Hayes v Northern Territory [1999] FCA 1248 (9 September 1999)

Last Updated: 9 September 1999

ABORIGINALS AND TORRES STRAIT ISLANDERS - native title - claimant application for determination of native title - identification of native title holders.

ABORIGINALS AND TORRES STRAIT ISLANDERS - native title - identification of traditional laws and customs in relation to land.

ABORIGINALS AND TORRES STRAIT ISLANDERS - native title - extinguishment of native title - previous exclusive possession acts.

ABORIGINALS AND TORRES STRAIT ISLANDERS - native title - extinguishment of native title - reservation or setting aside of land inconsistent with continuation of native title.

ABORIGINALS AND TORRES STRAIT ISLANDERS - native title - Native Title Act

s 47B - occupation of land at time of application.

ABORIGINALS AND TORRES STRAIT ISLANDERS - native title - form of determination of native title.

Aboriginals Ordinance 1918 (NT)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Airservices Act 1995 (Cth)

Civil Aviation Act 1988 (Cth)

Civil Aviation Legislation Amendment Act 1995 (Cth)

Conservation Commission Act (NT)

Control of Roads Act (NT)

Control of Waters Ordinance 1938 (NT)

Crown Lands Act 1992 (NT)

Crown Lands Ordinance 1912( NT)

Crown Lands Ordinance 1924 (NT)

Crown Lands Ordinance 1927 (Central Australia)

Crown Lands Ordinance 1931 (NT)

Crown Lands Regulations (NT)

Energy Pipelines Act 1981 (NT)

National Security Act 1939 (Cth)

National Security (General) Regulations (Cth)

Native Title Act 1993 (Cth)

Native Title Amendment Act 1998 (Cth)

Northern Australia Act 1926 (Cth)

Northern Territory Act 1863 (SA)

Northern Territory Aboriginals Act 1910 (SA)

Northern Territory Aboriginal Sacred Sites Act 1989 (NT)

Northern Territory (Administration) Act 1912 (Cth)

Northern Territory Land Act 1872 (SA)

Northern Territory (Self Government) Act 1978 (Cth)

Parks and Wildlife Commission Act (NT)

Real Property Act (NT)

Soil Conservation and Land Utilization Act (NT)

Special Purposes Leases Act (NT)

Territory Parks and Wildlife Conservation Act (NT)

Validation (Native Title) Act (NT)

Validation of Titles and Actions Act 1994 (NT)

Waste Lands Act 1857 (SA)

Waste Lands Amendment Act 1865-1866 (SA)

Water Act 1992 (NT)

Wildlife Conservation and Control Ordinance 1963 (NT)

Mabo and Others v The State of Queensland (No 2) [1992] HCA 23; 175 CLR 1 Applied

The Wik Peoples v The State of Queensland 187 CLR 1 Applied

The Queen v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69; 158 CLR 327 Applied

Eaton v Yanner (unreported: Queensland Court of Appeal, 27/8/1998) Referred to

Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 Referred to

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

DG No 6002 of 1996

OLNEY J

ALICE SPRINGS

9 SEPTEMBER 1999

OLNEY J:

The applicants in this matter seek a determination of native title in respect of 166 separate parcels of land in and near Alice Springs.

For reasons set out in the judgment I am about to publish, I have concluded that native title exists in relation to some, but not all of the claimed land. In my opinion native title exists in relation to either the whole or part of 113 of the 166 areas claimed. In respect of the remainder, native title has been extinguished.

A major feature of this decision is that I have rejected the Northern Territory government's submission that pastoral leases granted both before and after the surrender of the Territory to the Commonwealth in 1911 extinguished native title rights and interests.

Based upon the evidence that I have heard I have concluded that the native title rights and interests of the applicants do not give them the right to possession, occupation, use and enjoyment of the determination area to the exclusion of all others.

The judgment contains rulings on a multitude of other issues raised in the course of the case. To a large extent those rulings relate to questions which have arisen for the first time as a result of the amendments made to the Native Title Act in 1998 following the Wik decision.

I am also publishing today a draft of the proposed determination. The parties will have an opportunity to study my judgment before making any comments as to the final form of the determination. Although the draft is intended to provide a basis for discussion, the final determination will be substantially, but not necessarily exactly, in the form of the draft.

For the purpose of complying with s 56 of the Native Title Act, I propose to request that Myra Hayes Ampetyane, as a representative of the persons who are to be included in the determination as the native title holders, to indicate whether it is intended to have the native title held in trust. If this is the intention of the native title holders, Ms Hayes must within two months from today nominate in writing to the Federal Court a prescribed body corporate to be trustee of the native title and include with the nomination the written consent of the body corporate.

For the purpose of facilitating the finalisation of this proceeding I propose to direct the parties to confer with a view to reaching agreement as to the form of the determination which of course must be consistent with the findings contained in my judgment. If agreement can be reached by this process a minute of the agreed form of determination is to be filed by 3 December 1999, otherwise each party may file and serve a minute of its proposals. The Court will reconvene on 9 December 1999 in Darwin for the purpose of making the determination of native title and any other orders that may be appropriate. All parties have liberty to apply upon 10 days notice.

I now publish my reasons for judgment, a draft minute of the proposed determination of native title, a formal request under s 56 and the Court's further directions.

Alice Springs,

9 September 1999.

THE COURT REQUESTS -

Ms Myra Hayes Ampetyane, as a representative of the persons the Court proposes to include in its determination of native title as the native title holders (the common law holders), to indicate whether the common law holders intend to have the native held in trust by:

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

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

[NOTE: Section 56(2) of the Native Title Act provides that if the common law holders give the nomination within the period specified the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and if the common law holders do not give the nomination within that period, the Federal Court must determine that the rights and interests are to be held by the common law holders].

THE COURT DIRECTS THAT:

1. The parties confer with a view to reaching agreement as to the final form of a determination of native title consistent with the Court's findings as expressed in its reasons for judgment published on 9 September 1999.

2. In the event that the parties agree upon the form of the determination, a minute of such agreed form signed by the solicitors for each party is to be filed by 3 December 1999.

3. In the event that the parties do not agree upon the form of the determination, each party may file and serve by 3 December 1999 a minute of its proposal as to the form of the determination.

