazettal notice should be interpreted so as to refer merely to radical title rather than an estate in fee simple, and so avoid an interpretation that would invalidate the acquisition.

149    The Applicant notes that s 70(1) makes it clear that the acquisition mechanism provided for by s 70 can only be used to acquire for the Commonwealth "any interest in land vested or to be vested in the Territory by sub-section 69(2) (including an interest less than, or subsidiary to, such an interest)".

150    It is common ground between the parties that the Commonwealth did not hold an estate in fee simple in the relevant land prior to the commencement of the SG Act, but a mere radical title. Therefore no estate in fee simple was vested in the Territory by operation of s 69(2), but only that radical title that the Commonwealth had held. It necessarily follows, the Applicant contended, that no estate in fee simple could have been lawfully acquired by the Commonwealth under s 70, because it was not an "interest in land vested or to be vested in the Territory by sub-section 69(2)". Thus, the Applicant contended, the words "fee simple interest" in the gazettal notice must have been intended merely to convey the radical title to the land that was to be vested in the NT under s 69(2).

151    The Respondents pointed to the words in parentheses in s 70(1) - "(including an interest less than, or subsidiary to, such an interest)". They acknowledged that an estate in fee simple cannot be characterised as an "interest less than" radical title, but contended that an estate in fee simple can be characterised as an "interest subsidiary to" radical title. They contended that the words "or subsidiary to" must mean something other than "less than", or else those words are otiose. The definition of "subsidiary" is "serving to assist or supplement; auxiliary; supplementary; tributary, as a stream": Macquarie Dictionary, 4th ed (2005). An estate in fee simple is an interest that can fairly be described as "supplementary" or "auxiliary" to radical title. Therefore it is not contrary to the terms of s 70(1) for the Governor-General to authorise the acquisition by the Commonwealth of an estate in fee simple in land even though the Territory was only vested by s 69(2) with a radical title over that land. There is, I think merit in the Commonwealth Respondents' reasoning on this point.

152    Alternatively, the Applicant contended that s 57 has the effect that native title rights and interests cannot be affected by anything within the SG Act. As such, any acquisition of an estate in fee simple, which would necessarily extinguish native title rights and interests, could not have been permitted under the SG Act.

153    That argument must be rejected also. On the face of it, the definition of "existing law of the Territory" in s 57(3) appears wide enough to encompass the common law, and thus the recognition of native title rights and interests. However, s 57(1), which provides for the continuance of such laws, is expressed to be "subject to this Act". It is difficult to understand how s 57(1) could be interpreted so as to limit what can be done under the SG Act when it is expressly made subject to the operation of the SG Act. For that reason this particular argument is rejected.

154    However, it now remains to determine whether, when the SG Act is construed as a whole, the gazettal notice issued pursuant to that Act should be construed as securing an estate in fee simple, or only a radical title. As I have said, I find that the notice should be construed as securing only a radical title.

155    It is important to emphasise a point that has already been made above with reference to the Royal Metals Case. It is that the distinction between the radical title of the Crown, and a "fee simple" interest of the Crown, is not a distinction that was very obvious or that would have attracted much thoughtful consideration in 1978 or before that time. The distinction became much more important only after the judgment in Mabo (No 2). Apart from the discussion of Isaacs J in the Royal Metals Case, the Second Reading Speech on the Northern Territory (Commonwealth Lands) Bill 1980 (Cth) (already referred to above) provides a contextual point. The SG Act is described there at 2511 as providing that:

On the commencing day of self-government in the Northern Territory, that is on 1 July 1978, all the Commonwealth's fee simple interests in land in the Northern Territory were vested in the Northern Territory of Australia.

156    It is apparent in my view that the expression "fee simple interests" is here being used to mean "radical title", and not "estates in fee simple". Of course, those comments cannot be considered evidence of the intention of the drafter of the gazettal notice two years earlier. But they do provide some further context as to the lack of recognition of the distinction between an estate in fee simple and radical title in those years.

157    The Applicant provided further contextual background in her oral submissions by reference to the Ranger Report. That Report, as has been briefly noted, recommended that a large part of the land that was subject to the gazettal notice be granted as Aboriginal land under the ALRA. At 282-283, the Ranger Report states:

We recommend that the unalienated crown land referred to in (a) and (b) above but excluding the area selected as the regional centre [i.e. what became Jabiru] be granted to a Land Trust for the benefit of the groups of Aboriginals who are entitled by Aboriginal tradition to the use or occupation of that land, being the clan groups mentioned … above.

158    The "unalienated crown land referred to in (a) and (b)" is a large part of the land that was later subject to the gazettal notice: Ranger Report, 278, 282.

159    That recommendation was substantially given effect on 30 August 1978 (only two months after self-government) when deeds of grant were made under the ALRA to the Kakadu Aboriginal Land Trust of three large tracts of land within the area subject to the gazettal notice. Shortly afterwards, the land was leased back to the Director of National Parks and Wildlife.

160    Given the Commonwealth was planning to grant a large part of the land subject to the gazettal notice to the Kakadu Aboriginal Land Trust, it is difficult to understand why the Commonwealth would have deemed it necessary to acquire an estate in fee simple in the land. In that regard, the Respondents noted that other parts of the land were, under the Ranger Report, to be developed as a township. Eventually the Jabiru land was chosen for that purpose. So, while an estate in fee simple does not seem to be required in respect of the large tracts of land that were to be granted to the Land Trust, an estate in fee simple and its incident right to exclusive possession was required by the Commonwealth in respect of the future township land. Thus, if accepted, the contrary argument means that the entire area was acquired by the Commonwealth in fee simple because, even though the Commonwealth had no need to acquire exclusive possessory rights over most of the land, it did have a need to do so in respect of some parts. The Respondents' submission, therefore, is that the Commonwealth acquired an estate in fee simple over the whole of the land that was to become Kakadu National Park as a sort of blunt and unrefined means of attaining an estate in fee simple over a small part of it, the Jabiru land.

161    However, the assumption that the Commonwealth needed to acquire an estate in fee simple over the Jabiru land in order to establish the Jabiru Township is not necessarily correct. The Jabiru Township was eventually ultimately established by the Commonwealth through the Director of National Parks primarily by granting a lease to the JTD Authority. Of course, generally the right to grant a lease over land is an incident of an estate in fee simple. Thus, it might be assumed that the Director required an estate in fee simple in order to lawfully grant a lease to the JTD Authority. But in a national park context, that is not necessary. The Director's right to grant a lease did not arise (or at least did not need to arise) from an estate in fee simple. The Director has that right by virtue of s 9(2) of the NPWC Act in relation to national parks generally, and, specifically in relation to Kakadu National Park, also by virtue of s 9(2A). No step antecedent to the exercise of those statutory rights requires the Commonwealth to acquire an estate in fee simple over the relevant land. A national park is vested in the Director automatically upon its proclamation: NPWC Act, s 7(7). The Commonwealth does not need to hold an estate in fee simple over land in order to proclaim it to be a national park. The Commonwealth merely needs to "own" the relevant land or hold it under a lease: NPWC Act, s 7(1), 7(2). There is no reason to read the verb "own" as requiring an estate in fee simple rather than a radical title. So it must be acknowledged that it was not necessary for the Commonwealth by the gazettal notice to acquire an estate in fee simple over the entire future Kakadu National Park in order to establish the Jabiru Township.

162    It is next instructive to turn to the terms of the Lands Acquisition Act 1955 (Cth) (LA Act), which was the Commonwealth land acquisition legislation in force at the time of the commencement of self-government. The Applicant contended that the terms of s 10(4) of the LA Act are very similar to the terms of s 70(4) of the SG Act, except in some important respects. The differences, the Applicant contended, demonstrate that the Legislature did not intend any interest in land to be affected by the operation of s 70.

163    Section 10(4) of the LA Act provides (with the relevant differences with s 70(4) in italics):

Upon the publication of the notice [of acquisition] in the Gazette, the land to which the notice applies is, by force of this Act –

(a)    vested in the Commonwealth; and

(b)    freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, contracts, licences, charges and rates,

to the intent that the legal estate in the land and all rights and powers incident to that legal estate or conferred by this Act are vested in the Commonwealth.

164    As can be seen, the main difference between s 10(4) of the LA Act and s 70(4) of the SG Act is that the LA Act frees and discharges the land acquired of "all interests". The SG Act does not. It only frees and discharges the interest acquired of restrictions, dedications and reservations.

165    A comparison with the LA Act therefore suggests that the drafters of the SG Act envisaged that s 70 of the SG Act would not affect existing rights and interests over the relevant land. To a degree, that also emerges from s 70(6) of the SG Act. Of course, the drafters' omission of a provision freeing and discharging relevant land from all interests does not amount to a protection of those interests. But it is another indication that it was not envisaged that s 70 would be used so as to affect any third party's existing rights in land.

166    When the imprecise nature of the expression "fee simple interest" is borne in mind, it is in my opinion more likely than not that the use of the expression in the gazettal notice was not intended to grant an estate in fee simple. An analysis of s 70 of the SG Act suggests that its drafters did not envisage that an acquisition under it would have any adverse effect upon any third party's interests in the land. Further, there does not appear to be any reason that the Commonwealth would need to have acquired an estate in fee simple, rather than radical title, in the relevant land.

167    If, as I have concluded, the Commonwealth acquisition upon self-government was not inconsistent with continued existence of the non-exclusive native title rights, and thus did not extinguish them at common law, the Respondents contended in the alternative that the acquisition had the effect of extinguishing the non-exclusive native title rights under the NTA.

168    The Respondents contended that the acquisition was a PEP act attributable to the Commonwealth. A PEP act attributable to the Commonwealth will extinguish all native title rights pursuant to s 23C(1) of the NTA. The acquisition was an act attributable to the Commonwealth: NTA, ss 23JA, 239.

169    A PEP act is defined by s 23B(2) of the NTA as an act that took place on or before 23 December 1996, is valid and consists of the grant or vesting of any of a number of specified types of interests in land.

170    The Respondents contended that the acquisition occurred before 23 December 1996, is valid and consisted of the vesting of a freehold estate (s 23B(2)(c)(iii)).

171    The Applicant admitted that the grant of the ODL occurred before 23 December 1996, but denied that the grant was valid or that it falls within s 23B(2)(c)(iii). I have already decided that the interest vested in the Commonwealth by the gazettal notice was not an estate in fee simple. It follows that it was not a freehold estate. It is therefore unnecessary for me to decide whether the act was valid. The acquisition was not a PEP act. The Respondents' alternative contention therefore fails.

VESTING IN DIRECTOR OF NATIONAL PARKS

172    On 5 April 1979, a proclamation made under s 7(2) of the NPWC Act was published in the Commonwealth Government Gazette. It declared a specified area a park, and assigned that park the name "Kakadu National Park". The specified area lay wholly within the area acquired by the Commonwealth upon self-government. All of that land except for the Jabiru land had by this time been granted to an Aboriginal Land Trust in fee simple under the ALR Act.

173    Section 7(7) of the NPWC Act provided that:

Upon the declaration of a park … under sub-section (2), any interest held by the Commonwealth in respect of the land … within the park …, but not in respect of any minerals, becomes, by force of this sub-section, vested in the Director.

174    The Director is a statutory corporation (and a respondent to this application). It was established by s 15(1) of the NPWC Act, and now continues its existence under s 514A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

175    Section 8B(1)(a)(i) of the NPWC Act provided that particular provisions, including s 7, do not affect:

any interest in respect of [the relevant] land or in respect of any minerals on, in or beneath that land held immediately before that land was within the park … by any person other than the Commonwealth or the Director…

176    Section 70(1) of the NPWC Act provided that, subject to immaterial exceptions:

… [N]othing in this Act prevents Aboriginals from continuing, in accordance with law, the traditional use of any area of land or water for hunting or food-gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes.

177    The combined effect of ss 7(7), 8B(1)(a)(i), and 70(1) is that the proclamation of Kakadu National Park and consequent vesting in the Director would not be inconsistent with the non-exclusive native title rights.

178    The proclamation and vesting also did not constitute PEP acts, and so did not extinguish the non-exclusive native title rights via the NTA. Section 23B(9B) provides that:

An act is not a previous exclusive possession act if it is done by or under legislation that expressly provides that the act does not extinguish native title.

179    Particularly by s 8B(1)(a)(i) (and also s 70(1)), the NPWC Act expressly provides that the proclamation and vesting does not extinguish native title by providing that no previously-existing interest will be affected.

GRANT OF LICENCES TO JTD AUTHORITY

180    It will be recalled that the recommendations of the Ranger Report included a recommendation that a township be established inside Kakadu National Park. It was determined that the town would be called "Jabiru". For the purpose of establishing Jabiru, the Jabiru TD Act was passed and commenced on 12 January 1979 (a few months prior to the proclamation of Kakadu National Park). Section 4(1) of that Act established the statutory JTD Authority.

181    After the proclamation of Kakadu National Park and consequent vesting in the Director on 5 April 1979, the Director granted 29 licences to the JTD Authority. The licences were granted between 14 June 1979 and 2 April 1981. They authorised a wide range of works on the relevant land, such as the construction of roadworks and telecommunication towers, the undertaking of earthworks, and the installation of electrical reticulation.

182    The licences were granted pursuant to the NPWC Act, but there was some contention amongst the parties as to which section of the NPWC Act they were issued under. It would appear that the licences were granted under s 8D(2) of the NPWC Act. Section 8D set down a number of provisions relating to the development of a "township at Jabiru" within Kakadu National Park. Section 8D(2) provided:

At any time before a plan of management relating to [Kakadu National] Park comes into force, the Director may grant written licences to the [JTD] Authority authorizing it to do such things within the Park as are specified in the licences, being things that he considers necessary or convenient to be commenced, before the plan of management comes into force, for and in relation to the establishment and development of a township at or near a place in the Region known as Jabiru.

