FEDERAL COURT OF AUSTRALIA

Fulton on behalf of the Mambali Amaling-Gan v Northern Territory of Australia (the Minyerri and Banka Banka Matters) [2019] FCA 2156

ORDERS

THE COURT ORDERS THAT:

1.    The parties in each subgroup confer with a view to providing revised minutes of the Determinations to reflect the rulings in these reasons for judgment.

2.    The matters in each subgroup are referred to a Case Management Conference before a Registrar at a date and time to be fixed by the Registrar with a view to finalising the Determinations and the arrangements for the Determinations.

3.    There be liberty to the parties to apply.

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

REASONS FOR JUDGMENT

WHITE J

1    The parties to applications for determinations of native title under the Native Title Act 1993 (Cth) (the NT Act) over several pastoral leases in the Northern Territory have agreed on most of the terms for the determinations. However, they have been unable to agree on four principal matters. The Court is asked to determine those matters on the basis that, once determined, each application will proceed to a consent determination.

The applications and the parties

2    There are two groups of applications. The first is known as the Minyerri Subgroup and comprises eight actions: NTD20/2013 (Nutwood Downs Pastoral Lease), NTD21/2013 (Hodgson River Pastoral Lease), NTD18/2016 (Lorella #2 Pastoral Lease), NTD21/2016 (Billengarrah #2 Pastoral Lease), NTD43/2017 (Nathan River Pastoral Lease), NTD6016/2000 (Lorella Downs), NTD6031/2002 (Lorella/Nathan River), and NTD6030/2000 (Billengarrah). The last three of these applications are known as “polygon claims”, because the areas in respect of which they seek a determination of native title correspond to the irregular shaped areas of mineral leases. The remaining actions correspond with the areas of the named pastoral leases and overlap the areas of the polygon claims. It is expected that the three polygon claims will be discontinued before the determinations of native title are made in respect of the remaining five claims.

3    The second group is known as the Banka Banka Subgroup, and comprises seven actions: NTD32/2011 (Helen Springs Pastoral Lease), NTD60/2017 (Banka Banka East Pastoral Lease), NTD61/2017 (Banka Banka West Pastoral Lease), NTD1/2018 (Powell Creek Pastoral Lease), NTD6005/2001 (Banka Banka), NTD6038/2001 (Powell Creek) and NTD6040/2001 (Helen Springs). The last three applications are polygon claims and they too will be discontinued before the determinations are made in the other actions.

4    The applicants in each action are represented by solicitors employed by the Northern Land Council (the NLC). The Northern Territory of Australia (the Northern Territory) is the first respondent to each action.

5    The second respondent to NTD20/2013 (Nutwood Downs Pastoral Lease) is Lexcray Pty Ltd (Lexcray), the holder of the pastoral lease over Nutwood Downs.

6    The Northern Territory Cattlemen’s Association (the NTCA) and Jam Pastoral Pty Ltd were granted leave to intervene in all of the Minyerri Subgroup matters. They had common representation with Maximus No 82 Pty Ltd (Maximus), which is a respondent to NTD6016/2000 (Lorella Downs), NTD6031/2002 (Lorella/Nathan River), NTD6030/2000 (Billengarrah) and NTD18/2016 (Lorella #2). Maximus also intervened in the other Minyerri Subgroup matters. I will refer to NTCA, Jam Pastoral and Maximus collectively as “the Pastoral Interests”.

7    In these reasons, I will, when referring to the Northern Territory, the Pastoral Interests and Lexcray collectively, describe them as “the respondents”.

8    The Central Land Council and the Ngalyia Aboriginal Corporation RNTBC were granted leave to intervene in the hearing. I will refer to these two entities collectively as “the CLC Interveners”. Ngalyia is the Registered Native Title Body Corporate for the native title area encompassed by the Mount Doreen Pastoral Lease in the Central Desert Region of the Northern Territory. It is also the applicant in an as yet undetermined application for revision of a native title determination.

9    Armour Energy Ltd, which is a respondent to NTD18/2016 (Lorella #2 Pastoral Lease) and NTD21/2016 (Billengarrah #2 Pastoral Lease), Energia Minerals Ltd, which is a respondent to NTD18/2016 (Lorella #2 Pastoral Lease), Imperial Oil & Gas Pty Ltd, which is a respondent to NTD43/2017 (Nathan River), Landmark Developments Pty Ltd, which is a respondent to NTD6016/2000 (Lorella Downs) and NTD6031/2002 (Lorella/Nathan River), The Amateur Fisherman’s Association of the Northern Territory, which is a respondent to NTD6031/2002 (Lorella/Nathan River), Telstra Corporation Limited, which is a respondent to NTD32/2011 (Helen Springs Pastoral Lease), NTD6038/2001 (Powell Creek) and NTD6040/2001 (Helen Springs), APT Pipelines Pty Ltd, which is a respondent to NTD1/2013 (Powell Creek Pastoral Lease), Consolidated Pastoral Company Pty Ltd, which is a respondent to NTD1/2018 (Powell Creek Pastoral Lease), NTD6038/2001 (Powell Creek) and NTD6040/2001 (Helen Springs), OM (Manganese) Ltd, which is a respondent to NTD60/2017 (Banka Banka East Pastoral Lease), and NTD61/2017 (Banka Banka West Pastoral Lease) and NT Gas Pty Ltd, which is a respondent to NTD6038/2001 (Powell Creek) and NTD6040/2001 (Helen Springs), did not seek to be heard on the matters about which the parties are not agreed.

10    There have been extensive discussions between the NLC on behalf of each of the applicants, the Northern Territory, the NTCA and some of the individual pastoral leaseholders regarding the proposed determinations. As indicated, those discussions have resulted in agreement on most of the terms of the proposed determinations.

11    The form of the determination proposed by the applicants for each determination comprises 16 clauses. The form of the determination proposed by the respondents comprises 17 clauses. The difference arises because the respondents propose the inclusion of a clause (cl 14 in their proposals) setting out a non-exhaustive list of activities authorised by the native title rights and interests determined in each application. The applicants oppose the inclusion of this clause.

12    The differences between the parties are:

(a)    whether a reservation of a liberty to apply should be included in cl 5(a) and, if so, its scope and its wording;

(b)    the wording of cl 11(c)(ii)C with respect to the exclusion of a right to take animals which are the private or personal property of another;

(c)    whether cl 14 of the determination should include a non-exhaustive list of activities permitted by the native title rights and interests and if so, whether, and in what terms, the activity with respect to the lighting of fires should be expressed; and

(d)    the manner in which the other interests to which s 225(c) of the NT Act refers are to be expressed.

13    It is convenient to address separately the matters about which the parties are in disagreement, albeit not in the order of the paragraph numbers in the determination which gave rise to them.

Clause 11(c) – The animals issue

14    Clauses 9-13 are concerned with the identification of the native title rights and interests (NTRI) in the proposed determinations. Clauses 9 and 10, about which the parties are agreed, provide as follows:

9.    The native title rights and interests of the estate group members referred to in clause 5 in relation to those parts of the Determination Area identified in Schedule C, being an area/s where there has been partial extinguishment of native title, are the rights:

(a)    to access, remain on and use the areas;

(b)    to access and to take for any purpose the resources of areas; and

(c)    to protect places, areas and things of traditional significance.

10.    The native rights and interests of the estate group members referred to in clause 7 above in relation to those parts of the Determination Area identified in Schedule C, being an area/s where there has been partial extinguishment of native title, are the rights:

(a)    to access, remain on and use the areas; and

(b)    to access the resources of the areas.

15    After some revision before and during the hearing, the applicants, the Northern Territory and Lexcray propose that cl 11 provide:

11.    The native title rights and interests do not confer on the native title holders:

(a)    possession, occupation, use and enjoyment of those parts of the Determination Area identified in Schedule C to the exclusion of all others;

(b)    any right to control access to and use of those parts of the land and waters of the areas or their resources;

   (c)    any right to access or take:

…

(ii)    resources that are the private or personal property of another, including but not limited to:

…

C.    animals, including stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animal, that are the private or personal property of another; and

D.    plants, crops and grasses that are the private or personal property of another.

16    The Pastoral Interests propose that cl 11(c)(ii)C. be in slightly different form, namely:

C.    animals that are the private or personal property of another, including stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animal, and

17    Apart from submitting that cl 11(c)(ii)C as originally proposed appeared “inappropriate”, the CLC Interveners did not make any submission concerning this subclause.