4. A party seeking any other orders may file and serve a minute of the proposed orders by 3 December 1999.

5. The further hearing of the proceeding is adjourned until 10.15 am on 9 December 1999 at the Federal Court in Darwin.

6. All parties have general liberty to apply on 10 days notice in writing.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT DETERMINES THAT:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

INTRODUCTION

1. This is an application for a determination of native title in relation to land and waters in and near Alice Springs in the Northern Territory.

The applicants are:

Thomas Stevens Peltharre

Robert Francis Stuart Kngwarraye

Robert Liddle Kemarre

Augustine Rice Ampetyane

Wenten Rubuntja Pengarte

Patrick Peter Stirling Kemarre

Veronica Golder (Campbell) Pengarte

Myra Hayes Ampetyane

Rosie Ferber Ampetyane

Doris Stuart Renehan Kngwarraye

Stewart Oliver Angale

Clem Ellis Pengarte

Phylis Blanche Campbell-Kenny Ampetyane

Jean Stuart Kemarre

The application was made to the National Native Title Tribunal (the Tribunal) on 31 August 1994 pursuant to s 13(1) and s 61(1) of the Native Title Act 1993 (the Act) and was accepted by the Native Title Registrar on 12 April 1995. The Tribunal made no determination under ss 70, 71 or 73 of the Act and on 21 May 1996 the Native Title Registrar lodged the application with the Federal Court for decision.

By virtue of s 84(1) of the Act, at the time the application was referred to the Court, the parties to the proceeding other than the applicants were:

Alice Springs Town Council,

Aboriginal Areas Protection Authority,

Solicitor for the Northern Territory and

Conservation Land Corporation.

2. The Aboriginal Areas Protection Authority advised the Court by letter on 28 June 1996 that it did not wish to appear as a party to the proceeding and was subsequently removed as a party.

At the first directions hearing on 4 July 1996 the Northern Territory of Australia was substituted as a party in place of the Solicitor for the Northern Territory.

The Conservation Land Corporation appeared at the first directions hearing but did not otherwise take any part in the proceeding nor did the Alice Springs Town Council.

The Commonwealth of Australia was represented at the first directions hearing and sought to be joined as a party but did not press the matter at that stage. Subsequently, the Commonwealth made a formal application to be joined but before its motion came before the Court it reached an accommodation with the applicants and did not proceed further with its application.

3. The Attorney-General for the Commonwealth was given leave to intervene on 10 June 1997 when a question was raised concerning the failure of the Native Title Registrar to give notice of the application to a number of persons and companies having mining interests in the claimed land. Section 66(2)(a)(v) of the Act required that notice be given to

any person who holds a proprietary interest in any of the area covered by the application, being an interest that is registered in a register of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory.

After hearing submissions from counsel for the Attorney-General and the other parties I ruled that the proceeding was not invalidated by the failure by the Native Title Registrar to give notice to eight individuals and corporations shown to have a registered proprietary interest in various parts of the claimed land, but directed that the District Registrar give notice of the proceedings to the holders of such interests and provide them with an opportunity to be heard. None of those concerned made any response.

4. On 4 July 1996 orders were also made, inter alia, for the filing and exchange of statements of facts, issues and contentions and other material in relation to the application. The proceeding was set down for hearing at Alice Springs commencing on 1 July 1997. Further directions were given from time to time as required.

THE APPLICATION

5. In their application the applicants identify "other persons with whom the applicants claim to hold title" as follows:

The applicants are family representatives who hold native title along with all other members of their families. The land the subject of this application is primarily associated with Central Arrernte people although other Arrernte people also have traditional connections to the area. The applicant families encompass the interests of both Central Arrernte and other Arrernte people. For the purposes of this application these families are collectively termed the Mbantuarinya Arrernte.

Subsequently, the landholding groups were described as the members of Mparntwe, Antulye and Irlpme estate groups. In these reasons the persons on whose behalf the application is made are collectively referred to as "the claimant groups".

6. The area of land and waters covered by the application is described in the application by reference to attached maps which identify 166 separate parcels of land and waters. It is said that all land and inland waters claimed are either vacant Crown land, Crown land subject to various reserves, Crown land subject to various leases and Crown land `set aside' for various purposes and that none of the land or waters claimed is held under freehold title or held under a current pastoral lease. The appendix to these reasons sets out, inter alia, particulars of each separate parcel by reference to its Northern Territory portion or lot number. The total area of land and waters to which the application relates will be referred to as "the claimed land". Each separate parcel will be referred to as an area and identified by the relevant area number shown in the appendix.

7. By letter dated 17 August 1995 addressed to the Native Title Registrar (exhibit A 2.1) the Central Land Council, acting on behalf of the applicants, made a number of relatively minor amendments to the application. The full text of the letter is as follows:

Re: Claimant Native Title Determination Application No Dc 94/2

I refer to the above Application and advise that the Central Land Council has received instructions from the Mbantuarinya/Arrernte Claimants to amend Application No DC 94/2 as follows:

1. Parcel of land marked No 66 (Lot 5648) in the Application is withdrawn from the Application.

2. The native title rights claimed over parcels of land numbered in the Application:

a) 77, 78 and 79 (Lots 7384, 7385 and 7386); and

b) 84 and 85 (Lots 7417 and 7418),

are such that the claimed rights will not interfere with the current usage of that land as unlined storm water channelling.

3. The native title rights claimed over land parcels numbered 81, 82 and 104 (Lots 7411, 7412 and 8054) in the Application are such that the claimed rights will not interfere with the two existing retardation dams on that land.

4. The extent of the land which is subject to the Application in land parcel 33 (Lot 2683), being Anzac High School is limited to that area of land which is satisfactory to the Mbantuarinya/Arrernte Claimants to ensure the protection of the registered sacred site situated on that land.

5. The extent of the land which is subject to the Application in land parcel 36 (Lot 5651), being Sadadeen Primary School, is limited to that area of land which is satisfactory to the Mbantuarinya/Arrernte Claimants to ensure the protection of the registered sacred site situated on that land.

Would you kindly acknowledge amendment of the Application in the above terms.

The substance of these amendments is noted in the particulars set out in the appendix.