183    A plan of management did not come into force until 10 April 1981. As noted, the final licence was granted on 2 April 1981.

184    At the hearing it was made clear that there is now no dispute about the effect of these licences. It is agreed by all parties that the grant of these licences had no effect upon the non-exclusive native title rights. However, the construction of works pursuant to these licences is contended to have extinguished native title. That contention will be dealt with later in these reasons.

GRANT OF LEASE TO JTD AUTHORITY

Background

185    On 10 April 1981, the Minister gave notice under s 12(6) of the NPWC Act that a plan of management in respect of Kakadu National Park had come into operation. On 29 June 1981, in accordance with that plan of management, the Director granted a lease to the JTD Authority over a substantial part of the Jabiru land for a term of 40 years (the Township Lease). There was some dispute in the written submissions as to which provision of the NPWC Act the Township Lease was granted under. At the hearing, however, all parties agreed (or at least did not disagree) that it was granted pursuant to s 9(2A) of the NPWC Act. The lease was to commence on 1 July 1981 and to expire on 1 July 2021. The lease was registered (that is, entered in the Register Book of Crown leases) on 16 April 1982.

Legislation

186    Section 9(1) of the NPWC Act generally prohibited the Director from selling, leasing or otherwise disposing of any interest held by the Director in respect of land within a park. Specific exceptions to that general prohibition were provided by sub-ss 9(2), (2A) and (3). Sub-ss 9(2) and (2A) are relevant. They provide as follows:

(2)    Where the plan of management relating to a park or reserve so provides, the Director may grant leases of, or licences in respect of, land in that park or reserve in accordance with the plan of management.

(2A)    The Director may, for the purposes of establishing and developing a township as provided by section 8D, grant leases of, or licences in respect of, land in the Kakadu National Park established under this Act in the Northern Territory.

187    The Applicant and Commonwealth Respondents now both agree that the Township Lease was granted under s 9(2A) of the NPWC Act. The Territory respondents simply state that it is immaterial whether the Township Lease was granted under s 9(2) or s 9(2A). The Township Lease instrument itself contains at recital D a reference to s 9(2A). That strongly suggests that the Director understood that it was granted the Township Lease under s 9(2A). On that basis, I conclude that the Township Lease was granted under s 9(2A) of the NPWC Act.

188    I do so noting that an argument could be made that, given s 8D (referred to in s 9(2A)) confers no power to grant a lease, but strictly deals only with grants of licences. Only s 9(2) expressly confers power to grant a lease such as the township lease. However, as the Commonwealth Respondents noted in written submissions, it can be argued in reply that s 9(2A) itself confers a power to grant a lease, so long as the lease is for a purpose provided by s 8D (even if s 8D describes that purpose only in relation to the grant of licences). Both positions are therefore prima facie arguable. Given that, as the Territory Respondents submit, nothing turns on the question, I will adopt the position favoured by both the Applicant and the Commonwealth Respondents.

Issues

189    It is agreed by all parties that the grant of the Township Lease by the Director to the JTD Authority did not extinguish the non-exclusive native title rights at common law. Section 8B(1)(a)(i) of the NPWC Act (already discussed above) ensures that any interest in respect of the relevant land is not affected by provisions that have effect only in relation to a particular national park. That would include s 9(2A). The non-exclusive native title rights are clearly interests in respect of the relevant land.

190    The Territory Respondents contended that the grant of the Township Lease nonetheless extinguished the non-exclusive native title rights under the NTA. They said that the grant of the lease was a PEP act attributable to the Commonwealth, because it was a grant of a "community purposes lease", and thus fulfilled the definition of a PEP act: NTA, s 23B(2)(c)(vi). The Applicant disputed that the lease was a "community purposes lease", and in the alternative relies upon each of the exclusions from the definition of PEP act provided for at ss 23B(9A), (9B) and (9C).

Consideration

191    The Territory Respondents argued that the lease was granted in order to establish a town, that a town is a community, and thus the establishment and development of a town are community purposes. The Applicant responded that making land available to be granted to various individuals or companies, to the exclusion of others, for various purposes, does not amount to a "community purpose".

192    The expression "community purposes lease" is defined at s 249A of the NTA:

A community purposes lease is a lease that:

(a)    permits the lessee to use the land or waters covered by the lease solely or primarily for community, religious, educational, charitable or sporting purposes; or

(b)    contains a statement to the effect that it is solely or primarily a community purposes lease or that it is granted solely or primarily for community, religious, educational, charitable or sporting purposes.

193    That definition is not very illuminating. It does not directly answer the question: what is a "community purpose"? A number of cases were referred to in written submissions as to the meaning of the term "community" or "community purpose": see Re Piers Island Association and Area Assessor for Saanich and the Islands (1976) 71 CLR 270, 273; Attorney-General (NT) v Hand (1991) 172 CLR 185, 191-192. Perhaps not surprisingly, given their different contexts, those authorities are of limited assistance. I note also that in Hayes, Olney J observed at 89 that the word "community" in the NTA is not defined but his Honour considered its meaning should be limited by the words that follow it in s 249A (that is, "religious, educational, charitable or sporting"). Olney J's comments were made while determining whether establishing a women's recreational centre was a community purpose. Olney J found at 89 that it was a community purpose because its purpose was "to provide a facility for the benefit of women generally”, even though that purpose was not a religious, educational, charitable or sporting purpose.

194    I respectfully agree with that approach. It provides a starting point for defining a "community purposes lease". It is a lease that has as its dominant purpose the provision of a common benefit to the whole of a community, or to a broad sub-set of that community (in that case, women). A town lease does not of itself provide a common benefit. It merely enables a community to be established. With the community or township, there will then be areas sub-leased for residential or commercial purposes. In my view, that means that the purpose of establishing a town is not a "community purpose".

195    That interpretation is strengthened when the term "community purposes lease" is considered in its statutory context, as it must be. In the NTA, a "community purposes lease" is juxtaposed against, inter alia, a "residential lease" and "commercial lease": s 23B(2)(c). That context militates against the Territory’s argument, because the argument necessarily requires a broad context for "community purposes" such as "a purpose that in some way pertains to a community". A community requires residences to live in, and commercial operations to provide it with goods and services. But obviously leases for such purposes are intended to be categorised as "residential leases" or "commercial leases", not "community purposes leases".

196    In my view, the conclusion that the Township Lease is not a "community purposes lease" is supported by the reasoning in Griffiths v Northern Territory (2007) 165 FCR 391, referred to by the Applicant. The Full Court ( French, Branson and Sundberg JJ) held at 437 that the proclamation of a town over Crown land was not a proclamation "under which the … land … is to be used for public purposes or for a particular purpose" within the meaning of s 47B(1)(b)(ii) of the NTA. They there said, in language that was appropriated by the Applicant in its submissions:

The mere setting aside of Crown land as town lands, so that it could thereafter be granted for various purposes and to various classes of person, does not define public purposes or a particular purpose.

197    That reasoning is applicable here. The mere proclamation of a town over Crown land cannot be said to be a proclamation for a particular purpose because it is merely an act that permits further grants for a variety of purposes. Similarly, the mere lease of land for the establishment and development of a town is not a lease for "community purposes". It merely enables further grants to be made to various classes of person for various purposes. Some of those purposes will be identifiable community purposes, while others will not.

198    In any event, I further find that both ss 23B(9B) and (9C) of the NTA exclude the Township Lease from the definition of PEP act.

199    As already noted above, s 23B(9B) states that:

An act is not a previous exclusive possession act if it is done by or under legislation that expressly provides that the act does not extinguish native title.

200    The Applicant contended that s 8B(1)(a)(i) of the NPWC Act expressly provides that interests in the relevant land will not be affected by particular acts, including the grant of a lease such as the lease here in question. The Respondents said that s 8B(1)(a)(i) does not in fact contain an express provision that the grant of the lease does not extinguish native title.

201    The case law on the interpretation of s 23B(9B) is scant. However, it should be read according to the express words. Section 8B(1)(a)(i) protects "any interest in respect of [the relevant] land". There is no dispute that the phrase "any interest in respect of land" includes native title rights and interests. It may well be that the substance of s 8B(1)(a)(i) would have remained unchanged if the legislative draftsperson of the NPWC Act had instead referred to "any interest in respect of land (including native title rights and interests)" . That is, of course, somewhat hypothetical given that at the time of drafting decision in Mabo (No 2) acknowledging that native title is recognised by the common law of Australia had not been made. But the Court is required to apply s 23B(9B) in its terms. There is in the NPWC Act, whatever its intent, an express provision that s 8B(1)(a)(i) does not extinguish native title.

202    In my view, I do not think that the step that s 23B(9B) “expressly provides that [an] act does not extinguish native title” can be taken. To do so would import into the words “expressly provides” in s 23B(9B) the words “or impliedly”.

203    That interpretation of s 23B(9B) is a harsh one, given that a PEP act must have occurred on or before 23 December 1996: NTA, s 23B(2)(b). Native title was only acknowledged to be recognised by the common law in 1992 by Mabo (No 2). As such, an express provision that an act does not extinguish native title in the narrow sense contended for by the respondents will probably have been made after 1992, although many earlier pastoral leases and some legislative instruments preserved Indigenous interests. That leaves an extremely small temporal window for s 23B(9B) to operate within. But it is a further point suggesting that the broader interpretation might be warranted.

204    However, the grant of the Township Lease is nevertheless excluded from the definition of PEP act because of s 23B(9C). Section 23B(9C) provides that:

If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act:

(a)    unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or

(b)    if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters - unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters.

205    "Statutory authority" is broadly defined in s 253 of the NTA as "any authority or body (including a corporation sole) established by a law of the Commonwealth, the State or Territory other than a general law allowing incorporation as a company or body corporate." The JTD Authority is clearly such a body: JTD Act, s 4(1). So the lease to the JTD Authority prima facie falls within s 23B(9C).

206    Neither of the two provisos to s 23B(9C) apply. Both provisos refer to extinguishment of native title "apart from this Act". That is obviously a reference to extinguishment of native title at common law. As has been noted above, all parties accept that the grant of the Township Lease did not extinguish native title at common law. So the first proviso, s 23B(9C)(a) does not apply.

207    The second proviso, s 23B(9C)(b), refers to extinguishment of native title at common law by a subsequent use of the relevant land. However, it has been clear since the decision of the majority in Ward HC that the mere use of land cannot extinguish native title. Only the grant or vesting of the rights that permitted that use (if the use is lawful) can extinguish native title, not the use itself. That is made clear in this passage of the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ at 89:

As Wik and Fejo reveal, where, pursuant to statute … there has been a grant of rights to third parties, the question is whether the rights are inconsistent with the alleged native title rights and interests. 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 with which we must deal in these matters.

208    And further at 136:

The reference by Brennan J [in Mabo (No 2) at 68] to use of the land that is reserved, may distract attention from the relevant inquiries. They are, as we have said, whether rights have been created in others that are rights inconsistent with native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. Use of the land may suggest, it may even demonstrate, that such rights have been created or asserted, but the basic inquiry is about inconsistency of rights, not inconsistency of use.

209    The way these conclusions operate in relation to s 23B(9C)(b) did not go unnoticed by the majority in Ward HC, who noted at 149-150:

For the reasons given earlier, the operation of par (b) of sub-s (9C) presents some difficulty because, at first sight, it appears to proceed from the premise that use of land, as distinct from the creation or assertion of rights or powers in respect of land, may extinguish native title.

210    It was not necessary for the majority in Ward HC to finally determine the question of the interpretation of s 23B(9C)(b). The decision in Brown HC is clear. The focus is on the rights as granted, and not the selective or potential usage which might then be made of those rights.

211    In my view, therefore the lease to the JTD Authority does not fall within the proviso provided by s 23B(9C)(b). So the lease to the JTD Authority falls within s 23B(9C) and thus is not a PEP act for the purposes of s 23B of the NTA. It did not involve the grant of rights which, of themselves, were inconsistent with the continued exercise of the non-exclusive native title rights.

212    The Applicant also contended that s 23B(9A) operated so as to exclude the grant of the Township Lease from the PEP act definition. If it were necessary for me to decide that alternative contention, I would reject it.

213    Section 23B(9A) provided that:

An act is not a previous exclusive possession act if the grant or vesting concerned involves the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment of the area.

214    The Applicant contended that the grant of the lease for the establishment of the Jabiru Township did "involve" the establishment of a national park for the purpose of preserving the natural environment of the area. I reject that contention. The meaning of s 23B(9A) is clear. It applies to a grant or vesting that involves the establishment of a national park. To say that the grant of a lease for a town in a national park involves the establishment of a national park requires a strained use of the words "involve" and "establishment". There is no reason why those words should be given such a strained meaning, rather than their ordinary meaning.

GRANT OF SUB-LEASES BY JTD AUTHORITY

Background

215    The Township Lease granted from the Director to the JTD Authority commenced on 1 July 1981. On that day, sub-leases granted by the JTD Authority to other entities also commenced. Over the next 15 years or so, many more such sub-leases were granted. They are set out in detail in submissions. Many of the sub-leases were made to Crown entities, in particular the Commonwealth and the NT Housing Commission. Other sub-leases were granted to non-Crown entities, in particular ERA, but also businesses, churches, and other entities.

Legislation and lease terms

216    The JTD Act empowers the JTD Authority to grant sub-leases through the following provisions. First, s 21(1) of the JTD Act provides, under the heading "Sub-leasings":

The Authority may grant a lease of, or licence to use, land or premises.