18    The differences in the respective proposals concern only the wording of cl 11(c)(ii)C. Those differences are minor. The applicants wish there to be a recognition in the determinations that there may be some animals present on the area of a pastoral lease in which they have an interest. Wild native animals are an example – see State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward HCA) at [194]; Neowarra v State of Western Australia [2003] FCA 1402 at [505] (Sundberg J). The applicants seek to have the proposed determinations make this plain by indicating that the exclusion of their interest in animal resources is limited to those which are the private or personal property of another. At the same time, they recognise that their NTRI are not to include rights with respect to “stock” as defined in the Pastoral Land Act 1992 (NT) and the progeny of such stock.

19    The term “stock” is defined in s 3 of the Pastoral Land Act:

stock means a species of animal permitted by or under this Act or the terms of a pastoral lease to be pastured on pastoral land as part of the pastoral enterprise under the lease.

20    Regulation 6 of the Pastoral Land Regulations 1992 (NT) made under the Pastoral Land Act provides:

In every pastoral lease, unless otherwise provided in the lease, stock includes beef cattle, buffaloes, horses, donkeys, mules or camels which are not in a feral state.

21    The term “feral state” used in Reg 6 is not defined. However, s 3 of the Pastoral Land Act defines “feral animal” as “an animal of a kind introduced into Australia since 1787 that is living in a wild state”.

22    The Pastoral Interests advanced two submissions in support of their alternative formulation. First, they submitted that the ordering of the terms in its proposed clause indicated clearly that “stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animal” are a subset of animals which are the private or personal property of another and thereby made clearer the intention that there be no NTRI with respect to animals which are private property. Secondly, the Pastoral Interests referred to the desirability of there being consistency in drafting style. For this purpose, they submitted that their formulation has the advantage of adopting a similar drafting technique as is used in cl 11(c)(ii)D.

23    I do not regard either of these considerations as persuasive. In my view, either formulation indicates that the term “animals” in cl 11(c)(ii)C includes stock as defined and the progeny of such stock provided that the stock and its progeny be the “private or personal property” of another. I do not agree that the different composition of the clause alters the meaning. Nor am I able to discern a relevant difference in drafting style.

24    In my view, the wording proposed by the applicants, the Northern Territory and Lexcray indicates that the NTRI will not include the right to access or take animals which are the private or personal property of another and those animals include stock within the meaning of the Pastoral Land Act and the progeny of any such animal.

25    It is possible that there is some unnecessary surplusage in the expression “the private or personal property of another” given that these words are also in the chapeau to cl 11(c)(ii). However, no party or intervener critiqued the proposed clause on that account.

26    I am satisfied that the formulation of cl 11(c)(ii)C proposed by the applicants, the Northern Territory and Lexcray is appropriate and will adopt it.

Clause 14 – The list of activities issue

27    This issue concerns the form of expression of the NTRI in the determinations.

28    In the form of the determinations proposed by the applicants, the NTRI are identified in cll 9-13 inclusive. Clauses 9 and 10 and relevant parts of cl 11 have been set out earlier in these reasons. Clause 12 provides:

12.    The native title rights and interests are subject to and exercisable in accordance with:

   (a)    the traditional laws and customs of the native title holders; and

(b)    the laws of the Northern Territory of Australia and the Commonwealth of Australia.

29    Clause 13 provides that there are no NTRI in minerals, petroleum and in certain prescribed substances.

30    The respondents propose an additional clause (cl 14) containing a non-exhaustive list of activities permitted by the NTRI identified in cll 9-13:

14.    Without limiting the native title rights and interests described in clauses 9 to 13 in any way, and without purporting to exhaustively describe the activities which those rights authorise or permit, the rights and interests referred to in clauses (sic) 9 enable the estate group members referred to in clause 5 to:

   (a)    travel over, move about and access the land and waters;

   (b)    hunt and fish on the land and waters;

(c)    live and camp on the areas, and to erect shelters and other structures on the land and waters;

  (d)    light fires on the land and waters;

(e)    conduct and participate in the following activities on the land and waters:

    (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 those areas that are of traditional significance;

(f)    maintain and protect sites and places on those areas that are of traditional significance;

(g)    be accompanied onto the land and waters 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 land and waters;

(ii)    people who have rights in relation to the land and waters according to the traditional laws and customs acknowledged by the estate group members; and

(iii)    people required by the estate group members to assist in, observe, or record traditional activities on the land and waters.

31    Lexcray supports the Northern Territory’s proposal save for one exception. It proposes that cl 14(d) should in addition have the underlined words:

(d)    light fires on the land and waters for domestic purposes and not for the clearance of vegetation.

32    Clause 14 as ultimately proposed by the Pastoral Interests is as follows:

14.    Without limiting the native title rights and interests described in clauses 9 to 13 in any way, and without purporting to exhaustively describe the activities which those rights authorise or permit, the rights and interests referred to in clauses (sic) 9 enable the estate group members referred to in clause 5 to:

   (a)    travel over, move about and access those areas;

   (b)    hunt and fish on the land and waters of those areas;

(c)    live and camp on the areas, and to erect shelters and other structures on those areas;

   (d)    conduct and participate in the following activities on those areas:

   (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 those areas that are of traditional significance;

(e)    maintain and protect sites and places on those areas that are of traditional significance;

(f)    be accompanied onto those areas 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 areas;

(ii)    people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; and

(iii)    people required by the estate group members to assist in, observe, or record traditional activities on the areas.

33    The underlining indicates the differences between the Pastoral Interests’ proposal and that of the Northern Territory. As is apparent, apart from the use of the term “areas” instead of the term “land and waters”, the substantive difference between the two proposals lies in the inclusion and wording of cl 14(d) concerning the lighting of fires. The Pastoral Interests do not propose that there be a subclause concerning the lighting of fires at all, but said that if such a subclause is to be included, they have a “preference” for Lexcray’s terminology over that of the Northern Territory.

34    The applicants oppose altogether the inclusion of a list of activities of the kind proposed by the respondents in cl 14. They contend that the inclusion of such a list is unnecessary and creates potential for confusion.

35    The CLC Interveners did not make any submissions explicitly directed to the proposed cl 14. Some of the submissions which they made on other issues were capable, at a level of generality, of bearing on the issues to which the proposed clause gives rise.

36    No party or intervener suggested that the use of the term “land and waters” rather than “areas” was a matter of any consequence. However, s 225 of the NT Act uses the term “determination area” to describe an area of land or waters, which suggests that the term “area” may be preferable.

37    Putting that issue to one side, there are two principal issues with respect to cl 14: first, whether the determination should include a non-exhaustive list of activities encompassed by the NTRI and, secondly, if so, whether, and in what terms, the activity with respect to the lighting of fires is to be expressed.

Should a non-exhaustive list of activities be included?

The submissions of the respondents

38    The respondents seek the inclusion in the determination of a non-exhaustive list of activities permitted by the NTRI in consequence of their agreement to cll 9 to 13 in the terms proposed by the applicants. The wording of those clauses is a departure from the formulation of the NTRI expressed in King v Northern Territory of Australia [2007] FCA 1498 (Newcastle Waters), which has been followed since 2007 in all but a small number of native title determinations over pastoral leases in the Northern Territory.

39    The Newcastle Waters formulation of the NTRI is as follows:

9.    In relation to the non-exclusive areas, the native title rights and interests in the estate group members that are possessed under their traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, non-exclusive rights to use and enjoy those areas being:

(a)    the right to travel over, to move about and to have access to those areas;

   (b)    the right to hunt and to fish on the land and waters of those areas;

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

(d)    the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease 1074 or Perpetual Pastoral Lease 947;

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

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

(g)    the right to conduct and to participate in the following activities on those areas:

   (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 those areas that are of significance under their traditional laws and customs;

(h)    the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs;

(i)    the right to share or exchange subsistence and other traditional resources obtained on or from those areas;

(j)    the right to be accompanied on to those areas 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 areas;

(ii)    people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members;

(iii)    people required by the estate group members to assist in, observe, or record traditional activities on the areas;

(k)    the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof.