In a further letter to the Native Title Registrar dated 30 November 1995 (exhibit A 2.2) the CLC made two further amendments in order to rectify minor ambiguities. Those amendments are reflected in the particulars set out in the appendix.

8. The determination sought by the applicants in the form expressed in paragraph 12.3 of their written submission dated 12 June 1998 is as follows:

(a) native title exists in the Mparntwe estate, the Antulye estate and the Irlpme estate, being the estates in which the areas of land and waters the subject of the application are located;

(b) the native title to the land and waters the subject of the application is held by the members of the Mparntwe estate group, the Antulye estate group, and the Irlpme estate group;

(c) the native title rights and interests confer possession, occupation, use and enjoyment of the land and waters the subject of the application on the members of the three estate groups to the exclusion of all others, subject to the rights of others validly granted by the Crown pursuant to statute to possess, occupy, use or enjoy the land or waters;

(d) the rights and interests of the members of the three estate groups that are of importance are:

(i) the right to possession, occupation, use and enjoyment of the land and waters of their estates that are the subject of the application, subject to the rights of others validly granted by the Crown pursuant to statute to possess, occupy, use or enjoy the land or waters;

(ii) the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates.

(e) alternatively, the native title rights and interests of the members of the three estate groups that are of importance are:

(i) the right and interest of possession, occupation, use and enjoyment of the land and waters of their respective estates;

(ii) the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates;

(iii) the right and interest of ownership of the natural resources of the land and waters of their respective estates, and the right to use and enjoy those resources;

(iv) the right to give or refuse permission to non-members of the estate groups to occupy, or enjoy the land and waters of the respective estates, or to use and enjoy the natural resources of that land and waters;

(v) the right to make decisions about the use of the land and waters of their respective estates;

(vi) the right to protect places and areas of importance in the land and waters of the respective estates;

(vii) the right to manage the spiritual forces and to safeguard the cultural knowledge associated with the land and waters of the respective estates.

This form of determination was put forward "by way of preliminary submission" at a time when amendments to the Native Title Act were actively under consideration by the Commonwealth Parliament and reflects the provisions of s 225 of the Act as it then applied. A new s 225 was substituted by the Native Title Amendment Act 1998. The Court is now not required to identify the native title rights and interests that it considers "to be of importance", but rather it is required to determine "the nature and extent of the native title rights and interests". Paragraph 24 of Schedule 5 to the amending Act provides that the substituted form of s 225 is to apply to all determinations made after the commencement of the amending Act, regardless of when any native title determination application was made. In these circumstances the new form of s 225 is applicable to this proceeding. As no further submission has been made since the amended section came into operation, it is presumed that for the purposes of s 225(b) (as amended) the applicants seek a determination that the nature and extent of their native title rights and interests in relation to the claimed land encompass all of the rights and interests asserted in paragraphs (d) and (e) of the proposed determination as expressed in paragraph 12.3 of the submission of 12 June 1998.

THE TRIAL

9. The trial was conducted at Alice Springs and occupied a total of 35 hearing days. It commenced on 1 July 1997 and concluded on 9 February 1999. The Northern Territory was the only party other than the applicants to participate in the trial and in these reasons is referred to as the respondent. The applicants called 50 witnesses and the respondent called 5. Numerous exhibits, including a number of uncontested witness statements, were tendered and admitted into evidence. A number of sites were visited in the course of the hearing at the request of both the applicants and the respondent. Although there were no formal pleadings the issues were initially defined by the exchange of statements of facts, issues and contentions. The 1998 amendments raised further issues which were addressed at a special sitting of the Court convened after the new provisions took effect.

NATIVE TITLE

10. In Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (Mabo No 2), the concept of what is now generally understood as "native title" was referred to by each of the majority Judges. Mason CJ and McHugh J referred (at p 15) to the recognition by the common law of Australia of "a form of native title which ... reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional land". Brennan J (whose reasons for judgment Mason CJ and McHugh J expressly adopted) said (at p 57):

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

Deane and Gaudron JJ used the term "common law native title" to refer generally to what they described as "that special kind of title" which

... must, in the event of dispute between those entitled to it, be determined by reference to the pre-existing native law or custom (pp 87-88).

In dealing with the case put by the plaintiffs Toohey J applied the term "native title" to "the interests (the plaintiffs') predecessors enjoyed in the Islands prior to annexation ..." (p 176) and at p 187 he said:

... the traditional title has a common law existence because the common law recognises the survival of traditional interests and operates to protect them.

The Native Title Act 1993 was the Commonwealth Parliament's response to the decision in Mabo No 2. In the preamble it is recited, inter alia, that the High Court has:

held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands.

The principal object of the Act is expressed, in s 3(a), to be:

to provide for the recognition and protection of native title.

The statutory definition of "native title" largely adopts the language used in Mabo No 2. Subsections (1) and (2) of s 223 provide:

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

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

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

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

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

The resolution of an application for a determination of native title will initially require the Court to inquire into and make findings concerning:

* the identity of the claimant group and its relationship with the indigenous inhabitants of the land in question;

* the geographical location to the traditional lands of the claimant group;

* the nature of the traditional laws and customs of the claimant group in relation to their traditional land.

In the event that the claimant group establishes the existence of traditional rights and interests in relation to the claimed land, it will then be necessary to consider the extent, if any, to which those rights and interests are recognised by the common law.

ARRERNTE SOCIAL ORGANISATION

11. The paragraphs which follow contain, in summary form, a description of some aspects of the social organisation and cultural traditions of the members of the claimant groups. What is written is based upon a report prepared by Dr John Morton, a consultant anthropologist engaged by the applicants. The report was tendered in evidence (exhibit A3) without objection. Its contents are not controversial and accordingly these paragraphs represent a commentary on undisputed aspects of the evidence of an expert witness and as such provide a context in which the evidence of the Aboriginal witnesses can be more readily understood. To the extent that assertions of fact are made, they represent Dr Morton's evidence which is unchallenged; and to the extent that opinions are expressed, they are Dr Morton's and stand uncontradicted. The respondent did not call any expert evidence.