217    Section 3 of the JTD Act clarifies that "In this Act … "lease" includes sub-lease".

218    Alternatively, the JTD Authority could source its power to grant sub-leases through ss 15(1)(b) and s 16(1) of the JTD Act. Section 16(1) provides that:

The Authority has power to do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of its functions and the exercise of its powers and may do those things outside the town of Jabiru.

Section 15(1)(b) of the JTD Act specifies that the functions of the JTD Authority include "to give leases of land and premises and parts of premises in the town of Jabiru."

219    As a further alternative source of the power to sub-lease, cl 2 of the Memorandum of Lease executed by the Director and the JTD Authority provides:

(1)    Subject to this Part the Authority may use the demised land for the purposes of the Town and for the purpose of performing its functions under the Development Act in relation to the Town.

(2)    The Authority may sub-lease any portion of the demised land to persons who are -

(a)    residents, or are about to become residents, of the Town;

(b)    conducting business in or about the Town;

(c)    persons, or within classes of persons, approved by the Authority and the Director; or

(d)    conducting mining operations within the Region.

(e)    conducting business in or about the Town;

(f)    persons, or within classes of persons, approved by the Authority and the Director; or

(g)    conducting mining operations within the Region,

and such sub-leases shall be subject to the terms and conditions of this Lease and to such other terms consistent with this Lease as the Authority may determine.

Issues

220    Only limited submissions were made as to the effect of the grants of the sub-leases at common law upon the non-exclusive native title rights. The Applicant contended that the grants of the sub-leases could not have extinguished native title because the Township Lease was granted subject to native title rights (as determined above), and so, the Director could not give what it did not have, and a sub-lease derived from that lease must also be subject to native title rights.

221    The focus of the Respondents' contentions was the extinguishment of native title by the grants of the sub-leases under the NTA. The Respondents contended that the grant of each of the sub-leases was a PEP act within s 23B of the NTA, either because it was variously a "residential lease" (s 23B(2)(c)(v)), "community purposes lease" (s 23B(2)(c)(vi)), "commercial lease" (s 23B(2)(c)(iii)); or a "lease (other than a mining lease) that confers a right of exclusive possession" (s 23B(2)(c)(viii)). The Respondents contended that the grant of each sub-lease was valid, or if invalid, was validated by either s 4 or s 4A of the VNT Act because they were either past acts or intermediate period acts pursuant to ss 228(2) and 232A(2) of the NTA respectively. The grants of the sub-leases were consequently PEP acts that extinguished the non-exclusive native title rights pursuant to s 9H of the VNT Act.

222    In the alternative, the Respondents contended that the grant of each of the sub-leases was a category D past act within s 232 of the NTA, and thus the non-extinguishment principle applies, so that the non-exclusive native title rights are not extinguished, but are wholly ineffective until such time as the sub-leases expire: NTA, s 238(3).

223    The Applicant disputed that the grants of sub-leases were PEP acts. In relation to some leases, she contended that they were not made on or before 23 December 1996 as required. In relation to all leases, she contended that they cannot be characterised as a "lease" for the purposes of the various categories in s 23B(2)(c) that refer to "leases".

224    The Applicant further contended that the leases which the Respondents asserted to be "residential leases" for the purposes of s 23B(2)(c)(v) do not correspond to the definition of that term for three different reasons: first, because many of the relevant sub-lease instruments do not explicitly specify residential purposes as a permitted use; second, because a number of the relevant parcels of land are vacant lots; and third, because the permitted use of some relevant sub-lease documents specifies only "residential purposes", not "private residential purposes".

225    The Applicant alternatively contended that the leases, in relation to the sub-leases granted to Crown entities, fall within the exclusion from the PEP act definition contained within s 23B(9C).

226    Finally, the Applicant contended in her written submissions that the grants of the sub-leases were not acts "attributable to the Territory" as s 9H of the VNT Act requires them to be.

227    As for the Respondents' alternative argument that the grants are category D past acts, the Applicant contended that the sub-leases were not acts that "affected native title" as defined by s 227 of the NTA, and thus are not subject to the non-extinguishment principle: NTA, s 238(2).

228    It is obviously necessary to descend into considerable detail to address those contentions.

Consideration

Extinguishment at common law

229    For a number of purposes, it is necessary first to address the question of the effect of the grants of sub-leases upon native title at common law. The Applicant's submission that the JTD Authority had no power to grant a sub-lease other than a sub-lease subject to native title must be accepted. The JTD Authority's lease over the Jabiru land was, it is acknowledged, expressly subject to native title rights because (as I have found) those rights were not extinguished by the Township Lease itself.

230    The further question that arises, however, is whether, notwithstanding its want of power to do so, the JTD Authority purported to grant an interest not subject to native title by granting the sub-leases. That question was not one directly addressed in submissions, and I will not come to a final view on it. It is a question that requires an analysis of the terms of the individual sub-leases. My preliminary view would be that those terms make clear that the sub-leases did purport to grant rights inconsistent with the continued existence of native title rights over the areas of those subleases. The terms of the sub-leases permit the sub-lessee to use the premises for a specified 'permitted use' or for a purpose approved under the Town Plan. Many of the sub-leases specify a 'permitted use' such as 'residential purposes' or other specific purposes, such as the building of a presbytery or fire station. The purposes approved under the Town Plan are all similar town-related purposes, such as the building of residences, businesses, and so on. It is clear that the sub-leases were intended to grant rights to do all these things. A right to do these sorts of things is clearly inconsistent with the non-exclusive native title rights. So it would seem that the grants of the sub-leases purported to grant rights inconsistent with native title rights. But because the JTD Authority could not grant more than it was itself given, the grants of the sub-leases were invalid to the extent that they purported to grant rights inconsistent with native title rights. An invalid act of course cannot extinguish native title at common law. So the grants of the sub-leases did not extinguish native title at common law even if they did purport to grant rights inconsistent with the continued existence of native title. If my preliminary conclusion is incorrect, and the grants of the sub-leases did not purport to grant rights inconsistent with the continued existence of native title, then of course the same ultimate conclusion is reached - the grants of the sub-leases did not extinguish native title at common law.

Characterisation as PEP acts

231    On the issue of extinguishment under the NT Act, the Respondents contended that the grant of each sub-lease was a PEP act. In order for that to be the case, each grant must be valid, must have been made on or before 23 December 1996, must fall within one of the descriptions contained in s 23B(2)(c), and must not be exempted from the definition of PEP act by any of the exempting provisions of s 23B of the NTA.

Validity

232    As to validity, it follows that that the grants of the sub-leases to the extent that purported to grant rights inconsistent with native title would be invalid to that extent. However, they can be validated under the NTA as "past acts" and "intermediate period acts" (subject to the issue of whether the grants were made on or before 23 December 1996, which is addressed below). All the grants of sub-leases fall within one of those two characterisations, because, amongst other fulfilled criteria, an act will be a "past act" or "intermediate period act" if "the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist": NTA, ss 228(2)(b), 232A(2)(c). It should also be noted that if the grants of the sub-leases, to the extent that they purport to grant rights inconsistent with native title, then they would be invalid to that extent in any event by operation of s 10(1) of the Racial Discrimination Act 1975 (Cth) (RDA). That invalidity may also be cured by the characterisation of the grants of sub-leases as "past acts" or "intermediate period acts".

"Took place on or before 23 December 1996"

233    As to the question of whether the relevant grants "took place on or before 23 December 1996", two issues arise. First, there are a not insignificant number of sub-leases that were registered after 23 December 1996, although the sub-lease instrument was executed and the sub-lease commenced before that date. The Applicant contended that the date of registration is the date that the sub-lease was "granted", not the date of commencement, meaning that the grants of these sub-leases would not be PEP acts. Second, a small number of the sub-leases were executed after 23 December 1996, but their commencement date was backdated so that the sub-lease commenced before 23 December 1996. The Applicant contended that those sub-leases cannot be said to have taken place on or before 23 December 1996.

234    The Territory Respondents submitted, in respect of both issues, that a "grant" should be said to have "taken place" at the moment at which the beneficiary of the grant becomes entitled to the rights attached to the grant.

235    Prima facie, that submission appears correct when one considers the background and context of the NTA, especially the fact that s 23B is part of a scheme to enhance certainty as to the extinguishing effects upon native title of certain grants of interests in land which convey to the holder rights inconsistent at common law with the continued existence of native title. It is the obtaining of rights by a third party that extinguishes native title at common law. As a matter of land law, the sub-lessee becomes entitled to the rights attached to the sub-lease at the date of the commencement of the lease: see, eg, Hayes at 89-90 per Olney J.

236    In my view, for the purposes of the NTA, the grant of a sub-lease "takes place" at the moment that the sub-lessee becomes entitled to the rights attached to the sub-lease, that is at the moment of commencement. That resolves the first issue (whether the grant takes place at the date of commencement or registration).

237    However, the second issue (whether a grant should be said to "take place" on the date of commencement when the grant is a retrospective one) does not readily fit into that analysis.

238    It is necessary briefly to examine the history of the concept of a "PEP act" to better understand those difficulties. The "PEP act" concept was introduced by the Native Title Amendment Act 1998 (Cth). The 'cut-off' date of 23 December 1996 was selected because it was the date that Wik was decided by the High Court. The Wik decision, coming four years after Mabo (No 2), decided that native title might not be extinguished by the grant of a pastoral lease. The Wik decision was perceived by the government to have created uncertainty amongst the holders of pastoral leases and other forms of proprietary interests as to the security of their rights over the relevant land. As was explained in the Second Reading Speech of 4 September 1997:

"[F]rustrations, uncertainties and tensions [about native title] were intensified following the High Court's Wik decision of 23 December 1996 which, contrary to general assumptions about the law, found that pastoral leases do not necessarily extinguish all native title.

In responding to the Wik decision, the government is determined to reduce these uncertainties...

… [T]his government respects, and will continue to respect, the Mabo and Wik decisions and the native title rights of indigenous Australians. But it is in the interests of all Australians to be clear and certain about where extinguishment has already occurred. The resolution of native title issues will be made even more difficult by unrealistic expectations on the part of claimants or by unnecessary uncertainty for others with interests in land.

Accordingly, the bill provides that certain 'previous exclusive possession acts' have extinguished native title. They include the grant of a freehold estate, leases for residential, commercial or community purposes and interests included in a schedule to the act. The bill provides that states and territories are able to confirm that such grants extinguish native title."

Thus, in essence, the "PEP act" concept was introduced to confirm that particular pre-Wik acts had extinguished native title, thus enhancing certainty for and easing the perceived frustrations and tensions of holders of proprietary interests that were granted pre-Wik, that the holders had previously understood had extinguished native title, but in the face of Wik, were now uncertain about their effect.

239    In keeping with that rationale, an act occurring after 23 December 1996 was not to be a PEP act. Instead, it must be dealt with under the "future act" regime. The holders of any proprietary interest granted after 23 December 1996 could not say that they had previously felt confident about the effect of their interest upon native title, but in the wake of Wik, were now uncertain as to that effect. Wik had been decided before their interest was granted, so any uncertainty they felt was, as it were, brought upon themselves, rather than thrust upon them by the effects of the High Court decision in Wik.

240    It follows that it would be inimical to the PEP act scheme for a grantee of a proprietary interest to obtain the benefit of "PEP act" status where the interest in question had in fact been granted after the Wik decision, but with retrospective effect. At the time the parties decided to create the interest, the Wik decision had been handed down. Generally, as has been observed, parties in such circumstances would not be entitled to avail themselves of the benefit of the PEP act scheme. There is no policy reason why the mere fixing of a retrospective date of operation of the interest should mean that the holder of the proprietary interest becomes entitled to that benefit.

241    Accordingly, in my view, it follows that the relevant date on which a grant of a proprietary interest should be said to have "taken place" for the purposes of s 23B of the NTA is the date of the commencement of the interest - that is the date upon which the holder of the interest becomes entitled to exercise the rights that are attached to that interest – or (in the second category of instances referred to above), the date upon which the interest was agreed to be granted (in this case, the date of the execution of the sub-lease instrument), where the commencement is deemed to have commenced at an earlier date.

242    It follows from the above that any sub-lease that commenced before 23 December 1996 but was registered after 23 December 1996 is a PEP act. The date of registration is not relevant to the question of whether the grant of an interest is a PEP act. However, it also follows that any sub-lease that was executed after 23 December 1996, but given retrospective effect so as to commence before that date, is not a PEP act.

Falls within a s 23B(2)(c) category

243    Next, the grants of the sub-lease must fall within one of the categories of grants set out in s 23B(2)(c) of the NTA. As noted, the Territory Respondents variously contended in relation to the different grants of sub-leases that they are either "residential leases" (s 23B(2)(c)(v)), "community purposes leases" (s 23B(2)(c)(vi)), "commercial leases" (s 23B(2)(c)(iii)); or "leases (other than a mining lease) that confers a right of exclusive possession (s 23B(2)(c)(viii)).

244    There are two principal disputes in this regard: first, whether the sub-leases can be described as "leases", and second, whether many of the asserted residential leases fall within the definition of that term in the NTA.

245    First, the Applicant contended that none of the sub-leases can be described as "leases" for the purposes of the NTA, and so cannot fall under any of the four relevant categories set out in s 23B(2)(c).

246    The NTA definition of "lease" at s 242 has already been discussed in these reasons. It includes "anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease." That would include the sub-leases. The sub-lease instruments describe the interest being granted as a "sub-lease". Section 21(1) of the JTD Act confers power upon the JTD Authority to grant leases, including sub-leases. In my view, the sub-leases were, at and before the time of their creation, properly categorised as a lease by a law of the Territory, so that the sub-leases are also "leases" for the purposes of the NTA.