These native title rights and interests do not confer on the estate group members possession, occupation, use and enjoyment of the non-exclusive areas, to the exclusion of all others.

40    The Northern Territory submitted, and the applicants did not dispute, that terms identical or substantially identical to the Newcastle Waters formulation of NTRI have been adopted in some 86 subsequent determinations of native title over the areas of pastoral leases in the Northern Territory. The Court was told that it is “significant developments” in the jurisprudence since the formation of the NTRI in Newcastle Waters which had provided the impetus for the change in approach.

41    As is apparent, the expression of the NTRI in cll 9 and 10 in the proposed determinations is much more general than the Newcastle Waters formulation. In particular, the expression of the NTRI as rights to “access” and to “use” the areas the subject of the determination is to express those rights very generally.

42    The respondents advanced the following matters in support of the inclusion of the non-exhaustive list of permitted activities:

(a)    the inclusion of the list will be of benefit to the native title holders as it will put beyond doubt that their determined NTRI permit, at the least, the named activities. The benefit of such a list in providing certainty is reflected in the widespread use of the Newcastle Waters formulation in determinations of native title over pastoral leases;

(b)    as the manner of expression of the list is “non-limiting and non-exhaustive”, the proposed cl 14 can have no adverse effect on the applicants’ NTRI;

(c)    in the negotiation of the terms of the proposed determinations, the respondents had conceded a matter sought by the applicants, namely, the manner of expression of the NTRI, despite its departure from the Newcastle Waters formulation. The Northern Territory submitted that, in that circumstance, it would be “reasonable”, as part of the quid pro quo, for the determinations to include a matter sought by the respondents. In support of the submission, counsel referred to the public interest in parties negotiating the resolution of their differences and in doing so by making mutual compromises: Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26];

(d)    the additional certainty which the list would provide is especially important given the departure from the Newcastle Waters formulation of the NTRI and the certainty which it afforded in the context of the co-existence of rights;

(e)    as the determination will bind not only the present parties but also successors in title and, to the extent that it is a judgment in rem, third parties, there is value in setting out in a formal publicly available document matters which afford greater certainty. The Northern Territory emphasised in this respect its function in ensuring that the terms of determinations reflect the interests of the broader Northern Territory community; and

(f)    the inclusion of a non-exhaustive list of activities is consistent with the trend in other places, in particular Western Australia, with respect to determinations recognising rights of a broadly expressed kind including such lists. The Northern Territory referred to the form of the determination made by the Full Court in Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 2) [2010] FCAFC 99; (2010) 272 ALR 97 and to 16 consent determinations made in respect of pastoral lease areas in Western Australia.

43    Lexcray also supported in the inclusion of the non-limiting and non-exhaustive list based on the Newcastle Waters formulation. It emphasised that the Newcastle Waters formulation had been made to deal with the relationship between NTRI of the native title holders, on the one hand, and the rights of pastoralists under pastoral leases, on the other; and submitted that the Newcastle Waters formulation made clear the scope of the NTRI, and the inclusion of the non-exhaustive list would reduce the potential for future litigation concerning the extent of the NTRI, and provided a basis for “peaceable coexistence” of native title holders and pastoralists. However, despite its expressed preference for a Newcastle Waters like formulation, Lexcray did not seek to resile from its agreement to cll 9 and 10 in the determination concerning Nutwood Downs.

44    While the public interest in parties resolving their disputes by agreement is an important matter, I indicate now that I do not regard the Territory’s appeal to the perceptions of “fairness” or “reasonableness” based on the concessions in the parties’ negotiations as providing a principled basis for the resolution of the remaining differences between the parties. In any event, an attempt by the Court to evaluate the extent and significance of concessions is likely to be a fraught exercise, and one which would distract attention from matters which are properly to be considered.

The submissions of the applicants

45    The applicants referred to a number of determinations of native title expressing the NTRI in the manner set out in cl 9 of the proposed determinations. These include the determinations in Akiba (on behalf of the Torres Strait Islanders of Regional Seas Claim Group) v State of Queensland (No 2) [2010] FCA 643, (2010) 204 FCR 1 (Finn J); Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293 at cl 3 of the Determination (McKerracher J); BP (deceased) on behalf of the Birriliburu People v State of Western Australia [2016] FCA 671 at cl 3 of the Determination (North J); Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 (McKerracher J); Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908 at cl 11 (Mansfield J); Narrier v State of Western Australia [2016] FCA 1519 (Mortimer J); and Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 (North J). The applicants emphasised that a number of these determinations were made after contested hearings and that some (Murray, Narrier and Manado) related to areas which included pastoral leases.

46    As I understood the submission, these decisions constituted the “developments” in the jurisprudence to which the applicants referred.

47    Secondly, the applicants submitted that the fact that the list of activities is non-exhaustive and non-limiting made its inclusion of doubtful utility.

48    Thirdly, the applicants noted that, while the list proposed by the respondents was in part derived from the Newcastle Waters’ list, it was not the complete Newcastle Wasters’ list. In particular, it did not include rights (c), (d), (i) and (k). Those rights are as follows:

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

(d)    the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease 1074 or Perpetual Pastoral Lease 947;

(i)    the right to share or exchange subsistence and other traditional resources obtained on or from those areas;

(k)    the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof.

49    As part of this submission, the applicants characterised the proposed non-exhaustive list of activities as “unbalanced” and as not conveying the “feel” of the NTRI which are recognised.

50    Finally, the applicants submitted that the inclusion of the non-exhaustive list may result in persons being misled as to the nature and extent of the recognised NTRI, because some may understand the inclusion of the list to indicate that the NTRI under the determination are, in substance, the same as the Newcastle Waters rights.

51    The overriding submission of the applicants was that it was for the respondents and interveners to demonstrate good reason for the inclusion of their proposed cl 14.

Consideration

52    The appropriate starting point is s 225 of the NT Act which defines the term “determination of native title”. It provides:

225 Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

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

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

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

53    The expression “native title rights and interests” is defined in s 223 which provides (relevantly):

Common law rights and interests

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

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

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

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

Hunting, gathering and fishing covered

(2)    Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

…

54    Thus, a determination of native title is a determination of the rights defined in the NT Act: Ward HCA at [16].

55    It was common ground that each of the pastoral leases which will be the subject of the proposed determinations is a non-exclusive pastoral lease to which s 225(e) refers – see ss 248A and 248B of the NT Act. Accordingly, s 225(e) has no operation presently.

56    Section 94A of the NT Act requires that a determination of native title set out details of the matters mentioned in s 225 of the NT Act.

57    The combined effect of ss 94A, 223 and 225 is that a determination of native title should contain not only the matters specified in s 225 but also the “details” of those matters. Relevantly for present purposes, that requires a determination to contain details of the nature and extent of the NTRI in the determination area. It is details of the NTRI which are to be specified: not details of the activities which native title holders may engage in the exercise of those NTRI.

58    The distinction between the existence of a native title right, on the one hand, and the manner of its exercise, on the other, is well established. In Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422 at [84], Gleeson CJ, Gummow and Hayne JJ said:

[T]he exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise …

59    In Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33; (2013) 250 CLR 209, both the minority (French CJ and Crennan J) at [25]-[29] and the majority (Hayne, Kiefel and Bell JJ) distinguished between the activities permitted by the NTRI and the NTRI themselves, with the effect that certain activities could be prohibited without the NTRI themselves being extinguished. The majority confirmed, at [59], that NTRI may properly be seen as a bundle of rights, the separate components of which may be extinguished separately. Their Honours also said, at [67]-[68], that focussing on the activity described in a particular way rather than upon the relevant native title right may be apt to mislead:

[67]    Focusing upon the activity described as "taking fish and other aquatic life for sale or trade", rather than focusing upon the relevant native title right, was apt to, and in this case did, lead to error. That shift of focus, from right to activity, led to error in this case by inferentially reframing the question determinative of extinguishment as being whether the statutory prohibition against fishing for a particular purpose without a licence was inconsistent with the continued existence of a native title right to fish for that purpose. But the relevant native title right that was found in this case was a right to take resources for any purpose. No distinct or separate native title right to take fish for sale or trade was found. The prohibition of taking fish for sale or trade without a licence regulated the exercise of the native title right by prohibiting its exercise for some, but not all, purposes without a licence. It did not extinguish the right to any extent.