12. It is the applicants' case that since time immemorial the area in and around Alice Springs has been occupied by the Arrernte people under an orderly and mutually recognised system of governance and laws by which they live and define their relationship with the land and their environment. The traditional country of the Arrernte extends far beyond the area affected by the present application which is made on behalf of specific Arrernte groups whose estates include various portions of the claimed land. The estate groups in question are the Mparntwe, Antulye and Irlpme. In terms of the proportion of the claimed land associated with the particular estate groups, Mparntwe is the dominant group. Large parts of the Antulye and Irlpme estates lie outside the area of the claim. At p 5 of his report, under the heading "A Human Landscape" Dr Morton says:

Arrernte land tenure involves a form of identification between tracts of country and particular groups of people. Any adequate description of Arrernte interests in land needs to describe how such identification takes place as an orderly, but not necessarily predictable, political, legal and cultural process. Arrernte society, in common with all other Aboriginal societies, is framed in terms of families. Moreover, there is a great deal of overlap between the ways people are described as related to each other and a more general notion of relationship. For example, kinship terms are used to describe the land itself. This usage is extensive. Land, as the embodiment of the deeds of past generations, is literally related to those who own it.

13. Connection to land, and rights and interests in land are to a large degree subsumed under the Arrernte concept altyerre, a complex word which has several different but related meanings. It can be translated as "the Dreaming, Dreamtime: the creation of the world and the things in it, and its external existence". Dr Morton says (at p 8)

The course of creation consists of the spontaneous awakening and movement of ancestral figures, beings with supernatural and human-like qualities and typically intimately associated with specific types of animals, plants or other natural phenomena (totems). Hence the totemic ancestors might be `caterpillar people', `dog people', `corkwood honey people' or `water people', although some ancestral figures, known by names like `two women', `young boy' or `dancing women', appear to be without such associations, possibly remaining exclusively human in character. Totemic ancestors are larger than life and performed marvellous feats out of which the landscape came into being, with its features regarded as consubstantial with ancestral bodies - hence the fundamental identification of hills, gaps, soakages, trees and other landscape features as ancestral beings. While certain understandings of this identification are based on an idea of ancestral creation synonymous with the most prosaic sense of `making', detailed examination of the concepts involved reveals that ancestors also make the world in a more metaphysical sense, naming its features and causing them to be known, imbued with emotional significance and bound to the ancestor's very sense of existence.

and (at p 9)

Apart from creating the landscape itself and the forms of art associated with it, the ancestors also brought into existence all the other features of contemporary human existence - hunting and gathering, the making and use of tools, rules of kinship, language and dialect variation, and so on. Collectively, and in conjunction with totemic beliefs and ceremonial action, all these features may be glossed in English as the Law. While the Law is often narrowly defined in terms of ceremonial activity, it may also be construed as a more general system of rules and regulations through which people define their rights and interests. This system is ultimately bestowed by the first beings who came to life in the Dreaming. In that sense, The Dreaming is basic to Arrernte culture and world views, and might best be captured in English by a metaphorical notion like `ground'. It is common for people to describe the ancestors and their powers as being deep in the ground. People may also refer to Dreamings in terms of their `roots' in the country (even occasionally mixing the metaphor with the idea that these roots support a family tree).

14. The Arrernte word apmere has the board sense of "place" but may, in some contexts, refer to such terms as "site", "camp", "country" or "home". Dr Morton says (at p 10):

The ancestors created the world, so all the features of the landscape are now seen as apmere (sites) which mark their presence. This is because all geographical traces, through their totemic creation, are spiritually bound to the embodiment of an ancestor. However, some of these places are more prominent than others. Strehlow (1947:139-53, 1965:139-41) writes of some of these places as apmere akwetethe, which he translates as `eternal home' - the place where an ancestor desires to be for all time. Some sites become focal camping places in the contemporary landscape, or come to define much larger areas of country by lending them their names. Such places are, in effect, centres or `capitals' of their countries, although the same areas may now also be known by non-indigenous landmarks, such as town and cattle station homesteads. For example, the name Antulye refers to a particular sacred site, to an associated country area and family group ... and was also adopted as the name of the cattle station to the east of Alice Springs (`Undoolya').

Such larger areas of country (also called apmere) are generally referred to by anthropologists as estates. Estates consist of a network of Dreaming tracks and a mosaic of specific sites marking the local deeds of ancestral figures. Some sites are ameke-ameke; that is, particularly powerful and dangerous in a supernatural sense. Such places must be approached with care; others must be avoided. However, avoiding is only the negative side of a positive injunction to carefully manage the power concentrated in certain places. Most sites are not ameke-ameke. They may be regular camping places or notable landmarks which are not regarded as especially dangerous. As a living landscape, an estate consists of a network of sites with different types of significance.

Responsibility for site protection in general, and for careful management of the power of certain sites in particular, typically falls upon senior adults. In some cases the responsibility is gender specific. It is also held on behalf of all others who are members of the landholding group. To understand the composition of such groups, it is first necessary to know something about Arrernte kinship.

15. An estate is always associated with, and owned by, a group of living people who have established connections to the original ancestors in a variety of ways.

All Arrernte people in principle belong to just one of the eight social categories (subsections) known as kemarre, purrurle, penangke, pengarte, angale, ampetyane, kngwarraye and peltharre. The system of skin allocation is sociocentric. This means that skin names are allocated to people like personal names and that they can largely (though not exclusively) be used from any point of reference.

The system of skin names meshes with the relationship terminology, such that, from the point of view of any one person, particular relatives will usually be of the same skin. For example, if one is a kemarre man, one's fathers should all be perrurle; one's mothers should all be penangke; one's wife or potential wives should all be peltharre; one's sons and daughters should all be perrurle; one's sister's childrens should all be kngwarraye; and so on. The main way of establishing the correct nature of a relationship between strangers is to simply `read off' an appropriate kin term through knowledge of a person's section or subsection (although relative age may also have to be taken into account). (Morton p 12)

Not all marriages conform precisely with these rules and when, as sometimes happens, couples do not marry according to the first order rules, their marriage may be called `two way', `half-right' or `wrong' and their offspring may be known by two skin names, one derived by association with the father, the other from the mother.