247    Second, the Territory Respondents asserted in respect of a large number of the sub-leases that they are "residential leases" for the purposes of s 23B(2)(c)(v) of the NTA. The Applicant disputes that assertion in respect of many of the relevant sub-leases on three bases.

248    "Residential lease" is defined in s 249 of the NTA as follows:

Definition

(1)    A residential lease is a lease that permits the lessee to use the land or waters covered by the lease solely or primarily for constructing or occupying a private residence.

Examples of residential lease

(2)    For the purposes of subsection (1):

(a)    construction of a house or unit on land for a person to live in is an example of use of the land for constructing a private residence; and

(b)    use of a house or unit on land that is leased out to a person to live in is an example of use of the land for occupying a private residence; and

(c)    use of a hotel, motel, caravan or tent on land is an example of something that is not use of the land for occupying a private residence.

249    The first basis upon which the Applicant contended that a large proportion of the sub-leases that the respondents asserted are "residential leases" do not in fact fit that definition is as follows. Those sub-leases each contain in their respective terms the following cl 2(b):

The Lessee covenants with the Lessor that the Lessee shall -

…

(b)    not use the Demised Premises or permit the Demised Premises to be used for any purpose other than the Permitted Use or for a purpose approved under the Town Plan …

Schedule 1 of each relevant sub-lease simply states "N/A" under the heading of "Permitted Use". Thus, the Applicant contended that each relevant sub-lease did not permit the lessee to use the land solely or primarily for constructing or occupying a private residence, but rather simply permitted the lessee to use the land for a purpose approved under the Town Plan.

250    The Territory Respondents replied that the relevant sub-leases all fall within the "Residential" zone specified in the Town Plan, and so that, pursuant to Part II of the Town Plan, residential dwellings may be built there (with the consent of the relevant consent authority).

251    In my view, the sub-leases do permit the lessee solely or primarily to construct or occupy a private residence. I accept the submission of the Territory Respondents on this point. It follows that all of the sub-leases that the Territory Respondents contended are "residential leases" are in fact "residential leases" for the purpose of s 23B(2)(c)(v) of the NTA.

252    The second basis upon which the Applicant resisted the classification of sub-leases as "residential leases" relates to only 13 of the sub-leases. The Applicant noted that the land relating to those sub-leases remains vacant. She further noted that the Territory Respondents elsewhere rely (in their written submissions) on the construction of private residences upon certain lots, as well as the fact that they fall within the "Residential" zone specified in the Town Plan. The Applicant therefore contended that, given that there has been in fact no actual construction in relation to these thirteen vacant lots, they cannot be "residential leases".

253    I reject that contention. The Territory Respondents do rely on the actual construction of private residences upon the relevant lots in their written submissions. However, in my opinion, such reliance is unnecessary. The definition of "residential lease" only concerns what is permitted by the lease, not what is actually done pursuant to it. Thus, whether or not actual construction or occupation of a private residence has occurred is immaterial to the question of whether a lease is a "residential lease".

254    The third and final basis upon which the Applicant resisted the classification of sub-leases as "residential leases" relates to various sub-leases granted to the Crown or to particular instrumentalities of the Crown (such as the NT Housing Commission). In respect of those sub-leases, the Applicant contended that the permitted use is merely stated to be "residential" or "residential accommodation", and as such it is not clear that those sub-leases permit the use of the land solely or primarily for the construction or occupation of a private residence.

255    In my view, the plain words used in the definition of "residential lease" require that the lease only to permit the use of the land solely or predominantly for a private residence. The interpretation contended for by the Applicant would essentially require a lease to mandate use of the land as a private residence before it fell within the definition of "residential lease". If that interpretation had been intended, then a different qualifying word such as "mandate" or a synonym would have been used. The verb "permit" has an appreciably distinct meaning. It might be argued that the words "solely or primarily" are intended to limit the verb "permit". However, it is clear enough from the syntax of the definition that the words "solely or primarily" are intended to limit the noun "use" rather than the verb “permit”.

256    It was further contended by the Applicant that this interpretation of the definition of "residential lease" would be "consistent with the exclusion of Crown to Crown grants generally from … previous exclusive possession acts", as effected by s 23B(9C) of the NTA, because public residences, as opposed to private residences, are likely to be constructed (or even occupied) by Crown entities such as the NT Housing Commission. However, giving effect to the plain meaning of the words used in the definition of "residential lease" would not be inconsistent with the exclusion of Crown-to-Crown grants effected by s 23B(9C). Section 23B(9C) applies to Crown-to-Crown grants that prima facie fall within the PEP act definition so as to exclude them from the PEP act definition. If a Crown-to-Crown grant is a "residential lease" it will prima facie fall within the PEP act definition (so long as it also fulfils the other requirements of s 23B(2)). Section 23B(9C) will then be enlivened so as to exclude the Crown-to-Crown grant from the PEP act definition (subject to the provisos to s 23B(9C)). An interpretation of "residential lease" that has the effect of bringing Crown-to-Crown grants prima facie within the PEP act definition is not inconsistent with the rationale behind s 23B(9C). In fact, s 23B(9C) clearly envisages that this will occur, because otherwise it would be otiose.

257    For these reasons, the submission made by the Applicant in relation to these residential sub-leases to Crown entities is rejected.

258    Apart from the above objections, the Applicant accepted that the sub-leases are variously "residential leases", "community purposes leases", "commercial leases", and "leases (other than mining leases) that confer rights of exclusive possession" as contended for by the Territory Respondents in their submissions.

259    The next issue is whether the grants of sub-leases are excluded from the definition of PEP act because of any of the exclusions set out in ss 23B(9A), (9B) or (9C). An argument is only raised in this regard in relation to sub-leases granted to Crown entities. That argument will be dealt with shortly.

260    Subject to that argument, however, I conclude that sub-leases to non-Crown entities are PEP acts. It is therefore appropriate to consider the consequences of that conclusion.

Effect of non-Crown sub-leases on native title

261    PEP acts that are "attributable to" the Territory will have the effect of extinguishing all native title over the affected land: VNT Act, ss 9G, 9M. The question therefore arises whether the grants of non-Crown sub-leases are "attributable to" the Territory.

262    Section 239 of the NTA relevantly provides:

An act is attributable to ... a Territory if the act is done by:

(a)    the Crown in right of … the Territory; or

(b)    the … Legislative Assembly of … the Territory; or

(c)    any person under a law of … the Territory.

263    The JTD Authority is a corporation, and thus a person in the eyes of the law: JTD Act, s 4. Section 21(1) of the JTD Act (set out above), read with s 3 of the JTD Act, explicitly granted the JTD Authority the right to grant sub-leases. Thus, the grants of the sub-leases were acts done by a person under a law of the Territory. These circumstances are materially different from those which arose in Daniel v Western Australia (No 2) (2005) 141 FCR 426 (Daniel), where Nicholson J held that the construction of a church building by the Roman Catholic Church was not an act done by "any person under a law of the State" merely because lawful authority to build the church was required by State laws and granted in accordance with those laws. Nicholson J distinguished between an "act … attributable to the State because the State by a law has authorised that person to do the act" and an act where the State has "merely authorised all persons to apply for an authority [to do the act] by some process." It is clear that the construction of the church in Daniel was of the latter class, while the grants of the sub-leases by the JTD Authority are of the former class. So in my view the grants of the non-Crown sub-leases are "attributable" to the Territory.

264    It follows that, in accordance with s 9M of the VNT Act, the non-exclusive native title rights were extinguished in respect of the land the subject of the non-Crown sub-leases. The extinguishment is taken to have happened at the time at which each grant was made: VNT Act, s 9M(2), as the validating effect of the grant is deemed to have taken effect at that time.

Crown to Crown grants exception

265    It now remains to consider whether those sub-leases that were granted to Crown entities are "Crown to Crown grants" for the purpose of s 23B(9C) of the NTA, and thus excluded from the definition of "PEP act".

266    Section 23B(9C) has been considered in these reasons already. It provides as follows:

If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act:

(a)    unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or

(b)    if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters - unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters.

267    The grants of sub-leases said by the Applicant to be caught by s 23B(9C) are grants to the NT Housing Commission, the Director, the Australian Telecommunications Commission (and later, the Australian Telecommunications Corporation) and the Commonwealth. It can be readily accepted that all those entities are caught by the words: "the Crown in any capacity or a statutory authority": see Housing Ordinance 1959 (NT), s 5(1) (now repealed); Davis v Northern Territory Housing Commission (1984) 71 FLR 85; NPWC Act, s 15(1); Telecommunications Act 1975 (Cth), s 4 (now repealed); Telecommunications Amendment Act 1988 (Cth), s 6 (now repealed); Telstra Corporation Ltd v Worthing [1997] NSWSC 622.

268    It follows that, prima facie, s 23B(9C) applies so as to exclude the grants of sub-leases to those entities from the definition of "PEP act". However, s 23B(9C)(b) excludes acts from the exclusion (in effect restores the grants as PEP acts), if the relevant land is subsequently used in a way that extinguishes native title at common law. The Territory Respondents contend that the s 23B(9C)(b) proviso applies to the present circumstances. It therefore remains to determine whether the subsequent use by the Crown entities of the land subject to the particular sub-leases in issue was inconsistent with the non-exclusive native title rights at common law.

269    Each of the sub-leases to Crown entities have, in the submission of the Territory Respondents, had buildings and/or other infrastructure constructed upon them.

270    The Territory Respondents contend that the subsequent use of the land subject to the Crown sub-leases extinguished native title at common law. I have already noted above that the decision of the majority in Ward HC makes clear that the mere use of land in exercise of a right, the grant of which did not extinguish no-exclusive native title, cannot itself extinguish native title at common law. It might be said to follow that, at least since the decision in Ward HC, s 23B(9C)(b) has had little work to do. The status of that land where actual construction has occurred, as expressed in Brown HC, is that where the non-extinguished native title rights cannot be exercised by such physical structures thus will be supplanted or suppressed in their enjoyment of exercise to the physical structures whilst the physical structures remain in place. However, that does not mean that the grants of the particular leases themselves extinguished the non-exclusive native title, as they do not fall within the proviso provided by s 23B(9C)(b). Consequently, the Crown sub-leases do fall within s 23B(9C), and are thus excluded from the definition of "PEP act" for the purposes of s 23B.

Effect of grant of Crown sub-leases on native title

271    The grant of the Crown sub-leases were not PEP acts. However, the Crown sub-leases were past acts or intermediate period acts. Part 3 of the VNT Act sets out the effect of a past or intermediate period act on native title. That effect will depend on whether the past or intermediate period act is a Category A, Category B, Category C, or Category D past or intermediate period act. It is agreed by the parties that the Crown sub-leases were Category D past or intermediate period acts. Section 8 of the VNT Act relevantly provides that "[t]he non-extinguishment principle applies to all category … D past acts." Section 9E of the VNT Act provides the same in relation to category D intermediate period acts.

272    The non-extinguishment principle is explained in s 238 of the NTA. In essence, the principle applies such that any relevant act that affects native title does not extinguish the affected native title. Instead, the relevant act renders the affected native title rights and interests ineffective - that is, the native title "continues to exist in its entirety but the rights and interests have no effect in relation to the act." If the relevant act or its effects are later wholly removed or otherwise cease to operate, the native title rights and interests again have full effect, and if they are later partially removed, the native title rights and interests will have effect to that extent: ss 238(6), (7).

273    In my view, the non-exclusive native title rights are not extinguished over land subject to Crown sub-leases, but they are rendered ineffective until such time as the term of the sub-lease or any extension of the sublease ends. So far as the evidence goes, there is nothing to indicate that the enjoyment of the suppressed native title rights will be revived.

CONSTRUCTION OF PUBLIC WORKS

Background

274    Under the licences granted to the JTD Authority, various works were constructed or established on the Jabiru land in order to establish the Jabiru Township. Some works were also constructed or established on the Jabiru land in accordance with the sub-leases.

275    Jabiru was built from scratch, on an area that had hitherto been covered with trees, scrub and other vegetation. Construction of the works began in 1979, after the first licences were granted. Most of the work had been completed by July 1982, when Jabiru was officially opened.

276    According to the Commonwealth Respondents in their written submissions, every building and every amenity or piece of infrastructure that exists in Jabiru today was, so far as is known, constructed or established pursuant to a contract. With only a few exceptions, one of the parties to each contract was the JTD Authority. The other party was generally a private contractor.

277    The construction and establishment of the various works is the final set of acts said to have an effect on the Mirarr people's native title rights. It is said that the relevant works are "public works" for the purposes of the NTA and thus extinguish native title under the NTA and VNT Act.

Legislation

278    Section 23B(7) of the NTA provides:

An act is a previous exclusive possession act if:

(a)    it is valid (including because of Division 2 or 2A); and

(b)    it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.

279    Section 253 defines "public work" as:

(a)    any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:

(i)    a building, or other structure (including a memorial), that is a fixture; or

(ii)    a road, railway or bridge; or

(iia)    where the expression is used in or for the purposes of Division 2 or 2A of Part 2 – a stock route; or

(iii)    a well, or bore, for obtaining water;

(iv)    any major earthworks; or

(b)    a building that is constructed with the authority of the Crown, other than on a lease.

280    "Major earthworks" is defined in s 253 as:

… earthworks (other than in the course of mining) whose construction causes major disturbance to the land, or to the bed or subsoil under waters.

281    Section 9J of the VNT Act then provides for the effect on native title of the construction or establishment of a public work:

(1)    A previous exclusive possession act under section 23B(7) of the [NT] Act …extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated.

(2)    The extinguishment is taken to have happened when the construction or establishment of the public work began.