[68]    The Full Court's focus upon a particular activity was not consistent with the plurality's observation in Ward that reference to activity "is relevant only to the extent that it focuses attention upon the right" …

(Emphasis in the original and citation omitted)

60    The distinction between NTRI and their exercise was also made plain in State of Western Australia v Brown [2014] HCA 8; (2014) 253 CLR 507 in which it was confirmed, at [34], that the identification of the rights requires an objective ascertainment of the legal nature and content of the respective rights; that the nature and content of a right is not ascertained by reference to the way in which it has been, or will be exercised: ibid; and that consideration of the way in which a right has been exercised is relevant only in so far as it assists the correct identification of the nature and context of the right: ibid.

61    The distinction between NTRI and the activities in which native title holders may engage in their exercise was also observed by McKerracher J throughout his decision in Murray, including at [504], [510], [681] and [685], but I did not understand the applicants to contend that his Honour had addressed the issue presently before the Court.

62    Moreover, I do not understand the issue to have been addressed by Mansfield J in Borroloola or by Mortimer J in Narrier. The remaining matters to which the applicants referred to as emanating from or evidencing developments in the jurisprudence were consent determinations which are of some, but limited, assistance in the present context. Further, unlike the present applications, two (Murray and Birriliburu) concerned the determination of native title rights which were exclusive.

63    In my view, the distinction between the right and the manner of its exercise does not of itself indicate that the proposed cl 14 is unnecessary or inappropriate. That is particularly so when there is close coincidence between the identification of the right and its exercise.

64    Some authorities indicate the inappropriateness of attempts to particularise NTRI in determinations of native title in ways which do not reflect the determined rights and interests. The course of the decisions in Sampi provides an example. At first instance (Sampi v State of Western Australia [2005] FCA 777), French J, having found that the NTRI of the claimants in respect of unallocated Crown Land and certain other lands were exclusive, declined to express those rights as rights of “possession, occupation, use and enjoyment” of the land and continued:

[1072]    The reference to ‘use and enjoyment’ in the context of exclusivity is, in my opinion, too widely stated and could pick up a variety of rights not contemplated by traditional law and custom. Use and enjoyment rights are, best defined more specifically. The right to possess and occupy as against the whole world carries with it the right to make decisions about access to and use of the land by others. The right to speak for land and to make decisions about its use and enjoyment by others is also subsumed in that global right of exclusive occupation.

(Emphasis added)

65    His Honour then went on to list, in a non-exhaustive fashion, particular NTRI which he had found established on the evidence.

66    However, on appeal (Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26), North and Mansfield JJ warned against attempts to identify NTRI with greater precision than is expressed in the formulation of those rights and interests under the laws and customs of the claimant people:

[120]    To require a greater precision than is expressed in the formulation of the rights or interests under the laws or customs of the Aboriginal people is to fail to recognise the rights or interests which arise under that law. Once the statutory requirements for the recognition of native title are established, there is no warrant for limiting the rights and interests by adding a gloss to the statutory requirements in the form of a stipulation for a particular level of precision in the articulation of the rights or interests.

67    With respect to the rejection by French J of the inclusion of the words “use and enjoyment”, North and Mansfield JJ said:

[153]    We agree with the submission of the State that the words “use and enjoyment” do not add anything to the rights of possession and occupation. The right to use and enjoy the land is implicit in the right to possess and occupy the land. But that does not mean that the use of the expanded phrase is without a purpose. The additional words make explicit what is implicit. In so doing they serve to express the right without expanding its scope. This explains why the Court has in so many cases used this phrase as the usual description for such rights. There is a value in consistent usage in the cases to reflect the same rights. The primary judge, however, departed from the usual usage because he regarded the words “use and enjoyment” as potentially picking up a variety of rights not contemplated by traditional law and custom. Such rights were not identified and we are unable to determine what such rights might be. Consequently, the determination should describe the right to exclusive possession by including reference to “use and enjoyment”.

68    The determination made by North and Mansfield JJ to give effect to their reasons in Sampi expressed the relevant NTRI of the claimant group as “the right of possession, occupation, use and enjoyment of that part as against the whole world, including the following rights” which was then followed by a list of some seven individual rights. As noted earlier, the respondents relied on the approach in Sampi to indicate the appropriateness of their proposed cl 14.

69    However, there are several authorities which indicate that, at least in cases like the present involving areas covered by pastoral leases in which the NTRI do not confer rights of possession, occupation, use and enjoyment to the exclusion of others, it is preferable for the determined rights to be expressed by reference to the activities which may be conducted as of right in relation to the land and waters. In State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (Ward FCA), Beaumont and von Doussa JJ said:

[205]    The degree of specificity required in a determination will depend upon the nature and extent of the native title rights and interests, and is likely to vary from case to case, depending upon the evidence …

…

[210]    In cases where the evidence establishes that the nature and extent of rights and interests in relation to land enjoyed by an indigenous group are less than an exclusive right to possess, occupy, use and enjoy the land, it will be necessary to sufficiently identify them. If the rights held are, for example, limited to rights to fish or hunt in certain areas (rights perhaps limited to certain species of animal), or for a particular purpose, or limited to a right merely to pass over land, then the description of the right might most conveniently be expressed by describing the activity or activities which the right permits …

70    On appeal (State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1), Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

[51]    A determination of native title must comply with the requirements of s 225. In particular, it must state the nature and extent of the native title rights and interests in relation to the determination area. Where, as was the case here in relation to some parts of the claim area, native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.

[52]    It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead. Rather, as the form of the Ward claimants' statement of alleged rights might suggest, it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.

(Emphasis in the original in [51], emphasis added in [52] and citation omitted)

71    On the other hand, in his separate reasons in Ward HCA, Kirby J seemed to deprecate the specification of NTRI by a list of activities:

[570]    In native title determinations, I agree that the specification of the rights and interests will be necessary to determine their "relationship" with other interests in the area and possible inconsistencies with those other interests. However, I do not agree that recognition of native title rights and interests should be unduly narrowed for this purpose. The object of the NTA is the recognition of "native title", rather than the provision of a list of activities permitted on, or in relation to, areas of land or waters the subject of a claim to native title. As was stated in Mabo [No 2] and incorporated into the NTA, native title involves the recognition, by the laws of Australia, of the traditional rights and interests of Australia's original peoples.

(Citation omitted)

72    On the remittal to this Court for further hearing and determination of the underlying applications giving rise to the appeal to the High Court in Ward HCA, the Full Court (Wilcox, North and Weinberg JJ) rejected a submission that s 225(b) was satisfied by the reference in the proposed determination to “non-exclusive rights to occupy use and enjoy the land and waters in accordance with their traditional laws and customs” – see Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; (2003) 134 FCR 16. Their Honours said:

[21]    We cannot agree with this approach. A statement about the right to ‘occupy, use and enjoy’ (or merely ‘use and enjoy’) in accordance with traditional laws and customs conveys no information as to the nature and extent of the relevant rights and interests. It is equivalent to a statement that the holders of the traditional rights and interests are entitled to exercise their traditional rights and interests. Something more is obviously required. There must be a specification of the content of the relevant rights and interests. That is why the parties included sub-clauses (a) to (e). It is to those sub-clauses that a reader may look in considering the effect of the determination. They must exhaustively indicate the determined incidents of the right to use and enjoy.

(Emphasis added)

73    In his separate judgment in State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186; (2015) 239 FCR 175, Barker J said:

[128]    In Australia, unlike the position in Canada, it has been recognised since Mabo v State of Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 that indigenous title is not a broad beneficial use right in land and waters held by a claimant group, but comprises those particular rights and interests which are shown to be possessed under the traditional laws and customs of the group. See, for example, Brennan J (with whom Mason CJ and McHugh J agreed) at 59-60 and 70; Deane and Gaudron JJ at 88-89; and Toohey J at 195.

74    Later, with reference to s 225 of the NT Act, Barker J said:

[136]    On the face of it, by para (b), particular rights and interests found to exist must be determined in order to determine their “nature and extent”; and also, as explained below, for extinguishment purposes, where that is relevant.