16. Anthropologists sometimes refer to the skin system in terms of moieties. In Arrernte society one belongs to the moiety of one's father and his siblings. Particular pairs of skin names are grouped together as `patricouples'. In the sub-section system, one patrimoiety is association with the patricouples kemarre/perrurle and angale/ampetyane, while the other is associated with penangke/pengarle and kngwarraye/peltharre. Arrernte people also recognise in the skin system a pair of generation moieties known reciprocally as nyurrpe. An Arrernte person belongs to the group of people of his or her own generation and all others who are an even number of generations away. The term nyurrpe refers to people in the generations immediately above or below one's own, as well as to others who are an odd number of generations away. A person is in the same generation group as his or her siblings, cousins, grandparents and grandchildren but call his other parents, aunts, uncles, children, nieces and nephews nyurrpe.

17. Arrernte people employ a range of kin terms to refer to particular relations. These terms are egocentric in that the relationship expressed by a term is always relative to the speaker or some other point of reference; e.g. `my mother', `her granny', `that man's sister' etc. Anthropologists conventionally call the system classificatory. The skin terms cover a wide range of relatives who are regarded as equivalent; e.g. one's mother's sister is called by the same term (meye) as one uses for one's mother. While Arrernte classifications may conflate several relationships which English does not, they also sometimes distinguish relatives from each other where English conflates them. For example, there are four different grandparental terms in Arrernte - arrenge (father's father), aperle (father's mother), atyemeye (mother's father), ipmenhe (mother's mother). Such distinctions reflect certain social distinctions between different sides of a person's family.

18. Whilst what in English is called `biological relationships' are understood by Arrernte people as one kind of recognised relationship, so too is adoption which is a normal part of Arrernte kinship practice and is critical in understanding the position of many children of mixed-race parentage who have been incorporated in Arrernte society. T.G.H. Strehlow (1969:109) wrote that any woman who was abandoned by her non-Aboriginal partner and became the spouse of an Aboriginal man could expect the man to

become a perfect foster-father to her children, always looking after them as though they were his very own. For in the Aranda-speaking area of the Centre ... any man who lived with a woman was looked on as her properly married husband; and he was expected to regard and treat every one of his wife's children, irrespective of their actual parentage, as his own progeny. (quoted at Morton p 22)

19. There are different pathways by which people may claim rights in estates. One is through patrifiliation and patrilineal descent. (Patrifiliation refers to being associated with one's father; patrilineal descent refers to a principle of inheritance through the male line). Dr Morton says (at p 24):

An Arrernte estate may be known as peltharre/kngwarraye country, penangke/pengarte country, angale/ampetyane country or perrurle/kemare country. For example, the town of Alice Springs contains part of three estates designated in this way: Mparntwe, which is peltharre/kngwarraye; Antulye, which is penangke/pengarte; and Irlpme, which is angale/ampetyane. In general terms, people might say, for example, that peltharre/kngwarraye country does not extend beyond this creek or that hill: or they may say that penangke/pengarte country extends only so far along one of the longer Dreaming tracks, at which point responsibility for the Dreaming is handed over the another group, possibly of another patricouple. Whilst there is not necessarily complete consensus in the landholding group concerning the exact location or limits of estate boundaries, it is obvious that such estates are defined by law and that they are tied to some notion of patrifiliation or patrilineal descent coded in the use of subsection terms.

Members of patrilineal descent groups are often called apmereke-artweye, a term which Dr Morton describes (at p 25):

The word apmereke-artweye is derived from the words apmere meaning place, and artweye, which has a range of meanings covering concepts of ownership, belonging and relationship ... Apmereke-artweye are holders of an estate and have particular responsibilities for looking after it and authorising what goes on there, although this is always done in terms of ancestral precedent. This implies a relationship between current apmereke-artweye, the ancestors themselves and the landscape in which they have come to be embodied. People who are apmereke-artweye refer to the estate as their own country ... Apmereke-artweye have most often inherited their estate from their father and father's father or by some corresponding agnatic link (e.g., through their father's brother or father's father's brothers). Ultimately, these patrilineal links go back to the original ancestors themselves, although there may not necessarily be a hard and fast distinction drawn between a human ancestor and an ancestral totemic figure. For example, both might be called arrenge (father's father). This underscores the identification of actual relatives with the ancestral figures who created the country and are still embodied there. However, it is important to note that, while the status of apmereke-artweye is strongly associated with patrilineal descent, in itself the term does not literally suggest patrilineal connection to an estate. Rather, it simply stresses possession and belonging.

20. While apmereke-artweye are often designated as owners of an estate, they take care of it in partnership with others known as kwertengerle. The English term "boss" is sometimes applied to apmereke-artweye but may also be used for kwertengerle. Other English terms used to convey the meaning of kwertengerle include `manager', `boundary rider', `policeman' `spokesman' `prime minister' and `fixer'. Dr Morton says (at pp 26-7):

Kwertengerle may intimately know the Dreamings for an estate and take the lead in discussions about it or during visits to sites. While apmereke-artweye have notional seniority, they often stay `behind' kwertengerle in a gesture of modesty, since it is the role of kwertengerle to check that apmereke-artweye look after an estate according to the dictates of the law. Kwertengerle are involved in ceremonial activity with apmereke-artweye and hold the Dreamings in a similar, but not identical, way to their partners. Their sense of entitlement is as strong as that of apmereke-artweye and their rights and interests are well defined.

...

One's kwertengerle are often drawn from the opposite patrimoiety, although the role can be undertaken by others. While the apmereke-artweye link to an estate emphasises continuous patrilineal descent, kwertengerle are primarily thought of as matrifiliates - the children of women patrilineally connected to the estate. The role may in turn be acquired by those children's own children. So, just as apmereke-artweye have strong descent ties to the estate of their arrenge (father's father), others have kwertengerle responsibilities for those estates when related to them through their atyemeye (mothers' fathers), aperle (fathers' mothers) and ipmenhe (mother's mothers).

While a person's connections to, and rights in, all four grandparental estates are held simultaneously, those connections tend to be more or less ranked in people's minds. One belongs first to the estate of one's father's father; second to the estate of one's mother's father; third to the estate of one's father's mother; and fourth to the estate of one's mother's mother. However, there may be exceptions to this ranking system based on factors such as knowledge, seniority and long term residence.