282    Finally, s 251D of the NTA additionally provides that:

In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

283    By s 3(2) of the VNT Act, s 251D applies to the VNT Act as well as the NTA.

Issues

284    The Respondents contended that various objects constructed or work carried out on the Jabiru land are "public works" because they are either buildings or other structures that are fixtures, roads, wells or bores, or major earthworks for the purposes of paragraph (a) of the "public work" definition.

285    The Commonwealth Respondents additionally contended that any object that is asserted to be, but is found not to be, a "building or other structure that is a fixture" under paragraph (a)(i) of the "public works" definition is, in the first alternative, a "major earthwork", and so falls within paragraph (a)(iii) of the "public work" definition, or, in the second alternative, a "building that is constructed with the authority of the Crown, other than on a lease", and so falls within paragraph (b) of the "public works" definition.

286    The Applicant accepted that the objects in question as addressed in the submissions were "constructed or established by or on behalf of" a statutory authority. She also accepted that the construction or establishment of the objects was valid. With a few exceptions that will be addressed, the Applicant further accepted that all the objects were constructed or established on or before 23 December 1996.

287    The Applicant contended however that the objects (generally buildings) said to be fixtures are in fact not fixtures because particular terms of the Township lease make it clear that the buildings and other structures were never intended to be permanent, and thus fail the 'object of annexation' test necessary to be characterised as a fixture. There are also a small number of objects that are asserted to be "structures" for the purposes of paragraph (a)(i) of the "public work" definition but are denied or not admitted to be so by the Applicant. Other than those objects, the Applicant accepted that, subject to the fixture issue, all other asserted "buildings" or "structures" are indeed "buildings" and "structures" as asserted.

288    As to those objects that the Respondents asserted to be "roads", the Applicant accepted that all of them, except for a number of car parks, have that character. As to those objects that the Respondents assert are "bores", the Applicant accepted all of them as properly so characterised. As to those objects that the Respondents asserted are "major earthworks", again the Applicant accepted that most of them have that character, again with a small number of exceptions that will be addressed.

289    The Respondents also asserted that a number of areas are "adjacent land" for the purposes of s 251D of the NTA. Most of those assertions are also accepted by the Applicant, but again there are a number of such assertions that will need to be dealt with as the Applicant disputed those claims.

290    Finally, more generally, the Applicant contended that s 23B(9B) of the NTA applies so as to exclude the construction or establishment of all of these objects from the definition of "PEP act". That contention is made on the ground that the construction or establishment of the objects was done under the NPWC Act, s 8(1)(a)(i) which protects interests in land including native title rights. The Respondents contended that the relevant construction or establishment cannot be said to have been done under the NPWC Act.

Consideration

Validity

291    Section 23B(7)(a) of the NTA requires that the construction or establishment of an object must have been "valid" in order for that object to be a "public work". It is agreed by the parties that the relevant construction and establishment was valid for the purposes of s 23B(7)(a), but it is instructive to outline exactly why that is the case.

292    In Ward HC, Gleeson CJ, Gaudron, Gummow and Hayne JJ held at 89:

Any particular use of land is lawful or not lawful. If lawful, the question [to determine whether extinguishment of native title at common law occurred] is what is the right which the user has. If it is not lawful, the use is not relevant to the issues with which we must deal in these matters [i.e. extinguishment of native title at common law].

293    In my view, consistent with Brown HC, I should start with the proposition that the licences under which the works were constructed and established were subject to native title rights (pursuant to s 8B(1)(a)(i) of the NPWC Act), and so any works constructed or established under such a licence were unlawful to the extent that they were inconsistent with native title rights. The same reasoning applies to works constructed or established under sub-leases, as they were carved out of the township lease, which was subject to native title rights.

294    If that view is correct, then the relevant works, though prima facie invalid, can nevertheless be validated under the past and intermediate period acts regime pursuant to the NTA (Division 2 and Division 2A, referred to in s 23B(7)(a)). That is because the construction or establishment of the relevant works was only invalid because of the existence of native title: NTA, ss 228(2)(b), 232A(2)(c). As previously, it should be noted that an intermediate period act must have occurred before 23 December 1996, and there are some sets of works for which that date is disputed. Those disputes are addressed below.

295    If my view of the validity of the relevant works is incorrect, and the relevant works were not unlawful, then of course they are valid. If they were unlawful, it is necessary to go further, and to address the individual public works.

Date of construction or establishment

296    Section 23B(7)(b) of the NTA requires that a "public work" must have been constructed or established prior to 23 December 1996.

Manaburduma Jabiru Town Camp

297    There is a set of alleged "public works" which the Applicant "in part" does not admit was constructed or established prior to 23 December 1996. That is the Manaburduma Jabiru Town Camp on lot 2317. It consists of residential shelters and associated structures. The Applicant has not clarified which part she does not admit was constructed or established prior to 23 December 1996. In written submissions, she contended that the Territory Respondents "have not specified precisely what buildings or structures [are] said to [have been] completed before 23 December 1996".

298    The Territory Respondents filed an affidavit sworn by Colin Fuller, a retired public servant who had during his career, inter alia, served as a member of the board of the JTD Authority. Mr Fuller states in that affidavit that on the basis of his knowledge of the construction of Jabiru, refreshed by a perusal of the Annual Report for the financial year ending 30 June 1983, he is able to say that "the Manaburduma Jabiru Town Camp comprising six residential shelters, an amenity block, and associated electrical reticulation, lighting, roadworks and stormwater drainage" were completed during the 1982/83 financial year, and that a "further six ablution blocks" were constructed in 1984. Moreover, the Territory Respondents tendered a large satellite photograph of Jabiru as it existed on 20 April 1996. That photograph clearly shows that a number of structures had been built on lot 2317. There are three larger structures to the far east of the photograph, and then a number of smaller structures partially obscured by trees, located a short way due west of the three larger structures at a point described by counsel for the Territory Respondents as the "driveway turnaround". Counsel for the Territory Respondents submitted that this group of smaller structures is the "main development" and consists of "a number of residential buildings, amenity and ablution blocks, and various reticulations".

299    The structures alleged to be constructed or established on lot 2317 have therefore been identified both in Mr Fuller's affidavit and in oral submissions. There is no reason not to accept the sworn evidence of Mr Fuller and the satellite photograph tendered. As such, I accept that the relevant structures comprising the Manaburduma Jabiru Town Camp constructed prior to 23 December 1996.

Street lights

300    The Commonwealth Respondents contended that street lights on the roads of Jabiru are "public works". The Applicant admits they fulfil the definition of "public work", except she said that there is insufficient evidence to demonstrate that the street lights were constructed on or prior to 23 December 1996.

301    Martin Cooper gave evidence at [30.9] in his affidavit of 4 September 2009 that during his time working for Cameron McNamara Pty Ltd as an engineer and then manager, the relevant street lights were constructed. Mr Cooper ceased the relevant employment in late 1986. That date is well before 23 December 1996. In the absence of any evidence to the contrary, I accept Mr Cooper's evidence as sufficient evidence that the street lights were constructed prior to 23 December 1996.

Underground water line to Kakadu National Park headquarters

302    Again, the Commonwealth Respondents contended that an underground water line to the Kakadu National Park headquarters is a "public work", and thus was constructed prior to 23 December 1996. Again, the Applicant contended that there is insufficient evidence to establish that fact.

303    As to this issue, the Commonwealth respondents refer to one piece of evidence. That is a plan of the water line dated July 1996. The Commonwealth Respondents asserted in written submissions that: "It can be inferred that construction of the waterline commenced within a reasonable period after the site plan issued, and therefore prior to 23 December 1996." There is no basis for such an inference. Such an inference would amount to mere speculation. Therefore, there is insufficient evidence to establish that the water line was constructed before 23 December 1996. The water line is therefore not a shown to be a "public work".

Buildings and other structures

304    As noted, there are a number of objects that are asserted to be "buildings" or "other structures" for the purposes of (a)(i) of the definition of "public work", but which the Applicant denied or did not admit fall within that description. I now turn to assess each of those objects.

Lots 962, 980, 985 and 2245

305    On lots 962 and 2245, the Territory Respondents said that a building and a telecommunications tower, and a storage shed, were respectively constructed. On lot 980, a town plaza consisting of shop buildings and covered walkways was constructed. On lot 985, a child minding centre was allegedly constructed. The parties are now agreed that these structures were constructed and are indeed "structures", but as those facts have not been formally admitted. I make findings to that effect.

Scout hall

306    On lot 2321, the Territory Respondents contended that a scout hall was constructed. It is common ground between the parties that there is now nothing on this lot other than an electrical terminal box, a sewage manhole, and two light poles. The Territory Respondents contended, however, that there once was a scout hall. The applicant disputed that.

307    The Territory Respondents tendered a printout of a record of "administrative interests" of the NT Government. Under a box headed "Custodian - Valuer General", there is a heading, "Valuation Improvements". One of the entries under that heading reads "30/10/1986 Hall", and on the next line, "Improvement type( SCOUT HALL)" (sic). Counsel for the Territory Respondents contended that that entry indicated that on 30 October 1986, the Valuer-General inspected lot 2321 and found there to be a scout hall constructed on the lot.

308    The Territory Respondents also relied upon the affidavit of John Brears, a civil engineer who conducted an inventory and inspection of various works constructed in Jabiru in September and October 2009. Mr Brears made the following observations about lot 2321: "The site does not show any sign of previous construction beyond an electrical terminal box, a sewage manhole and two light poles." It will be appreciated that this comment of Mr Brears is far from supportive of the Territory Respondents' claim that a scout hall was previously constructed on this site. It does support the Territory Respondents' claim, however, that there is at least something constructed on this site. It might also suggest that something was previously on the site which the terminal box, manhole and light poles serviced.

309    On balance, I am not satisfied by the evidence that a scout hall was constructed on lot 2321.

310    Further, there is no evidence, and no admission, as to whether the electrical terminal box, sewage manhole and two light poles that are currently on lot 2321 were constructed prior to 23 December 1996. I do not find that there has been any structure that constitutes a "public work" on lot 2321.

Walking paths

311    In addition, the Commonwealth Respondents contended that some particular walking paths within the Jabiru land are "structures" for the purpose of paragraph (a). The Applicant disputed that contention.

312    The various paths run between lots 960, 961 and 948; alongside lots 874, 875, 70 and 78; alongside lot 871; between lots 880 and 881; between lots 345, 335 and 334, and alongside lots 387 and 390.

313    The Macquarie Dictionary relevantly defines "structure" as "something built or constructed". "Build" is defined as "to construct (something relatively complex) by assembling and combining parts". "Construct" is defined as "to form by putting together parts; build; frame; devise." Those definitions are somewhat circular, but convey a broad notion of a structure as something of relative complexity that is formed by the assembling or working on or combining of parts. The definition of a "structure" is therefore very wide. On balance, I hold that that definition is wide enough to encompass a walking path. The walking paths are therefore structures for the purposes of paragraph (a) of the "public work" definition.

Fixtures

314    In relation to all those objects that the Respondents contended were "buildings or other structures that are fixtures", the Applicant contended that those objects are not in fact fixtures.

315    "Fixture" as used in the "public work" definition is to be given its common law meaning: Alyawarr, Kayteyte, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 at [307] per Mansfield J (Alyawarr). The common law definition of a fixture is an item that has "been attached to land in such a way as to become, in law, part of the land": Butt, Land Law (2010), 41. According to Professor Butt, at 42, whether that can be said to be the case will depend primarily on the relevant parties' intentions:

… [W]hether an item has become a fixture depends primarily on the intention with which the affixer put the item in place. The degree of annexation [is] a factor, but chiefly as a pointer to the relevant intention. If the affixer's intention was the better use or enjoyment of the land, in the sense of furthering the use to which the land is put, then the item is likely to be a fixture; but if the intention was the better use or enjoyment of the item itself (as distinct from the land), then the item is likely to be a chattel. Of course, the intentions may overlap; it then becomes a question of identifying the dominant intention. …

316    The Commonwealth Respondents contended that when regard is had to the statutory context in which the word "fixture" appears in the NTA, the proper test as to what constitutes a fixture ought to attach more weight to the degree of annexation of the relevant buildings and structures than the common law test expressed above would. The Commonwealth respondents attempted to draw support from, inter alia, Akiba v Queensland (No 3) (2010) 204 FCR 1 at 219-220 per Finn J. The relevant comments of Finn J do not, in my respectful opinion, significantly advance the argument of the Commonwealth. Consistent with my approach in Alyawarr, the word "fixture" should be given its common law meaning. To the extent there is any difference, I consider it to be one of minor emphasis.

317    The Applicant accepted that the relevant buildings and other structures were affixed to the land. That fact therefore gives rise to a presumption that they are fixtures: Butt, Land Law (2010), 42, particularly in the absence of other evidence. There is, I think an evidentiary obligation on the Applicant to provide some material which might show, despite the degree of annexation of the relevant buildings and other structures, other circumstances show or might show that the intention of the affixer was the better use of the item itself, rather than the land.

318    The Applicant contended that the terms of the Township Lease between the JTD Authority and the Director indicate that there was no intention on the part of those bodies for the buildings and other structures to remain permanently part of the land, and thus they were not "fixtures".

319    The terms of the Township Lease that the Applicant particularly relied upon are clauses 9, 10 and 11:

Part VI - Rehabilitation

9.    If any portion of the demised land … is disturbed by the construction of works in, on or over the said land then the Authority shall within a reasonable time take such action as is reasonably required by the Director in respect of the refilling and compaction of excavated land, re-grassing, soil stabilisation and the planting of trees and shrubs on the said disturbed land.