(Emphasis added)

75    As is apparent, the authorities to which I have referred in this review concern the question of the specification of the NTRI themselves by a list of activities, and not the inclusion of a non-exhaustive list of the activities permitted by the NTRI specified elsewhere in the determination. Furthermore, it can be taken that the present parties have agreed that the NTRI are appropriately specified in the manner set out in cll 9 and 10 of the proposed determinations.

76    Nevertheless, the review of the statutory provisions, the authorities and the matters to which the parties referred in their submissions leads me to conclude:

(a)    it is generally preferable for NTRI in determinations of native title of the present kind to be expressed by reference to the activities which may be conducted as of right on, or in relation to, the land or waters. It is by that means that effect is given to the requirement of s 94A that a determination set out “details” of the matters mentioned in s 225. As already noted, it is commonplace for determinations of native title in contexts like the present to include such lists;

(b)    the NT Act does not require a list of activities permitted by the determined NTRI to be included in a determination of native title when the NTRI may be expressed in more general terms but ss 94A and 225 do not preclude the inclusion of such a list; and

(c)    formulations of NTRI of the Newcastle Waters kind have considerable advantages and are generally consistent with the approach suggested by the majority in Ward HCA and Ward FCA as being appropriate. The approach set out in the decisions in Ward HCA and Ward FCA to which I have referred remains good law.

77    I accept the submission of the applicants that it is the respondents who have the persuasive burden of showing the appropriateness of inclusion of the non-exhaustive list. They are the parties who seek the inclusion of a clause about which the parties are disagreed.

78    In my view, the respondents have shown that the inclusion of the list of “non-limiting and non-exhaustive” rights is likely to have some advantages. Amongst other things, it will make it plain that there is agreement between the parties that the listed activities, at the least, are encompassed by the generally expressed NTRI and will limit the potential for future disputation about those activities. Moreover, I consider that there are no real disadvantages to the applicants by the inclusion of proposed cl 14. The fact that some determinations have been made over other areas in the form presently proposed by the applicants does not persuade me to the contrary, especially having regard to the force of the statement by the plurality in Ward HCA, set out earlier.

79    The Court and the parties should strive, so far as possible, to avoid the terms of a consent determination being misleading. However, in my view, both of the competing formulations involve some prospect that some persons may be misled. That cannot be avoided. I consider that the prospect of an ordinary reasonable reader of the determinations being misled or being uncertain about the nature of the NTRI will be less with the inclusion of the proposed cl 14 than by its exclusion.

80    I do not regard the applicants’ submissions concerning the “balance” or the “feel” of the list of activities as persuasive. I note, in any event, the expressed willingness of the Northern Territory to include in cl 14 the Newcastle Waters rights which are presently omitted from the cl 14 list.

81    Accordingly, I conclude that the determination should include the proposed cl 14.

Clause 14(d) – The lighting of fires issue

82    As already noted, the Northern Territory proposes that cl 14(d) authorises estate group members to “light fires on the land and waters” whereas Lexcray seeks the non-exhaustive expression of this right to indicate that it is available “for domestic purposes and not for the clearance of vegetation”.

83    The form proposed by Lexcray, and preferred by the Pastoral Interests in the event it is included, is the same as the corresponding right in the Newcastle Waters formulation. The Northern Territory submitted only that the form of its cl 14(d) is less restrictive.

84    Mr Dunbar, who is the Managing Director of Lexray, deposed in his affidavit to the following matters concerning fire management:

[60]    The prevention of uncontrolled fire on Nutwood Downs is of significant concern to Lexcray. The mention of deliberately lighting fire, albeit small camp fires, causes Lexcray concern in respect of the consequences of an uncontrolled fire.

[61]    An uncontrolled fire could easily burn out the entire leasehold area. This would be disastrous for Lexcray as it would have no natural fodder for its 25,000 to 30,000 head of cattle and would likely result in the significant loss of cattle due to injury or death.

[62]    While lighting of small camp fires for domestic purposes on Nutwood Downs is agreed to, any domestic fire would need to be controlled and lit in accordance with all Territory and Commonwealth legal obligations. For example, no fires could be lit during a period of total fire bans if the Northern Territory Government were to impose one or if there was an obvious likelihood a fire would spread such as in high wind conditions.

85    This evidence was not contested. I accept it. Moreover, there is no evidence before the Court to support the conclusion that this non-exhaustive expression of the right to light fires should be more generally expressed.

86    Accordingly, cl 14(d) will be in the form proposed by Lexcray.

Clause 15 – The “other interests” issue

87    There were a number of differences between the parties as to the way in which the proposed determinations should, as required by ss 94A and 225(c), specify “the nature and extent of any other interests in relation to the determination area”. In the form of the determinations proposed by the applicants, the “other interests” are identified in cl 14. In the form of the determinations proposed by the respondents, the “other interests” are defined in cl 15. The difference in the proposals of the parties centred on cl 14(a)/15(a).

88    The applicants propose that cl 14(a) provide:

14.    The nature and extent of other interests in relation to the Determination Area are the interests, created by the Crown or otherwise, as follows:

(a)    in relation to NT portion/s Insert, the rights and interests of the holder of Perpetual Pastoral Lease/Pastoral Lease No. X;

(b)    …

89    The counterpart clause in the form of the determinations proposed by the Northern Territory is as follows:

15.    The nature and extent of other interests in relation to the Determination Area are the interests, created by the Crown or otherwise, as follows:

(a)    in relation to NT portion/s Insert, the rights and interests of the holder of Perpetual Pastoral Lease/Pastoral Lease No. X, including:

(i)    rights and obligations of the lessee regarding management or use of feral animals, including any obligations regarding biosecurity;

(ii)    rights of the lessee to the use of any pastoral homestead or improvements and any adjacent land or waters the use of which is necessary for, or incidental to, that use;

(b)    …

90    The underlined words are those proposed by the Northern Territory which are additional to those proposed by the applicants.

91    After some revision during the hearing, the Pastoral Interests proposed that cl 15(a) of the determinations should be in the following form:

15.    The nature and extent of other interests in relation to the Determination Area are the interests, created by the Crown or otherwise, as follows:

(a)    in relation to NT portion/s Insert, the rights and interests of the holder of Insert name of pastoral lessee under Perpetual Pastoral Lease/Pastoral Lease No. X, including:

(i)    rights and obligations of [the] lessee regarding management or use of feral animals, including any obligations regarding biosecurity;

(ii)    rights of the lessee to the use or enjoyment of any pastoral homestead or improvements and any adjacent land or waters the use of which is necessary for, or incidental to, that use the use or enjoyment of that homestead or those improvements;

92    The words marked as deleted are those in the Northern Territory’s proposal which are not repeated in the Pastoral Interests’ proposal. The underlined words are additional words proposed by the Pastoral Interests.

93    Lexcray proposes that cl 15(a) provide as follows:

15.    The nature and extent of other interests in relation to the Determination Area are the interests, created by the Crown or otherwise, as follows:

(a)    in relation to NT portion/s Insert, the rights and interests of the holder of Perpetual Pastoral Lease/Pastoral Lease No. X, including:

(i)    rights and obligations of the lessee regarding management or use of feral animals including any obligations regarding biosecurity;

(ii)    rights of the lessee to the use and enjoyment of any pastoral homestead or improvements and any adjacent land or waters the use of which is necessary for, or incidental to, that use;

(iii)    rights and obligations of [insert name of pastoral lessee] regarding bushfire prevention, management and control;

(iv)    the maintenance of peace and tranquillity for those areas at GPS location 16:00’32.56S and 133:50’37.96E (being private familial burial places), including by not being walked upon, or otherwise intruded upon, by human beings;

94    The words shown as deleted in this formulation are words appearing in the proposal of the Northern Territory which are not repeated in Lexcray’s proposal. The underlined words are those which are additional to the formulation proposed by the Northern Territory. During the course of the hearing, the Pastoral Interests adopted the proposal of Lexcray contained in cl 15(a)(iii) concerning the prevention, management and control of bushfires.

95    As is apparent, the applicants propose that the other interests should be identified by reference only to the relevant portions and pastoral lease numbers. The respondents, on the other hand, propose the inclusion of additional “interests”, or incidents of such interests, in the specification of the “other interests”. The CLC Interveners support the applicants’ position.