21. The concept of descent is conventionally understood to include genetic connection or something comparable, e.g. adoption, but descent is not the only factor by which an interest in an estate may be acquired. There is also the important process known as `conception'. In this context conception does not refer to the moment of fertilisation, but rather to what is believed to be the entry of an ancestral spirit into a women to animate the child with which she is already pregnant. This occurs some months into the pregnancy and may be indicated by the child's quickening in the womb. The animating force is one of the many spiritual `fragments' left behind in the landscape by a totemic ancestor. Conception links a person not only with a Dreaming and its track, but also with a place on the track where a particular ancestral event took place. This place is often referred to as the `conception site'. A person retains a life-long association with his of her conception site and Dreaming. On this topic Dr Morton says (at p 28):

The kind of ancestral connection, and thus the nature of rights and responsibilities to land, established through conception depend largely on the following factors: the place where it happened (and therefore the Dreaming tracks which are nearby); the kinds of events which may have accompanied it (like a vision, a peculiar reaction to food, or some strange behaviour by an animal); and the intentions of senior kin (who may, for example, wish to maximise children's life chances by associating them with prominent ancestral figures).

and (at p 30):

Conception, then, can be a very significant feature of rights and interests in land, since it is possible to make a strong claim on land associated with one's conception site. However, these rights and interests do not stand alone. A claim based on a conception site must be reasonably consistent with other connections to the estate through associations with the estate's apmereke-artweye and kwertengerle. The success of conception claims depends on support given by members of the landholding group (apmereke-artweye and kwertengerle) who know the Dreamings of the estate most closely. Conception might support anything from full membership of the landholding group, including the ability to pass on rights and responsibilities to one's children and grandchildren, to more limited recognition, like that of the right to camp on an estate. Such limited recognition does not stem from holding the estate in question. In such cases there is public recognition that a person really belongs elsewhere (`father's country', `mother's country', etc.).

22. It follows from what has been said about connection to a Dreaming through conception that not everyone with an interest in an estate can be regarded as a landholder of that estate. A similar situation applies in relation to people who are connected to an estate by a Dreaming track which crosses the estate. Sometimes these connections are relatively strong but the fact that a Dreaming crosses an estate does not necessarily mean the landholders of that estate are most closely connected to the Dreaming which may be more closely associated with a group, or groups, further away. Sometimes a Dreaming which travels over a particular country has no local sites. In such a case it may be referred to as `just travelling' and the lack of traces of it on the landscape might be explained by descriptions of the ancestors travelling under the ground or high in the sky. Dr Morton says (at p 31):

People connected with Dreaming lines to an estate can and do assert rights and interests in that estate, but, as with conception, the degree to which such rights and interests are realised depends on negotiation with members of the landholding group (apmereke-artweye and kwertengerle). In other words, interests in estates through Dreaming connections do not, in themselves, confer membership of landholding groups.

In many cases, one will hear Arrernte people say that far flung Dreaming connections merely represent an `outside' interest, perhaps described as `only Dreaming'. The point may be underlined by stating where a person invoking such connections might really belong: `He belongs at Tempe Downs'; `That mob have got to go back to Harts Range'; `Her father comes from the Waterhouse Range; that's her country'. Clearly, then, outside interests can remain just that and are the outcome of the landholding group's right to more or less exclude people from local affairs. Nevertheless, these `outside' interests are a significant aspect of Arrernte law.

Depending on relationships negotiated with the landholders, a person with a relatively distant Dreaming connection may come to be recognised as an import kwertengerle for an estate.

23. Knowledge of Dreamings is generally distributed throughout a local population; it is largely open and may extend some way beyond the landholding group. Dreamings also have sacred objects, songs, designs (`paint') and dramatic acts associated with them, which the ancestors have left behind for their heirs to inherit. Some aspects of this inheritance is public, openly held and celebrated by men and women, and taught to children in the Arrernte community. Other aspects are restricted to either women or men. While both men and women have their own `sides' in relation to this knowledge, they speak for their land as a coherent group of senior landholding group as a whole. They are obliged to reproduce their own structures of authority and teach younger members of the groups as considered appropriate. The younger members of the group thus progressively acquire this knowledge and hold it for future generations.

24. Particular members of an estate take special responsibilities for Dreamings with which they are most closely connected by descent or spiritual affiliation. Although members of an estate have a mutual focus on a main site, the site may be connected most closely with a particular person, generally the most senior leader and spokesperson for the group. Ideally, seniority arises from primogeniture. Thus most senior apmereke-artweye or kwertengerle should be the eldest in a sibling set, but this may not necessarily be so, depending upon the personal or political histories of the people involved. Other senior people in the group may have particular connections with other sites on the estate, with the result that estates can be pictured as being divided into smaller areas of influence associated with particular Dreamings and site complexes. The coherence of an estate depends upon the coherence of its apmereke-artweye and kwertengerle. In situations of demographic and/or political pressure the coherence of a larger descent group, comprising many lineages, can be broken, with the estate fracturing or altering its configuration as a result. On the other hand, landholding groups may also coalesce if the circumstances are right. For example, if the apmereke-artweye are of the same skins, adjacent groups may become involved in ceremonial and other co-operation and come to view themselves as one family belong to a single estate.

25. At p 37 of his report Dr Morton provides the following summary:

Arrernte laws and customs relating to rights and interests in land in Alice Springs and nearby areas can be summarised as follows:

* People and land are integral to each other.

* The relationship between people and land is grounded in the Dreaming.

* The Dreaming comprises narratives which define particular areas of the land (estates). Arrernte people organise their relationships with each other and to land in terms of `kinship', described as: a) subsections; b) moieties; and c) kin relatedness (consanguinity and affinity).

* Estates are associated with subsection patricouples and people patrilineally connected to the land (apmereke-artweye).

* Apmereke-artweye are in partnership with kwertengerle. The latter are typically related to an estate and its patriline through matrifiliation and cognatic descent. This partnership defines the general character of a group holding an estate.

* People with conception ties to an estate may be recognised as members of the landholding group, but this depends on acceptance by senior people in the group and the subsequent transfer of requisite knowledge.