10.    If this Lease is terminated for any reason, the Director, the Authority and representatives of the Governments of the Commonwealth and the Territory shall meet to determine what measures (if any) should be undertaken to rehabilitate the demised land and in what manner the cost of that rehabilitation shall be borne.

Part VII - Fixtures

11.    The buildings, erections, structures or other works which but for this clause would be fixtures, on the demised land shall remain the property of the Authority or its sub-lessees or licensees and this clause shall apply whether or not such buildings, erections, structures or other works were commenced or completed before or after the commencing date of this Lease.

320    The Applicant said that these clauses evince an intention that items affixed to the land are intended for the better use of those items only.

321    In support of that contention, the Applicant relied particularly upon the judgment in Commissioner of State Revenue v Uniqema Pty Ltd [2004] VSCA 82 (Uniqema). An issue arose in that case as to whether particular items were fixtures for the purpose of the calculation of stamp duty. The items in question were plant and equipment used for generating steam and electricity. Ormiston JA (Phillips and Callaway JJA concurring) at [48] concluded that: first, the extent of annexation of the items was "not insubstantial", but, second, the object of annexation was such that the items were not fixtures. The object of annexation was discerned by an analysis of the terms of the lease under which the relevant items were affixed. The relevant terms were, as Ormiston JA said at [48], "unusual":

The land was leased for a purpose largely unrelated to the tenant's own business and its needs. Although [the tenant] had a right to sell off the balance of its electricity into the state grid, the primary purpose of the lease was solely to enable [the tenant] to generate steam and electricity for the landlord's own use on land adjacent to the tenant but which formed part of the whole of the subject land. … [T]he relationship between landlord and tenant in this case is significant in several ways. First, although the original term is extensive in duration, any renewal depends upon agreement between the parties - it is not simply a commercial choice for the tenant. Secondly, the terms of the lease … were such as to make it abundantly clear that not only did the tenant have the right to remove the plant and equipment at the end of their commercial arrangement, but that it was under an obligation to do so. In terms of intended permanence, or the contrary, there could be no more emphatic statement of the parties' objects in allowing the plant and equipment to be brought onto the land than their mutual desire to see it removed at the end of that relationship. Thirdly, the landlord agreed that all improvements and fixtures remained property of the tenant, regardless of the degree of annexation. Fourthly, the object of annexation was not related to any enjoyment of the land for the tenant's own purposes: rather the plant and equipment was brought on solely to produce power for the landlord. … [I]n the very special circumstances of this case, the … plant and equipment were not fixtures …

322    This case assists the Applicant in establishing that, even when an item is affixed with a not insubstantial degree of annexation, the resultant presumption in favour of that item being a fixture can be rebutted by consideration of terms of the lease under which the item was affixed where those terms evince an intention that the item was affixed, for the better enjoyment of that item and not the land.

323    However, there are only limited similarities between the terms of the Township Lease in this case and the terms of the lease considered in Uniqema. Clause 11 does provide that buildings and structures on the relevant land remain the property of the JTD Authority or a sub-lessor, regardless of the degree of annexation. Also, cll 9 and 10 respectively provide that the JTD Authority must rehabilitate land disturbed by construction as reasonably required by the Director, and that if the Township lease is terminated, the Director, JTD Authority, and government representatives shall meet to determine whether measures should be undertaken to rehabilitate the relevant land, and if so, what measures. But as the Applicant acknowledged, that falls far short of the obligation to remove the items from the land that was imposed by the lease considered in Uniqema. Further, other factors present in Uniqema are completely absent in the present case. Most significantly, Ormiston JA concluded, because of the unusual nature of the lease, that "the object of annexation was not related to any enjoyment of the land for the tenant's own purposes". That cannot be said of the object of annexation in this case. Thus, Uniqema is clearly distinguishable from the present case. It is a decision on its particular facts.

324    It remains, however, to determine whether, notwithstanding the fact that Uniqema is distinguishable, cll 9, 10 and 11 evince an intention that the relevant items were put in place for the better enjoyment of only the items themselves sufficient to rebut the contrary presumption that arises from the degree of annexation.

325    Turning first to clauses 9 and 10, I do not think that those clauses advance the Applicant's case. Clause 9 merely permits the Director to require the JTD Authority to rehabilitate any land it disturbs by the construction of works. It does not contemplate that the works so constructed will be removed. Nor does it require the JTD Authority to rehabilitate land in all cases where there is a disturbance of the land. Clause 10 only applies if the lease is terminated. Of course, the lease was not intended to be terminated, and has not in fact been terminated. All cl 10 does is make provision for that eventuality. Moreover, the provision it makes does not impose any obligation upon the JTD Authority or anyone else to remove any works or to rehabilitate land. It merely requires that various entities meet to determine whether any measures to rehabilitate the land should be taken, and if so what measures. Clauses 9 and 10, in my view, do not suggest that the relevant buildings and structures are fixtures.

326    I also consider that cl 11 indicates that the relevant buildings and structures are not intended to be fixtures. It is curiously drafted. But, in my view, it is clear that the relevant objects were intended to be for the better enjoyment of the land, as opposed to the item itself. In that regard, the fact that cl 11 provides that ownership of the relevant buildings and structures shall remain the property of the JTD Authority or its sub-lessees does not indicate that the buildings or structures may be intended to be for the better enjoyment of the buildings and structures. They are integrated with the land. The land may be better used with the buildings, but without the land the buildings have no existence or function at that location. If it were the case that they were for the better enjoyment of the land, it would make sense for their ownership to pass with the land. But it does not.

327    The Respondents then relied on the evidence of Mr Fuller in his affidavit of 26 October 2009, which it was said demonstrates that the intention was that the buildings and structures affixed to the Jabiru land were for the better enjoyment of the land. That evidence is as follows:

The primary driver for the establishment of … Jabiru in 1979 was to support [proposed] uranium mining activities … The Northern Territory Government also intended that the town would eventually provide a base and support for tourism-related activities and infrastructure and, in the longer term, serve as the centre for the general development of that region of the Territory.

The [JTD] Authority was created as the vehicle by which the essential framework of the Town could be retained in government control to ensure that the Town's services and form avoided the restrictions of a one-industry town, and to ensure that the Town provided high standards of housing, community facilities for physical and social activities, and educational and health facilities. The Northern Territory Government was concerned that the Town would not become a "ghost town" after the conclusion of mining activities. …

328    The Applicant objected to this part of Mr Fuller's evidence on the grounds that "the basis or knowledge of the deponent with respect to the matters stated is not established or apparent, and the statements are argumentative in form": Applicant's Notice on Respondent's Affidavits, filed 5 April 2013, [5]. That is an objection, in essence, that the evidence is opinion evidence, and does not fall within the 'expert evidence' exception to the general prohibition against opinion evidence: Evidence Act 1995 (Cth), ss 76, 79.

329    To determine the objection, it is first necessary to look to what the evidence is being used to prove. The evidence is being used by the Respondents to further their argument that the JTD Authority, when it authorised the placing of the alleged fixtures on the Jabiru land, intended that those alleged fixtures would be for the better enjoyment of the land rather than the objects themselves.

330    The relevance of Mr Fuller's evidence to the question in issue is thus not immediately obvious. Mr Fuller's evidence concerns: first, the purposes for which it was decided to establish Jabiru; and second, the purpose for which it was decided to create the JTD Authority. The establishment of Jabiru was required by the JTD Act to be carried out by the JTD Authority. The JTD Authority itself was created by the JTD Act. The JTD Act, of course, was enacted by the NT Parliament. Thus, the decisions to establish Jabiru and create the JTD Authority were decisions made by the Territory. Thus, the purposes for which those decisions were made were the purposes of the Territory.

331    There is a significant step between the purposes of the Territory by those enactments and the intention of the JTD Authority in authorising the placing of the putative fixtures on the Jabiru land. It should not be routinely assumed that the establishment of Jabiru, the creation of the JTD Authority, and the placing of the alleged fixtures on the Jabiru land, were all done by the Territory, so that the purposes of the Territory by its enactments could be assumed also to have informed the latter acts of the JTD Authority.

332    On the other hand, the JTD Authority cannot be considered to be merely an 'unthinking' arm of the executive of the Territory. The JTD Authority consists of its Chairman and no more than six other members: JTD Act, s 5(1). The Chairman is appointed by "the Minister". The only limit placed on the Minister's discretion is that the Chairman must be an NT public sector employee: JTD Act, s 6. The other members are also appointed at the discretion of the Minister: JTD Act, s 7(1). However, each "participating body" may nominate one person to be its representative on the JTD Authority. Where a participating body does so, the Minister "shall" appoint the nominee to the JTD Authority: JTD Act, s 7(2). Section 7(3) of the JTD Act sets out how a body becomes a "participating body":

… [T]he Minister may, after giving to persons and bodies who are directly involved financially in:

(a)    the development of the town of Jabiru; and

(b)    mining a prescribed substance within the meaning of the Atomic Energy Act 1953 of the Commonwealth in the Alligator Rivers Region within the meaning of the Environment Protection (Alligator Rivers Region) Act 1978 of the Commonwealth,

an opportunity to make submissions to him, declare such a person or body, or a person or body in which such a person or body has an interest, to be a participating body.

333    So while the Minister controls which bodies can become "participating bodies", once the Minister declares a body to be a participating body, that body can nominate a nominee to the JTD Authority, and the Minister "shall" appoint that nominee. As such, while it is clear that the Minister exercises a deal of control over the JTD Authority, it is not appropriate to assume that the 'intentions' of the JTD Authority are necessarily coextensive with those of the Territory broadly.

334    That observation is borne out by the first six annual reports of the JTD Authority, annexed to the affidavit of Mr Fuller. Those reports cover the years 1979 through to 1984. They indicate that "principal representatives" of "participating bodies" have formed part of the membership of the JTD Authority from its inception.

335    It is in that overall context that I assess the admissibility of Mr Fuller's challenged evidence. I have decided that I should not admit it on this topic. I do not accept that he has sufficient particular knowledge, whether expert or not, to express the opinions (or arguments) which he does. He speaks of commonly known and uncontested facts, and then of the underlying policy reasons for the Territory establishing the JTD Authority. It is in the former respect merely commonsense, and a matter which may be put by counsel (as it was). In the latter respect, the intentions of the Territory by the legislature are to be determined in more conventional ways.

336    Further, as the Applicant argued, expert evidence must state the factual basis for the opinion held. There is no such statement in the evidence of Mr Fuller. The Territory respondents state that the evidence of Mr Fuller is corroborated by annexures to Mr Fuller's affidavit. Mr Fuller's evidence regarding the NT government's intentions in relation to Jabiru is corroborated to some extent by the "Jabiru Advanced Design Study Final Report", an annexure to Mr Fuller's affidavit. This Report was written by a planning consultant and commissioned by the NT government in or about 1978. At page 2, it refers to Jabiru as being planned to be a "permanent operational town".

337    The NT respondents wished to use Mr Fuller's evidence to contend that cl 11 is not concerned with dictating the characterisation of the buildings and structures as fixtures or otherwise. It is merely concerned with dictating the question of which entity retains legal title to the buildings and structures.

338    Uninformed by Mr Fuller’s evidence, however, the background to the establishment of the JTD Authority is clear, and is set out earlier in these reasons. There is good contextual reason why an element of permanence or at least of long term usage is applicable to the characterisation of the buildings and structures as fixtures. Clause 11 in my view is concerned with dictating the question of which entity retains legal title to the buildings and structures, rather than indicating in any way that the buildings and structures are not intended to be part of the usage of the land. The manner in which cl 11 addresses that issue might raise the prospect that those buildings and structures are not intended to be for the better enjoyment of the land. But, unlike the circumstances in Uniqerma where a number of factors cumulatively amounted to "very special circumstances" that warranted the rebuttal of the presumption in favour of the building being a fixture, there are no comparable elements. Having regard to the degree of annexation, cl 11 by itself, is not sufficient to displace the presumption, arising from the degree of annexation to the land, and the circumstances in which that occurred, that the buildings and structures are fixtures.

339    I therefore conclude that the buildings and other structures are fixtures, and so fall within paragraph (a)(i) of the "public works" definition.

Gauging station on mid-Gulungul Creek

340    A specific fixture-related issue arises in relation to the gauging station on mid-Gulungul Creek, which the Commonwealth Respondents asserted is a "public work". The Applicant contended that there is no evidence to suggest the gauging station was not to be removed after the cessation of uranium mining and rehabilitation of the land.

341    The evidence of Michael Saynor at [20]-[21] of his affidavit of 6 November 2009 demonstrates that the gauging station was physically annexed to the land. It is a substantial structure. There is no evidence to rebut the presumption that the gauging station is a fixture. I so find.

Roads

342    The Applicant accepts that all the objects that the respondents allege are "roads" for the purpose of paragraph (a)(ii) of the "public works" definition are in fact "roads", with the exception of those on lots 2009, 2017 and 2028, which she has not formally admitted as "roads".

343    The objects on these lots are car parks. The Territory Respondents contended that car parks are "roads" for the purpose of paragraph (a)(ii). The Applicant now accepts (though not formally) that that is the case. I therefore find that the relevant objects on lots 2009, 2017 and 2028 are "roads" for the purpose of paragraph (a)(ii).

Bores

344    The Applicant admits that all the objects that the Respondents claim as "bores" have that character for the purpose of paragraph (a)(iii) of the "public works" definition.

Major earthworks

345    The Applicant accepts that all the objects that the NT Respondents contend are "major earthworks" for the purpose of paragraph (a)(iv) of the "public works" definition are in fact "major earthworks", with the exception of two alleged major earthworks both contained on lot 2326.