96    At the hearing, the applicants adopted the submissions of the CLC Interveners with respect to the content of cl 15(a) proposed by the respondents. The Pastoral Interests adopted the submissions of the Northern Territory and Lexcray with respect to the proposed cll 15(a)(ii) and (iii).

97    Much of the debate at the hearing was directed to the proposed cl 15(a)(ii) concerning the pastoral homestead and improvements.

The submissions of the Northern Territory

98    The Northern Territory made the following submissions in support of its proposed subcll 15(a)(i) and (ii):

(i)    section 225(c) does not preclude a determination from specifying incidents of other rights or interests in the determination area. All forms of the proposed determinations do this with respect to the interest of Telstra – see cl 14(e) of the applicants’ proposed determination and cl 15(e) of the respondents’ proposed determination;

(ii)    in Alyawarr v Northern Territory of Australia [2004] FCA 472; (2004) 207 ALR 539 at [203], Mansfield J held, against the opposition of the Northern Territory, that reference to a leasehold interest should include a description of the statutory encumbrances or restrictions in the lease, and that those references were neither “unhelpful or inappropriate”;

(iii)    a number of consent determinations have included in the specification of other interests particular incidents of such interests. Counsel referred, by way of example, to the specification of particular incidents of the rights of energy providers or energy carriers with respect to rights of entry for the operation, protection and maintenance of infrastructure in Agius v State of South Australia (No 6) [2018] FCA 358 in cl 16(i) and in Coulthard v State of South Australia [2018] FCA 1993 in subcll 11(h), (i) and (k)-(n);

(iv)    as cll 15(a)(i) and (ii) are “evidently of significance” to the Pastoral Interests and Lexcray, they should be included in the absence of good reason to the contrary being shown. In effect, the Northern Territory submitted that it was for the applicants to persuade the Court that proposed cll 15(a)(i) and (ii) should not be included in the determinations;

(v)    the inclusion of cll 15(a)(i) and (ii) will assist in future in the achievement of consent resolution of applications for determination of native title in the Northern Territory, and thereby further the object of s 87 of the NT Act; and

(vi)    the parties are agreed on the inclusion of a reservation of the liberty to apply for the purposes of establishing the precise location and boundaries of the land or waters necessary for, or incidental to, the use of any pastoral homestead or improvements referred to in cl 15(a)(ii). That being so, cl 15(a)(ii) should be included.

99    These considerations are not persuasive and can be addressed quite shortly.

100    With respect to the first, the fact that a form of specification is not precluded does not provide a positive reason for its inclusion.

101    With respect to the second, the Northern Territory’s reliance on the passage in the reasons of Mansfield J in Alyawarr is misplaced. In that passage, Mansfield J was addressing the parties’ submissions concerning the provision giving effect to s 225(d) of the NT Act, that is, the clause addressing the inter-relationship between the NTRI and the specified other interests, and not the clause specifying, for the purposes of s 225(c), the nature and extent of the other interests in relation to the determination area.

102    With respect to the third, given the number of native title determinations being made, it is inevitable that there will be some variance in the drafting and composition of each. The presence of a particular provision in one determination does not reduce the need for its inclusion to be justified in another when that inclusion is challenged.

103    With respect to the fourth, it is for those contending for the inclusion of a provision to justify its inclusion. There is no reverse onus.

104    With respect to the fifth consideration, the issue should be resolved by reference to the positions of the present parties.

105    The sixth matter mentioned by the Northern Territory is in the nature of a “tail wagging the dog” submission. The fate of the proposed “liberty to apply” in cl 5(a) should depend on the fate of cl 15(a)(ii), not vice versa.

Lexcray’s submissions

106    Lexcray commenced with what it accepted was a “bold” submission. This was that its right under its pastoral lease (Pastoral Lease No. 526) over Nutwood Downs to erect improvements on Nutwood Downs and especially a homestead, together with its exercise of that right, had had the effect of extinguishing native title altogether. Lexcray did not contend that native title had been extinguished over the whole of the area of Nutwood Downs: its submission principally focused on the homestead and other improvements it has erected, including sheds, stockyards and bores.

107    Lexcray made the following submission:

The grant of a lease for a pastoral holding which, because of its size and nature, requires the construction and use of dwellings, carries with it an inconsistency of a particular kind with the [NTRI]. Pastoral improvements such as sheds and stockyards are of course less personal by their nature but the right to erect them is part and parcel of the grant of a pastoral lease, being things which, inherently, further the use of the leased land for the (granted) pastoral purpose. The contest … between the two sets of rights: [NTRI] on the one hand and those granted by the Lease [on the other, is] to be resolved in favour of the latter, being rights granted by the Crown Lands Ordinance and later the Pastoral Land Act. This is not a case merely of the exercise of the rights being inconsistent … It is the grant here of the rights under the Lease that gives[s] rise to an inconsistency.

(Emphasis in the original)

108    As part of this submission, Lexcray emphasised “the centrality of the pastoral purpose” in the grant of Pastoral Lease No. 526, and the rights and obligations which it submitted necessarily accompanied the legitimate pursuit of the “granted exclusive pastoral purpose”. It submitted that its legitimate pursuit of the pastoral purpose entitled it to pursue its activities in compliance with the law and not to be impaired from full compliance with the law in pursuit of the purpose. As I understood the submission, it was the “centrality of the pastoral purpose” which gave rise to the inconsistency necessary for the extinguishment of native title.

109    In support of this submission, Lexcray referred to particular provisions in Pastoral Lease No. 526, to provisions in the Crown Lands Ordinance 1931-1954 (Cth) pursuant to which Pastoral Lease No. 526 was granted on 27 May 1954, and to provisions in the Pastoral Land Act.

110    Lexcray noted that Pastoral Lease No. 526 contains a number of express covenants which obliged it in the past, or continue to oblige it, to:

(i)    use the land only for the purpose for which it is leased, namely, for pastoral purposes (cl 2);

(ii)    “stock the leased land with four head of cattle or other great stock to each square mile” before 30 June 1959 (cl 5);

(iii)    “stock the land and keep it stocked [so that] by the end of the tenth year of the Lease the land shall be stocked with six (6) head of cattle or other great stock to each square mile” (cl 6);

(iv)    “comply with the laws in force relating to the destruction of vermin and noxious weeds” (cl 8); and

(v)    “comply with the requirements of this Lease as to developmental work and improvements” (cl 15).

111    Each of the obligations was required by the Crown Lands Ordinance of the Commonwealth under which Pastoral Lease No. 526 was granted.

112    Pastoral Lease No. 526 also contains a “reservation in favour of the aboriginal inhabitants of the Northern Territory” as required by s 24(e) of the Crown Lands Ordinance. Section 24(e) provided that this reservation was to be read as:

[A] reservation giving to all aboriginal inhabitants of the Northern Territory and their descendants full and free right of ingress, egress and regress into, upon and over the leased land and every part thereof and in and to the springs and natural surface water thereon, and to make and erect thereon such wurlies and other dwellings as those aboriginal inhabitants are, from time to time, accustomed to make and erect, and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if the lease had not been made.

(Emphasis added)

113    The Crown Lands Ordinance also contained a number of provisions regulating the grant of pastoral leases made pursuant to it. It is not necessary to refer to them presently as the relevant regulation is now found in the Pastoral Land Act.

114    The reservation in a pastoral lease in favour of the Aboriginal inhabitants of the Northern Territory is now governed by s 38(2) of the Pastoral Land Act. It provides that such a reservation is to be read as permitting the Aboriginal inhabitants of the Northern Territory:

(a)    who ordinarily reside on the leased land; or

(b)    who ordinarily reside on an area of land that at any time after 1 January 1979 was within the boundaries of the land that then comprised the leased land and which area of land has since that date been excised from the leased land as a living area or part of a living area for those Aboriginal persons; or

(c)    who, by Aboriginal tradition, are entitled to use or occupy the leased land;

subject to subsection (3):

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

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

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

(i)    to take or kill for food or for ceremonial purposes animals ferae naturae; and

(ii)    to take for food or for ceremonial purposes vegetable matter growing naturally;

on the leased land;

but not permitting:

(g)    the Aboriginal persons referred to in paragraph (a) to erect or use a structure on the leased land that would serve as a permanent shelter for human occupation, other than at the place on the leased land where they ordinarily reside; or

(h)    the Aboriginal persons referred to in paragraph (b) or (c) to erect or use such a structure on the leased land.