* People with Dreaming connections to an estate have outside interests in that estate, but factors such as long-term residence, possession of knowledge and involvement in the affairs of the estate can convert outside interests into close kwertengerle ties with the landholding group.

* Landholding groups have an authority structure defined in terms of age, gender and the distribution of knowledge. Senior landholders of an estate represent all others in their group.

* The landholding group as a whole is subject to lawful transformation in terms of both its internal structure and its position in a larger regional framework.

THE RESPONDENT'S OPENING STATEMENT

26. Senior counsel for the applicants (Mr Keon-Cohen QC) opened the applicants' case at Alice Springs on 1 July 1997. Following the opening the Court was taken to Anzac Hill, a vantage point close to the city centre, from where a general view of many parts of the claimed area was obtained. Some brief explanatory evidence was given. At the commencement of proceedings on 2 July 1997 the Solicitor-General for the Northern Territory (Mr Pauling QC) made the following statement (t 67-69):

MR PAULING: . . . Following Mr Keon-Cohen's very helpful opening statement in this claim and the welcome from Rosie Ferber, it is appropriate that I make a statement on behalf of the Northern Territory Government. This claim is made by Arrernte people to Arrernte country. It is no part of the case we seek to make that the Alice Springs area has no-one who, in Aboriginal terms, are the traditional owners or that it is not Arrernte country.

Mr Keon-Cohen was quite right to draw attention to the words on the plaque at the Desert Wild Life Park acknowledging that since time immemorial the area of the Alice Springs Desert Park has been occupied by the Arrernte people. It was also quite right to draw attention to the fact that there are very many sacred sites registered by the Aboriginal Areas Protection Authority under the strongest and best sacred sites legislation in this country. The Government totally supports this Authority. It is no part of our case that the applicants have to prove over and over again matters of skin, sub-sections and kinship terms, although obviously there will be a good deal of that type of evidence because this is a big part of identification with country.

To understand our position on this claim, it is necessary to understand how the applicants' case at its highest is put. It is a claim to the exclusive ownership and the exclusive use and benefit of all of the land claimed, all of the resources in and on it, the sub-soil, and to the water under and on it, as well as the airspace above it. Nothing is left out. No-one knows yet, because no court has yet decided, whether all of these things can legally be claimed. Obviously, the claim to subterranean water is a matter of concern as it involves the Alice Springs water supply. We say it cannot be claimed.

There are also many places where we say that native title must have been extinguished. It will be argued that, unlike Wik, the grant of pastoral leases in the Northern Territory did extinguish native title. This is because of the very different historical, legislative and administrative background including the fact that when the Commonwealth took over the administration of pastoral leases, reservations in favour of Aboriginal inhabitants permitting hunting, gathering and camping on pastoral leases were deliberately removed because of concern, it would seem, that such persons might camp near made (sic) waters and disrupt the work of the pastoralist, presumably by frightening cattle away from the source of water.

This, however, has to be legally argued out. It says nothing about suggesting that in traditional terms and traditional ways Arrernte people are not the right people or the appropriate people for Alice Springs. It is a legal issue. It arises because of the Native Title Act and because of some parts of the common law.

The next issue that needs to be decided concerns the legal effect of the Aborigines Ordinance and the declaration of Alice Springs area as a prohibited area. Mr Keon-Cohen mentioned that on three or four occasions. Did this extinguish native title? No-one at this stage knows. Again, what was the legal effect of the military occupation of Alice Springs during the second World War? This is another matter that needs to be carefully looked at.

The next matter is the grant of leases in the town where houses were built and fenced that have since been pulled down. A very good example of that are the two lots on the corner of - two of the four lots on the corner of Stott Terrace and Hartley Street. One of those lots was previously home to the Aboriginal Congress. The other had housing built upon it, and indeed, part of the evidence that will come in is an aerial photograph of the town taken in 1955 which shows these lots with houses on them. So that a legal argument arises then as to whether or not those town leases conferred a right to exclusive possession upon the leaseholder because, if it did, then on any view of the law as it presently is, it may have extinguished native title. This is consistent with Mabo and it is consistent with Wik.

There are many places claimed which were the subject of very intensive use before and during and after the war to the exclusion of all others, including the Arrernte people. And Mr Keon-Cohen read out part of a list that is in our statement of facts, issues, and contentions, involving a piggery, and an explosives factory, and all of these sorts of things. So there is evidence that will be given about that land use, and your Honour as a matter of law is going to have to decide questions of extinguishment. So we have to present that evidence and argue that. None of this, however, involves a denial that this is Arrernte country, nor does it involve a denial that consultation and recognition is very much a part of the relationship between the Northern Territory Government and the Arrernte people.

The anthropologist's report in this case suggests many ways people could claim to be native title holders, and I want to talk about that because we have some difficulty there. The first claim is apmereke-artweye or those whose fathers were acknowledged owners, and we do not have any argument at all about that. The second is kwertengerle, and subject to the evidence we hear about that, we do not think that is a problem. But the more distant claims we dispute for it must be remembered that the decision in this case, subject to any appeal, will set a precedent under this new Act, and it is a very different Act to the Aboriginal Land Rights Act. This is but one claim of many, and the rules have to be set right at the beginning. The Northern Territory Government as the land administrator has a duty to the people of the Northern Territory, both Aboriginal and non-Aboriginal, to do all it can to see that the rules are right.

The next big issue is: what exactly are native title rights? The High Court did not tell us in Wik. The evidence in this case will tell us what laws, customs, practices, and traditions, stretching way back, are still acknowledged and observed, and the question will then be whether they are integral to a distinctive culture or only a description of how people live. This is a very difficult legal matter and we will test the evidence to see what the result will be. It may be that the High Court will have to decide the legal questions in the end as they were asked to do in both Mabo and Wik.

So these are some but not all of the matters that need to be decided by your Honour. We will be as helpful and co-operative as possible, including sharing information about land tenure with the Court and the applicants' lawyers, and indeed, we look forward to an opportunity to display to you what this computer can do because, for the first time, we have this resource and it can answer questions very quickly about land matters and, where difficulties arise, we will do all we can to save time and money by working things out, not only between the lawyers, but with the Court.