Go-kart track and pedestrian underpass (lot 2326)

346    Lot 2326 is a large lot within the Jabiru Township. On one part of it is a go-kart track, and on another part of the same lot there is a pedestrian underpass. The Applicant has now accepted in written submissions that the pedestrian underpass is a "major earthwork". I therefore make a finding to that effect.

347    The Applicant contended, however, that there is insufficient evidence to conclude that the go-kart track is a "major earthwork". In this respect, the Territory Respondents relied again upon Mr Brears' description of the go-kart track in his affidavit. That description is as follows:

The Jabiru Motor Vehicle Club comprises a racing track for cars and go-karts surfaced with bitumen to a high standard with additional kerb edge protection in certain areas. The earthworks involved in the construction of the track include levelling the area, forming contours, and provision for stormwater run off to perimeter drains. The track covers an area approximately 250 m long x 200 m wide. Adjacent to the track is a surfaced car parking area.

348    In my view, the process of "levelling the area, forming contours, and provision for stormwater run off to perimeter drains" for a 250 x 200 m track can be and should be characterised as "major disturbance to the land" "Disturbance" is relevantly defined in the Macquarie Dictionary as the act of interfering with something. The word "major" cannot be said to qualify the word "disturbance" with any degree of precision. However, the qualification of "disturbance" by the word "major” must mean that not just any disturbance will be sufficient. If any disturbance at all would be sufficient to satisfy the definition, then the word "major" would be otiose. In addition, the word “major” must require rather something more akin to "significant", and sensibly attracting that description.

349    The Explanatory Memorandum to the Native Title Bill 1993 (Cth) affords some assistance to the task of interpretation. It states that "[t]he definition of this term is intended to cover major or large scale works such as dams and weirs whose construction permanently and significantly disturbs or changes the land." It goes on to note that "the digging of a well, cultivating land to grow crops or establishing a walking trail in a national park would not constitute major earthworks." I consider that accords with the natural meaning of the word major, and in the overall context it is also sensible generally to require a disturbance which has permanently and significantly disturbed or changed the land.

350    There has been very little judicial consideration of the term "major earthwork". In Rubibi Community v Western Australia (No 7) [2006] FCA 459 (Rubibi), Merkel J considered an alleged "major earthwork" with some similarities to the go-kart track presently under consideration. His Honour held at [132] that:

McMahon Oval is [a] reserve [that] includes an uncompleted sports oval which covers approximately 40% of the reserve. The oval has never been used as an oval. There was uncontested evidence that, in the course of creating the oval, the Shire carried out earthworks and installed drainage ditches and paths. There was also evidence that the whole of the reserve was traversed and disturbed by heavy earthmoving equipment during the creation of the oval and drainage ditches. A water storage tank was installed in the northern corner of the reserve. I undertook a site visit to McMahon Oval. I am satisfied that creation of the oval was a major earthwork …

351    In Rubibi, Merkel J also considered whether a drain was a "major earthwork" at [130]-[131]:

[The drain] is an open, unsealed shallow pindan storm water drain. …

I undertook a site visit to the area to assist in determining whether there was permanent disturbance and change to the land such that it was appropriate to characterise the drain as a major earthwork. Although the drain was not very wide, its length is such that I am satisfied that it constitutes a major earthwork ...

352    There is obviously an element of judgment required. The go-cart track is sealed and contoured, with perimeter drainage works, and as installed has an adjacent surfaced car parking area. It occupies a significant space. It has, clearly, elements or features which indicate that it is intended to exist indefinitely.

353    In my view, those elements support the conclusion that it is a major earthwork. Although each circumstance must be addressed separately, I note that that conclusion seems to accord with the analysis by Merkel J in Rubibi about the oval.

Magela Creek sewage pipeline

354    The Commonwealth Respondents contended that a pipeline that pumps treated sewage from the sewage ponds on lot 2303 of the Jabiru Township to Magela Creek is a "major earthwork".

355    Martin Cooper gives detailed evidence as to this pipeline in his affidavit of 5 November 2009. Relevantly, Mr Cooper states at [90]-[95]:

The construction of the pipeline required considerable, detailed earthworks.

To construct the pipeline, individual trees and scrub had to be cleared and grubbed in the general manner described above. However, in this instance, the contractor needed to use a small bulldozer or front-end loaders to clear and grub the site, as the aboveground 'path' of the pipeline was only about five metres wide.

Excavators and front-end loaders were then used to dig out the underground trench for the pipeline.

The trench that was dug out was just under 1 metre deep and ran for approximately 2 kilometres.

…

Once the trench for the pipeline was excavated, the pipeline for the sewerage [sic] effluent was laid into the trench by the contractor and bulldozers were used to backfill and level the trench.

The description of "clearing and grubbing" referred to in the above passage is contained at [15] of Mr Cooper's affidavit. It states that "clearing and grubbing" generally involves using bulldozers or front-end loaders to fell trees and remove stumps.

356    While the trench dug was two kilometres long, and required about a 5 metre clearing width, it is only one metre deep. It has been covered. Apart from the removal of trees, I do not think that this pipeline falls within the definition of a major earthwork. The disturbance to the land whilst permanent in the sense that the pipeline lies within it, is not substantial. The digging of the trench did not cause a permanent disturbance to the land. The excavation was substantial but its residual effects are small. Again, it is a matter of judgment on all the material. In this instance, I do not characterise that disturbance as a significant one, and conclude that the Magela Creek sewage pipeline is not a "major earthwork".

Alternative characterisation of buildings and structures

357    Finally, the Commonwealth Respondents contended that every work that the Respondents contended is a building or structure is also a "major earthwork". Given that I have found that each such work is a "public work" because it is a "building or other structure that is a fixture", there is no need to consider whether those works could also be characterised as "public works" under this alternative heading.

Paragraph (b) of the "public works" definition

358    The Commonwealth Respondents also contended that all the works asserted to fall within paragraph (a)(i) of the "public works" definition (that is, buildings or other structures that are fixtures) alternatively fall within paragraph (b) of the "public works" definition. That argument need not be considered, as I have found that all the works alleged to fall within paragraph (a)(i) do in fact fall within that definition.

Adjacent land

359    Pursuant to s 251D of the NTA, "adjacent land or waters" to "public works" is treated in the same way that the land on which the public works are constructed or established is treated. The Respondents contended that a number of tracts of land are "adjacent" to "public works". Most of those contentions are admitted by the Applicant.

360    However, in some respects, the number of “alleged adjacent lands” are not admitted to have that character. These will now be addressed.

Lot 872 townhouse complex (Adjacent land on lot 871)

361    Lot 872 is a "townhouse complex", according to the affidavit of Mr Brears. The Applicant accepted that the undeveloped parts of lot 872 are "adjacent land" to the building constructed on lot 872. That is in any case now a moot point, because a non-Crown sub-lease was granted over lot 872, which I have found extinguished native title under the NTA.

362    But the Territory Respondents contended that the adjacent lot 871 is also an "adjacent land" to the townhouse complex. Lot 871 was not subject to a non-Crown sub-lease. Mr Brears provides no evidence on this issue in his affidavit. The Territory Respondents rely solely on the satellite map of Jabiru taken on 20 April 1996 to contend that lot 871 is a "shared park/garden area" that is bounded and isolated together with lot 872 by a series of roads and walkways and it is therefore an "adjacent land", being necessary for the "operation of the work".

363    In my view, the satellite map alone does not constitute proof of all these things. It demonstrates that lot 871 is indeed "bounded and isolated" together with lot 872 by roads on all sides. But that is not the definition of an "adjacent land". The appearance of lot 871 on the satellite map is also consistent with a characterisation of it as a "shared park/garden area". But its appearance could also be consistent with a host of other uses. There is insufficient evidence to conclude that it is an "adjacent land" to the public work on lot 872.

Jabiru Drive (Adjacent land on lots 953, 968, 1427, 2015, 2025 and 2032)

364    Lots 1424 and 1431 constitute the road known as Jabiru Drive. The Territory Respondents contend that lots 968, 1427, 2015, 2025 and 2032 are "adjacent land" to those two sections of road. In support of those contentions, the Territory Respondents relied on a different satellite photograph of the Jabiru Township, dated 23 April 2009. It demonstrates that the alleged adjacent lands are long, thin, vacant parcels of land on either side of Jabiru Drive, which is the main road connecting the Township with Arnhem Highway. The NT respondents said that this photograph makes it clear that these lots are "buffer lots" that are necessary for the purposes of road safety and maintenance.

365    In support of that submission, they point to the discussion of Territory government road reserve policy in King v Northern Territory [2007] FCA 944 at [192]-[194] per Moore J (King). There, his Honour refers to the evidence of a Kenneth Grattan, a senior Territory public servant responsible for planning Territory’s road works. Mr Grattan gave evidence of a government policy of requiring rural road reserves of between 100 and 200 metres (being the cumulative total of the width of the reserves on each side of the road), depending on the size of the road, being necessary for the "safe operation" and "ongoing maintenance and repair" of the road. Mr Grattan outlined eleven considerations which determined the size of a particular road reserve. Mr Grattan went on to aver that "the 100 m road reserve in the case of the [road under consideration in King was necessary" when regard was given to those considerations. Moore J accepted that evidence and found that the road reserves were for that reason "adjacent land" to the road: [213].

366    In this case, the claimed road reserves on each side of Jabiru Drive appear to be about 75 m wide each, giving a total width of 150 metres. That is within the range Mr Grattan set as being within the Territory government policy. However, what is missing from this case is evidence from a person such as Mr Grattan, avowing that in this particular case, the road reserve was necessary for the operation of the road. It ought not to be inferred that the road reserves as claimed in this case were necessary for the operation of Jabiru Drive merely because the judgment in King mentions the existence of a Territory government policy as to road reserves at some point in time, and the width of the road reserves in the present case is not inconsistent with the proposition that the road reserves are compliant with that policy.

367    However, in the absence of any evidence, it is not in my view appropriate simply to adopt as evidence the findings in King. I accept that major roads such as Jabiru Drive and Arnhem Highway required an adjacent area for their construction, establishment and operation and buffers for safety and maintenance. That is a matter of commonsense. There is no specific evidence as to what is necessary for that purpose. The Applicant has proposed that the determination of the necessary areas of adjacent land be deferred with liberty to apply to establish the precise areas required. I propose to accede to that suggestion, but to make a provisional ruling accepting the claim of the Territory.

368    The area of lots 968, 1427, 2015, 2025 and 2032 is determined to be adjacent areas to the public works constituted by Jabiru Drive, subject to the Applicant having liability to apply within 12 months of the judgment in this matter to have those areas removed from or reduced within the adjacent area as determined.

Arnhem Highway (Adjacent land on lots 2306, 2318 and 2319)

369    The land constituting Arnhem Highway is outside the claim area. Lots 2306, 2318 and 2319 are inside the claim area and are adjacent to the land constituting Arnhem Highway. The Territory Respondents make the same contention as to those lots as they do in regards to the lots adjacent to Jabiru Drive. Again, they rely on the same satellite map of Jabiru.

370    For the same reasons as given immediately above, the area of the named lots is also included in the adjacent area required with the public work which is the Arnhem Highway, subject to the Applicant having liberty to apply within 12 months of the judgment in this matter to have those areas removed from or reduced within the adjacent area as determined.

Manaburduma Jabiru Town Camp (Adjacent land on lot 2317)

371    Lot 2317 contains the Manaburduma Jabiru Town Camp. It has been accepted that the Camp is a "public work". The Territory Respondents contend that the whole of lot 2317 is "adjacent land" to the public work. The Applicant contended that there is no evidence for that contention.

372    The Territory Respondents rely on an annexure to the affidavit of Mr Fuller, being the Annual Report of the JTD Authority for the 1982/1983 financial year. At 7 of that Report, the following is stated in relation to the Manaburduma Jabiru Town Camp:

Aboriginal Camping Area (now known as Manaburduma)

Under the Plan of Management, the Authority was required to set aside 2 areas on the outskirts of the town, each 7 to 8 hectares in area, and separated from the town by a suitable buffer zone, for future aboriginal use.

373    The Report goes on to state that the Manaburduma Jabiru Town Camp was subsequently established to fulfil that requirement. In oral submissions, counsel for the Territory Respondents stated that having regard to that evidence, as well as "the size of the thing" and "the nature of the tenancy", it must be concluded that the whole of lot 2317 is "adjacent land" because it is necessary for the operation of the Camp.

374    According to the Territory government's record of "Administrative Interests", tendered by the Territory Respondents, lot 2317 comprises over 55 hectares of land. That is a significantly larger area than the required seven to eight hectares. It might be pointed out that the Plan of Management required two areas of seven to eight hectares each to be set aside. Perhaps the Camp was meant to comprise both those areas. That is a possibility. There are two vague groups of buildings visible in the aerial photograph, though there is not a great distance between them. The area is referred to as a singular camp, and not two camps. But even if I accept that possibility, that only means a maximum of 16 hectares were required for the two areas, still far short of 55 hectares. To this it might be further argued that the Plan of Management also mentions a "suitable buffer zone" between the camp and the Township. Perhaps the outstanding 39 hectares comprise that buffer zone. That inference is made less likely by the fact that only the relatively short western side of lot 2317 abuts the Township. The other boundaries of lot 2317 abut apparently vacant land. More fundamentally, however, there is no good reason to infer that 39 hectares is the appropriate size for a buffer zone. Such an inference would cross into the realm of mere speculation.

375    In my view, there is insufficient evidence to find that the whole of lot 2317 is "adjacent land" to the public work situated on that land. I accept that the seven hectares most proximate to the camp buildings comprise those buildings' "adjacent land". Beyond that, I do not accept that the area in issue is adjacent land.

Scout hall (Adjacent land on lot 2321)

376    Lot 2321 is the scout hall that has already been discussed. Given I have concluded that I cannot find that any "public work" was ever constructed there, it of course follows that there is no "adjacent land" on lot 2321.