115    The Court did not receive any submissions comparing the content of the reservation in these terms with the content of the reservation in the Crown Lands Ordinance.

116    With respect to the Pastoral Land Act, Lexcray noted, first, that s 4 includes objects directed specifically to the pastoral purpose of the Act and, by inference, of leases granted pursuant to it or which are regulated by it. The first and second objects in s 4 are:

(a)    to provide a form of tenure of Crown land that facilitates the sustainable use of land for pastoral purposes and the economic viability of the pastoral industry;

(b)    to provide for:

(i)    the monitoring of pastoral land so as to detect and assess any change in its condition;

(ii)    the prevention or minimisation of degradation of or other damage to the land and its indigenous plant and animal life; and

(iii)    the rehabilitation of the land in cases of degradation or other damage;

117    Secondly, Lexcray referred to the general duty of pastoral lessees stated in s 6 of the Pastoral Land Act:

6    General duty of pastoral lessees

It is the duty of a pastoral lessee:

(a)    to carry out the pastoral enterprise under the lease so as to prevent degradation of the land;

(b)    to participate to a reasonable extent in the monitoring of the environmental and sustained productive health of the land; and

(c)    within the limits of the lessee's financial resources and available technical knowledge, to improve the condition of the land.

118    Thirdly, Lexcray referred to s 38 which prescribes a number of conditions and reservations in pastoral leases granted under the Act. These included covenants by the lessee to use the land only for pastoral purposes (subs (1)(d)), a covenant requiring the lessee to comply with the requirements of all laws of the Northern Territory relating to the use and maintenance of the land (subs (1)(j)), and, similarly to the Crown Lands Ordinance to which I referred earlier, the reservation in favour of the Aboriginal inhabitants of the Northern Territory (subs 1(n)).

119    Fourthly, Lexcray drew attention to s 39 of the Pastoral Land Act which imposes conditions for the good land management of the area subject to a pastoral lease. Submissions were also directed to provisions providing for the imposition of sanctions on pastoral leaseholders who do not comply with these conditions.

120    Lexcray emphasised that the Pastoral Land Act made particular provision for homesteads on pastoral leases. It commenced by noting the definition of “homestead” in s 3:

homestead, in relation to land the subject of a pastoral lease, means a building or group of buildings and other facilities of a substantial nature built for residential, administrative and management purposes and used for those purposes in connection with the legitimate pastoral use of the land.

121    It submitted that the very size and remoteness of pastoral leases make it inevitable that leaseholders would erect homesteads; that the Pastoral Land Act recognises that this was so; and that the Pastoral Land Act sought to limit the activities in which persons could engage as of right in close proximity to a homestead. Lexcray referred in particular to s 38(3) which provides that the reservation in the pastoral lease in favour of the Aboriginal inhabitants of the Northern Territory does not apply to:

(a)    a part of the leased land within 2 km of a homestead;

(b)    an area that falls within s 79(7) which limits the right of a person to camp within 2 km of a homestead or other residential premises on pastoral land; and

(c)    an area that falls within s 101(2) which limits the right of an Aboriginal person to apply for excision of an area of a pastoral lease which is within 2 km of a homestead.

122    In what I understood to be a submission made in the alternative, Lexcray submitted:

(i)    section 225 of the NT Act permits the identification of conditions of the grant of the pastoral lease or activities which may be permitted as a consequence of its grant. Their specification then allows the relationship between those interests and the NTRI determined by the Court to be specified in the manner contemplated by s 225(d);

(ii)    the Court has in other determinations listed incidents of legal rights that arise as a consequence of the common law or statute in respect of a granted interest. Lexcray referred in this respect to WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (McKerracher J); and

(iii)    the very fact that there is debate about “the issues” indicates that it is in the interests of all parties that the controversy be quelled as the NTRI are determined.

123    In relation to its proposal that cl 15(a)(ii) should refer to “use and enjoyment” and not just to “use” of the pastoral homestead and improvements, Lexcray submitted:

(a)    the expression “use and enjoy” is well recognised in the law as conveying an entitlement to the full exercise of rights in connection with its subject. In particular, the expression is used in connection with the exercise of rights with respect to land. A right to use a pastoral lease or the area to which it is subject is more confined than a right to “use and enjoy” the lease or its area;

(b)    the right to “enjoy” land is recognised in the implied covenant to quiet enjoyment of demised premises: O’Keefe v Williams (1910) 11 CLR 171 at 191; Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199 at 213-4; Law of Property Act 2000 (NT), Sch 2, Item 20; and

(c)    the “enjoyment” of rights is recognised in relation to native title: Brown at [39]. However, [39] in Brown does not assist Lexcray. In that paragraph, the High Court held (in relation to the determination of inconsistency of rights), that analogy with the “enjoyment” of rights is apt to mislead because it diverted attention from the necessary comparison between the legal nature and content of the right granted, and the native title right asserted.

Consideration of Lexcray’s submission

124    As previously noted, it was common ground that each of the pastoral leases to which the proposed determinations relate is a “non-exclusive pastoral lease” and that the act granting each is a “previous non-exclusive possession act” to which ss 23F and 23G of the NT Act apply. Those and other provisions in the NT Act (ss 23G(1)(a), 24GC(1)(c) and (2) and 44H) govern the relationship between NTRI and the rights under the leases.

125    Lexcray’s “bold” submission that its right under Pastoral Lease No. 526 to erect improvements on Nutwood Downs including the homestead, and its exercise of that right, has extinguished native title cannot be accepted. The contention fails for the same reasons that analogous claims failed in Ward and in Brown. It was held in Ward that, to the extent that grants of pastoral leases involved the grant of rights and interests not inconsistent with NTRI in relation to the land or waters covered by the leases, the rights and interests granted, and the doing of any activity in giving effect to them, prevailed over the NTRI but did not extinguish them, at [424]. In Brown, it was held that the mineral leases then under consideration “were no different from the pastoral leases considered in Wik, the mining leases considered in Ward or the Argyle mining lease also considered in Ward”. The Court continued, at [57]:

… The mineral leases did not give the joint venturers the right to exclude any and everyone from any and all parts of the land for any reason or no reason. The joint venturers were given more limited rights: to carry out mining and associated works anywhere on the land without interference by others. Those more limited rights were not, and are not, inconsistent with the coexistence of the claimed native title rights and interests over the land … That the rights were not inconsistent can readily be demonstrated by considering the position which would have obtained on the day following the grant of the first of the mineral leases. On that day, the native title holders could have exercised all of the rights that now are claimed anywhere on the land without any breach of any right which had been granted to the joint venturers. That being so, there was not then, and is not now, any inconsistency between the rights granted to the joint venturers and the claimed native title rights and interests.

126    Later, at [60], the Court held that consideration of extinguishment is not to be deferred until the manner of exercise of the allegedly inconsistent and extinguishing rights is known, and thereby overruled the decision of this Court in De Rose v State of South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 at [156].

127    Lexcray accepted that Brown establishes that an issue of inconsistency is to be determined by applying an objective test of inconsistency “by reference to the nature and content of the rights as they stood at the time of the grant”. It sought, however, to distinguish Brown by referring to the nature of the rights it obtained on the grant of the pastoral lease as distinct from the exercise of those rights, which it contended had been considered in Brown. That approach does not avail Lexcray, for the same reason stated by the High Court in Brown at [57].

128    Lexcray’s submission also appears to overlook the express disapproval in Brown of the decision in De Rose – see Brown at [60]-[62].

129    Although Pastoral Lease No. 526 contains a list of the improvements on Nutwood Downs at its commencement, Lexcray did not submit that, at the time of the grant of the Lease, the location of the homestead and other improvements on Nutwood Downs, which are the subject of its present submissions, were known. That being so, there is an obvious difficulty in the identification of the particular area or areas on Nutwood Downs in respect of which native title was extinguished in accordance with Lexcray’s contention.

130    Further again, the Lexcray submission faces a difficulty with respect to fencing. If the construction of improvements had the effect of extinguishing native title, then the 120 miles of stock proof fencing which it was bound by cl 3 to construct before 30 June 1959, should also have had the same effect. Yet Lexcray did not contend that this improvement had had a relevant extinguishing effect. It was correct not to do so – see Brown at [59].