Green waste dump (Adjacent land on lot 2326)

377    The large lot 2326 contains in one part of its bounds a "green waste dump". There has been no formal admission as to the green waste dump's “adjacent land” status, but there is no contest between the parties in that regard. A further set of maps was handed up on this issue by the Territory Respondents. Those maps set out the extent of the "adjacent land". I find that the "adjacent land" to the green waste dump is as set out in those maps.

Section 23B(9B)

378    The final argument in relation to the public works issues relates to s 23B(9B) of the NTA. This section has already been considered in these reasons. It excludes from the definition of "PEP act" any act that is done "by or under" legislation that expressly provides that the act does not extinguish native title. I have already decided that s 8B(1)(a)(ii) of the NPWC Act does not expressly make such a provision in relation to native title rights.

379    However, if it were necessary to do so, I would find that the construction or establishment of the relevant works were acts to which s 8B(1)(a)(i) applied. The relevant construction or establishment acts were done under licences and leases which were issued under ss 8D or 9(2A). That is, but for those provisions, the construction or establishment could not have occurred. Section 8B(1)(a)(i) provides that prescribed provisions (which includes ss 8D and 9(2A)) do not affect any interest in respect of land. If the relevant construction or establishment had affected any interest in respect of land, then it could be said that ss 8D or 9(2A) had affected an interest in respect of land without any straining of the meaning of the verb "affect". Thus, but for my earlier ruling, s 8B(1)(a)(i) applied to the construction or establishment.

380    The final question then would be whether the construction or establishment occurred by or under the NPWC Act. In that regard, the Applicant first pointed to s 10(3) of the NPWC Act, which relevantly states:

Subject to sub-sections (4) and (4A) -

(a)    no excavation shall be carried on;

(b)    no building or other structure shall be erected;

(c)    no works shall be carried out; and

(d)    no timber shall be felled or taken,

in a park or reserve except in accordance with the plan of management relating to that park or reserve.

381    Section 10(3) is expressly made subject to s 8D: NPWC Act, s 10(1). Section 8D, with which I have already dealt in these reasons, permits licences to be granted for the development of the Jabiru Township prior to a plan of management coming into effect. In addition, s 9(2A) gives the Director power to grant licences, as well as leases, to develop the Jabiru Township. Section 10(3) is not subject to s 9(2A). So s 9(2A) only grants the Director the power to grant licences and leases after a plan of management has come into effect, and in accordance with that plan of management (because otherwise the grant would contravene s 10(3)).

382    The Applicant said that "ss 8D and 9(2A) [of the NPWC Act] … authorise and give legal effect to the construction of a work at the township by the JTDA."

383    The Respondents disputed that the relevant acts were done "by or under" the NPWC Act. They rely on Griffith University v Tang (2005) 221 CLR 99 (Tang), where at 130 Gummow, Callinan and Heydon JJ state a test as to whether a particular decision is made "under" an enactment (as that expression is used in the Judicial Review Act 1991 (Qld), s 4):

The determination of whether a decision is "made … under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. …

384    The Commonwealth Respondents particularly emphasised the second limb of the above test. They contended that it cannot be said that the conferral and/or alteration of legal rights that the relevant acts effected "derive from" the NPWC Act.

385    In my view, the second limb of the Tang test is of limited assistance in the present context. Tang considered the expression "under an enactment" in the very different context of administrative law. It is clear that the test expressed by their Honours, in particular the second criterion, is tailored to that context and is inapt to deal with the present context. The other criterion of the test cited above is (in part) that "the decision must itself confer, alter or otherwise affect legal rights or obligations". That criterion makes sense in the context of the Judicial Review Act 1991 (Qld). It makes less obvious sense in the context of the NTA. The relevant act is not (or at least is not necessarily) a "decision", and it is difficult to see why it would be important in the NTA context, as opposed to an administrative law context, that the relevant act "confers, alters or otherwise affects legal rights or obligations". Indeed, if the Tang test were applied literally in the present circumstances, it may well be said that the mere construction or establishment of a particular work cannot be said to have conferred, altered or affected any legal rights. The only way it could affect legal rights is if it extinguishes native title rights because it is a PEP act under the NTA. But of course whether the relevant acts are PEP acts is the very question being determined. To determine what is meant by "by or under" an enactment in the context of s 23B(9B), I do not think Tang is decisive.

386    Obviously, Tang does provide some general guidance - an act done "under" an enactment is one that is "expressly or impliedly required or authorised" by the enactment, or one that "derives from" the enactment. But using these alternative formulations of the question to be determined does not answer that question.

387    It is clear that there are two senses in which one can speak of doing an act "under" an enactment. In R v Clyne; Ex parte Harrap [1941] VLR 200 (Clyne), O'Bryan J helpfully described those two senses as "pursuant to" (a narrow interpretation) and "by virtue of" (a broad interpretation). In the present case, a broad interpretation of "under" could include the construction of the relevant works. It can be said that the relevant acts were done "by virtue of" the NPWC Act in that they directly relied upon, and that their legal authority emanated from, a lease, licences, and a plan of management, all issued or granted pursuant to the NPWC Act. Conversely, a narrow interpretation of "under" would not include the construction of the relevant works. It would be said that only the lease, licences, and plan of management were issued "pursuant to" the NPWC Act. All subsequent acts relying on those instruments are not done "pursuant to" the NPWC Act, but only done "pursuant to" those instruments.

388    An example of the distinction between these two interpretations of the word "under" is provided by Clyne itself. In that case, a provision of a Crimes Act stated that a right of appeal against a conviction lay only for convictions "under" Part VI of the Act. The provision that established the relevant offence was not in Part VI. But the provision that enabled an information or complaint to be prosecuted in the Court of Petty Sessions (as had occurred in order to obtain the conviction), was within Part VI. O'Bryan J reasoned that while the conviction had been obtained "by virtue of" the provision enabling the information or complaint to be prosecuted, the conviction was "pursuant to" the provision that established the criminal offence. After having regard to the relevant context and circumstances, O'Bryan J held that "under" should be interpreted as meaning "pursuant to", rather than "by virtue of". The appellant therefore had no right of appeal.

389    An example of an adoption of the broader interpretation of "under" is provided in R v Kemp (1979) 69 Cr App R 330, where the English Court of Appeal held, after an extensive analysis of the relevant context, that a conspiracy to commit an offence under the Misuse of Drugs Act 1971 (UK) is an offence "under" that Act, even though conspiracy was a common law offence, and no provision of the Act made conspiracy a statutory offence. Though the Court did not use the expressions "pursuant to" or "by virtue of", it is obvious that it could not be said that conspiracy was an offence "pursuant to" the Act. It could only be said that conspiracy was an offence "by virtue of" the Act, because if the statutory offence had not been created by the Act, then there would have been no conspiracy to commit an offence.

390    The question, then, is which of these two alternative interpretations of "under" - "pursuant to" or "by virtue of" is most apt in the case at hand. To determine that question it is necessary to refer to the relevant context and circumstances.

391    The relevant Explanatory Memorandum explains that s 23B(9B) (at the time of drafting, s 23B(9C)) was an Opposition amendment to the Native Title Amendment Bill 1998 (Cth). Its purpose was to:

[make] it clear that if an act is done pursuant to a law which says that the doing of the act does not extinguish native title rights, that act is not a previous exclusive possession act, no matter what its effect under the common law may have been. (original emphasis)

That is, s 23B(9B) was inserted to ensure that native title rights and interests are protected where an applicable enactment specifically provides that a particular act will not affect native title rights.

392    In my opinion, a broad interpretation of the word "under" better achieves the objective of the Opposition amendment as expressed in the explanatory memorandum. That objective is to ensure that where there is an express protection of native title rights in relation to an act, that protection is not rendered ineffective by the PEP act regime. A narrow interpretation of "under" in s 23B(9B) would render the protection afforded by s 23B(9B) ineffective. In the present case, it would mean that s 23B(9B) would prevent the Township Lease from being a PEP act and thus extinguishing native title. But it would not prevent subsequent acts done in purported reliance upon or by virtue of the Township Lease that are destructive of native title, and thus in violation of the (assumed, for present purposes) express protection of native title subject to which the lease was granted, from validly extinguishing native title.

393    That is, on that assumption, s 23B(9B) would appear to ensure that the Township Lease's subjection to existing native title rights is respected, insofar as the grant of that lease itself would be regarded not to have extinguished native title. But then s 23B(9B) would provide only illusory protection, as it would not protect native title from subsequent acts destructive of native title that are done in purported reliance upon the township lease. The only way to ensure that s 23B(9B) provides substantive protection of native title rights where they have been expressly protected is to adopt the wider interpretation of "under" contended for by the Applicant.

394    When such an interpretation is adopted, the public works, which were all constructed or established in reliance on one or several of the Township lease, the licences, and the plan of management, are acts done "under" the NPWC Act, s 8(1)(a)(i). It provides that the plan of management and the relevant provisions of the NPWC Act do not affect existing rights in land (and it is assumed for the immediate purposes, including native title). Thus, the public works fall within s 23B(9B) and are therefore not "PEP acts". Thus, it would be determined that the construction or establishment of public works did not extinguish native title.

395    However, as the starting premise does not apply, it is not appropriate to take that step.

Conclusion on public works

396    Given that I have concluded that the grant of sub-leases to non-Crown entities extinguished native title under the NTA, the only native title that the public works issues could affect is that native title existing over land that was not the subject of a sub-lease to a non-Crown entity. In relation to that native title that still exists over land the subject of a grant of a sub-lease to a Crown entity, it will be recalled that the non-extinguishment principle applies such that native title is suppressed but not extinguished.

397    In relation to public works, I have generally accepted the claims that the specified public works have, to the extent that non-exclusive native title continued to exist in that land, extinguished that native title by reason of being PEP Acts.

398    In some few circumstances, for the reasons I have given, the public works as claimed have not had that effect:

(1)    the underground water line to Kakadu National Park headquarters, because it is not established prior to 23 December 1996;

(2)    the asserted Scout Hall on Lot 2321, because it is not shown to have been constructed;

(3)    the Magela Creek sewage pipeline, because it is not a major earthwork;

(4)    Lot 871 adjacent to Lot 872, because its relationship to the townhouse is not established; and

(5)    the land in Lot 2317, other than an 8ha section of it adjacent to the Manaburduma Jabiru Town camp, because not all of it is shown to be “adjacent lands”.

399    I have made provisional orders in relation to the allotments adjacent to the Jabiru Drive and Arnhem Highway.

CONCLUSION

400    The consideration of the extent to which the native title rights of the Mirarr People have been extinguished over the Jabiru land is a complex one. It has required addressing the chronological sequence of events from European contact to the period after the commencement of the NTA.

401    The Mirarr People have been recognised as the traditional owners of the land, but it is the consequence ultimately ending in the relatively small area within their traditional country where Jabiru has been established which is in issue.

402    As the reasons above show, in my view each of the subleases granted pursuant to cl 2(2) of the Jabiru Town Lease by the JDT Authority, save for the Crown sub-leases, which do not come within the proviso in s 23B(9C)(b) of the NTA, extinguished the non-exclusive native title in the areas of those leases from the dates referred to. In respect of the leases granted before 23 December 1996, that extinguishment occurred at the time of the grant, rather than at the time of its registration. In respect of the leases granted after 23 December 1996, but said to have commenced retrospectively from an earlier date, that extinguishment took place at the time of the grant itself and not at the time from which the grant retrospectively dates the commencement of the entitlement.

403    The Crown sub-leases as Category D past or intermediate period acts did not extinguish native title, but to the extent that the activities undertaken pursuant to them adversely affect the enjoyment of the non-exclusive native title over these areas, that enjoyment of the native title is suppressed and the non-extinguishment principal applies so long as that activity (generally a structure) exists but it may ultimately revive.

404    The Territory argued that, in any event the mostly undisputed public works over the Jabiru land have extinguished any native title rights which survived the cascading sequence of events leading up to the Township Lease and the various sub-leases. That proposition, in general terms, was accepted by the Applicant, save for limited specific areas of dispute, which are addressed above. The conclusions on the extinguishing effect of the public works are set out in [398] above.

405    The parties and their advisers are commenced for having reached the degree of consensus in relation to the various issues recorded in these reasons for judgment. The areas of residual dispute, particularly on extinguishment, were narrow. The parties had requested some quite lengthy periods to complete their negotiations. The number of instruments and transactions required to be considered was very extensive. That is demonstrated by the thorough and detailed analysis contained in the submissions on the residual areas of dispute.

406    There will be declaratory orders to give effect to these reasons for judgment. For the purposes of better understanding them, I record that the subleases by the Jabiru Town Development Authority to non-Crown entities are set out in Table A to the Applicant’s Note on “Findings on Extinguishment Sought by the Respondents on Sub-Leases and Public Works” dated 26 April 2013 (the Applicant’s 26 April 2013 Note) consistently with the identification of those sub-leases by the Territory Respondents (see the Territory Respondents’ Submissions on Extinguishment at [137] ff and the Commonwealth Respondent’s Submissions of 9 November 2009; the subleases to Crown entities are set out in Table B to the Applicant’s 26 April 2013 Note consistently with the identification of those subleases by the Territory Respondents and the Commonwealth Respondents as noted above; and the Public Works are set out in Table C to the Applicant’s 26 April 2013 Note consistently with the identification of the Public Works in the Territory Respondent’s Outline of Submissions on Public Works of 26 September 2012 and in the Commonwealth Respondent’s Submissions on Public Works of 1 October 2012.

Associate:

Dated:    24 August 2016

SCHEDULE OF PARTIES