131    A further difficulty for Lexcray in establishing an inconsistency of the requisite kind arises from the reservation in favour of the Aboriginal inhabitants of the Northern Territory. It is the content of that reservation at the time of the grant of Pastoral Lease No. 526 which is pertinent. That content was contained in s 24(e) of the Crown Lands Ordinance set out earlier. The presence of that broadly worded reservation is inconsistent with the grant of the pastoral lease extinguishing by necessary implication the NTRI. The circumstance that the reservation is possibly expressed a little more narrowly in s 38(2), (3) and (4) in the Pastoral Land Act does not alter that position.

132    Lexcray’s submission concerning extinguishment was not only bold but curious. That is so because of two matters. First, cl 3 and Sch D in the form of the consent determination proposed by Lexcray which address the issue of extinguishment, and on which Lexcray had reached agreement with the applicants and the Northern Territory, do not contemplate that native title has been extinguished over the site of the homestead and improvements on Nutwood Downs but not over other areas of the lease. Clause 3 in the form of the determinations proposed by all parties is:

Native title does not exist in those parts of the Determination Area identified in Schedule D.

133    Schedule D commenced with the chapeau:

Native title rights and interests have been wholly extinguished in the following areas of land and waters.

134    Clause 1 in Sch D in each of the forms of determination proposed by the parties is:

[If any interests in the Determination Area wholly extinguish native title, for example, an NT portion the subject of freehold title or type of lease, insert here.]

135    If Lexcray had wished to contend that the grant of Pastoral Lease No. 526 and its exercise of its right to erect a homestead and other improvements had extinguished native title over particular parts of Pastoral Lease No. 526, one would have expected to see this reflected in cl 3 and Sch D of its proposal.

136    The second matter is that, as already noted, Lexcray made this submission in relation to its proposed cl 15 concerning other interests in the determination area. However, Lexcray had agreed with the applicants and the Northern Territory the terms of the clause (cl 16 in its proposal) providing, as required by ss 94A and 225(d) of the NT Act, for the relationship between the determined NTRI and the other interests identified in the determination. The parties, including Lexcray, have agreed that the relationship should be expressed as follows:

16.    The other rights and interests in clause 15, and the doing of an activity in giving effect to them or of an activity required or permitted by them, prevail over but do not extinguish the native title rights and interests referred to clauses 9 and 10, and the existence and exercise of the native title rights and interests do not prevent the carrying on of any such activity.

(Emphasis added)

137    That is to say, Lexcray proposes explicitly that the determination of native title with respect to Nutwood Downs provides that its pastoral lease has not extinguished native title. It is apparent that Lexcray’s proposed cl 16 has been drafted to give effect to ss 23G(1)(a), 24GC(1)(c) and (2) and 44H of the NT Act.

138    For these reasons, I reject the Lexcray submissions concerning extinguishment.

139    A starting point in the consideration of Lexcray’s alternative submission with respect to the proposed clause concerning “other interests” is the definition in the NT Act at s 253 of the term “interest”:

interest, in relation to land or waters, means:

(a)    a legal or equitable estate or interest in the land or waters; or

(b)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i)    the land or waters; or

(ii)    an estate or interest in the land or waters; or

(c)    a restriction on the use of the land or waters, whether or not annexed to other land or waters.

140    This definition is “very wide”: Western Australia v Ward at [387], but that does not mean that the concept of an interest as defined is unlimited: Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238 at [160]. Whatever its width, it is obvious that an interest under a pastoral lease is within the definition, but it is less apparent that the interest of Lexcray in having the two burial sites on Nutwood Downs respected (however laudable that may be) is an interest of the requisite kind. I will return to that topic.

141    Sections 94A and 225(c), in combination, require a determination of native title to set out details of the nature and extent of any other “interests” in the determination area. It is details of the interest, and not of the activity or activities which are, or which may be, performed in pursuance of that interest, which is to be specified.

142    Section 225(d) requires that the relationship between the NTRI and the other rights and interests to be specified in the determinations. Again, it is the relationship between the respective rights and interests, and not the relationship between the activities permitted by these rights and interests, which is to be specified.

143    In my view and speaking generally, when the interest of a pastoral leaseholder over the determination area is identified as an “other interest”, it is unnecessary, and probably superfluous, for the determination to include specific activities in which the pastoral leaseholder may engage, or has engaged, in the legitimate pursuit of the pastoral purpose or enterprise. In Murray at [1565], McKerracher J referred to the ruling in Brown that pastoral lease improvements do not extinguish native title and, accordingly, accepted that there need be no specific mention of the improvements in the determination then under consideration.

144    Moreover, attempts to list some of the activities or responsibilities of a pastoral leaseholder may be apt to mislead if they distract attention from the full range of rights and responsibilities of a leaseholder. There is also the potential for the manner of expression (when specifying the activities in which a pastoral leaseholder may engage) to put a gloss on the activities in which the leaseholder may lawfully engage. It is undesirable for a determination of native title to be the location in which the particular activities permitted or required by a pastoral leaseholder are to be found.

145    On my understanding, the “rights and obligations” of pastoral lessees with respect to the management or use of feral animals, including any obligations regarding biosecurity, and the rights and obligations of pastoral lessees with respect to bushfire prevention, management and control are incidents arising from the pastoral lease itself. In some instances, pastoral leaseholders have a responsibility (for example arising under the Bushfires Management Act 2016 (NT)) and in other instances a strong interest, for example, in the maintenance of biosecurity. But in either case, the interest or obligation is an incident of the pastoral lease itself. That being so, there is, in my opinion, no need for these particular matters to be included in the specification of “other interests” in addition to the interest of the pastoral leaseholder.

146    It is understandable that Lexcray would wish to ensure that the two burial sites on Nutwood Downs are respected. However, it is not easy to see that Lexcray’s interest in having the sites respected amounts to an interest of the kind defined in s 253. I note that Lexcray advanced hardly any submissions in support of the claim that its desire to respect the burial sites is an interest of the requisite kind.

147    For these reasons, I am not satisfied that the “other interests” clause should be expressed in the manner proposed by any of the respondents. That makes it unnecessary to consider Lexcray’s submissions with respect to “enjoyment”. I consider that the proposal of the applicants is the appropriate formulation.

Clause 5(a) – The scope of the reserved liberty to apply issue

148    Each of the parties proposed that the Court include in its order by which the determination is to be made a reservation of a liberty to the parties to apply for the establishing of the precise location and boundaries of the area necessary for, or incidental to, the use of pastoral homesteads and improvements. However, the applicants submitted that the need for the reservation of the liberty to apply should be justified by the pastoralists.

149    There is also disagreement between the parties as to the wording of the reservation of the liberty to apply (if it is to be included) in a way which affects its scope.

150    Given my conclusions on the respondents’ contentions with respect to the inclusion in the “other interests” clause of the rights of a pastoral lessee to the use of any pastoral homestead or improvements in any adjacent land or waters necessary for or incidental to that use, this reservation of liberty to apply is unnecessary. I will therefore refrain from including in the proposed orders provision for the parties to have liberty to apply to establish “the precise location and boundaries of … any adjacent land or waters for use of which is necessary for, or incidental to, the use of any pastoral homestead or improvements”.

151    The parties were agreed that there should be a reservation of a liberty to apply to establish the precise location and boundaries of “public works and adjacent land and waters identified in relation to any part or parts of the Determination Area” identified in Schedule D (the schedule identifying the areas of extinguishment). That will be included in the Court’s orders.

Conclusion

152    My rulings, for the reasons set out above, with respect to the clauses in dispute are:

(a)    The reservation of the liberty to apply in proposed cl 5(a) should be omitted;

(b)    Clause 11(c)(ii) should in the form proposed by the applicants, the Northern Territory and Lexcray;

(c)    The determination should include the non-exhaustive list of the activities permitted by the NTRI in the form proposed by Lexcray, but noting that the parties may agree upon the inclusion of the additional Newcastle Waters rights not presently included in the non-exhaustive list; and

(d)    Clause 15(a) should be in the form proposed by the applicants as cl 14(a).

153    I will hear from the parties with respect to any incidental matters arising from this decision.

Associate:

Dated:    19 December 2019

SCHEDULE OF PARTIES