I want to say to the Arrernte people that we are very happy to be here in this beautiful and fascinating Arrernte country. We are here because there are many legal and factual matters to be decided. These decisions are necessary because the Act is new. No-one, including Mr Keon-Cohen and Mr Howie, know yet what it all means, and it is important that we all get it right. If native title has, on the evidence, been extinguished, we will say so, and we will put forward arguments about pastoral leases, other grants, land use and legislative and administrative acts which affect native title. That is our job in this claim, but there is no reason that we cannot enjoy the process together and conduct these proceedings with good grace and friendliness because we look forward very much to hearing more about Arrernte country and Arrernte tradition.

27. Following this statement evidence was called from members of the claimant groups over a period of 15 hearing days in the month of July 1997. The Court then adjourned until 9 February 1998 to accommodate the convenience of counsel who were involved both in this and another proceeding in the Court. Further evidence was given by Aboriginal witnesses on 9 hearing days in February 1998. In total, 48 members of the claimant groups gave evidence. The Court resumed on 2 March 1998 when the applicants called Dr J K Henderson, a linguist and Dr Morton. Dr Morton's evidence-in-chief commenced on 2 March 1998 and continued on 3 and 4 March. At the commencement of proceedings on 3 March 1998 the Solicitor-General for the Northern Territory, by leave, made the following further statement (t 1695):

MR PAULING: Can I, before Mr Howie resumes questioning, say something, your Honour. Your Honour, if as we heard yesterday Dr Morton does not resile from the views he has expressed at the various pages he was taken to, including ranking as between father's father and so on down the line, that is pages I think 24, 25, 26 and 27 of the report, and assuming that apmereke-artweye does not literally suggest patrilineal connection to an estate because it may relate to a Dreaming or a totem or something that is not estate bound, then we have no argument with what Dr Morton's said so far.

And we invite - and I have already discussed with Mr Howie, so I know what his answer is going to be - for the record we invite them, if that be the case, if the evidence were to stop now, there would be no submission from us, at the end of the day, that there were no persons identified as capable of being the holders of native title in respect of Arrernte country. In others words, in brief, we are saying, as we said at the start, that the model is the narrow model, as it has come to be called from time to time, we have no quarrel with that at all. If it is sought, and one knows from experience how it happens that people come along and say, "Well, I'm a traditional owner," to use a bit of Aboriginal English, "when am I giving evidence?" And you say, "Well, you don't fit our model." "No, no, when am I giving evidence?" So that one can see how things are led. But what we are saying is - since I know the answer I will not go on with it - briefly that if the evidence stopped at this point, then step one that provided it is the narrow model is not contested.

THE TRADITIONAL LANDS

28. Before proceeding to a consideration of the evidence relating to the identification of the native title holders, it is appropriate to observe that there is no dispute that the whole of the claimed land is part of the country recognised as the traditional land of the ancestors of the members of the claimant groups at and prior to the settlement of that land by non-Aboriginal people.

THE NATIVE TITLE HOLDERS

29. In response to the Solicitor-General, Mr Howie (for the applicants) indicated that the applicants intended to proceed with Dr Morton's evidence and that it would be submitted that members of the claimant groups who are related to their respective estates by reason of relationships other than through their arrenge (father's father) and atyemeye (mother's father) are members of the landholding groups entitled to native rights and interests in those estates. The two statements made by the Solicitor-General and the response of the applicants' counsel clearly indicate that at issue between the parties is whether, in the event that native title rights and interests are found to exist, the respective landholding groups should extend to those who claim rights by descent from any one of their four grandparents (as the applicants assert) or be confined to those whose claims are through either their father's father or their mother's father.

30. The evidence establishes that there are groups of Aboriginals who claim and exercise communal or group rights and interests in relation to one or more of the estates which comprise the land and waters the subject of the application. That is not in issue, nor is it disputed that the rights and interests in question are possessed under laws and customs acknowledged and observed by the Arrernte people of the Alice Springs area and that those laws and customs are derived from laws and customs passed down from the ancestors of the present claimants. The changing social and political environment arising from European settlement has undoubtedly given rise to some modification and adaptation of the old laws and customs, but that is not to say that the laws and customs as presently acknowledged and observed are other than the traditional laws and customs of the claimant groups.

31. Whatever relationships may, in former times, have entitled a person to claim the status of apmereke-artweye or kwertengerle, there is presently no uniformity of understanding amongst those members of the claimant groups who gave evidence. In the early stages of the hearing it seems that the evidence tended towards the proposition that descent from one's arrenge was required for the status of apmereke-artweye and from one's atyemeye, for the status of kwertengerle. This is the thrust of the evidence of the earlier witnesses who were mainly the senior members of the claimant groups. In later evidence, given mainly by younger claimants, descent from any of one's four grandparents was asserted to be sufficient to give rise to rights in relation to an estate. And it may well be that there is no necessary conflict between these two assertions; it all depends upon the nature of the rights asserted. The Native Title Act recognises that native title rights and interests include hunting, gathering, or fishing, rights and interests, that is, rights which may be purely usufructuary and exercisable without the need for any proprietary interest in the land or waters over which they may be exercised. By way of analogy, reference may be made to the Aboriginal Land Rights (Northern Territory) Act 1976 under which a finding that there are traditional Aboriginal owners of land is necessary before a grant of title can be made to a Land Trust, but once a grant is made the land is held for the benefit of "Aboriginals entitled by Aboriginal tradition to the use and occupation of the land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission" (Land Rights Act s 11(4)). In the context of the Native Title Act it would appear that a traditional right to hunt, to gather or to fish on an estate with the permission of the land holding group would amount to a native title right or interest and entitle the person concerned to recognition as a native title holder

(s 224(b)). Be all that as it may, in the event that it finds that native title exists, the Court is charged with the task of identifying the persons or group of persons who hold the native title rights (s 225(a)). It would be impossible in a case such as the present to name all of the relevant individuals and it would be a useless exercise to do so. With the passage of time the composition of the group will change as senior members pass on and new members are born. The concept of native title is not confined to what may be termed ownership or traditional ownership of land but rather extends to all traditionally based rights and interests in relation to the particular area in question.

32. The respondent asserts (final submissions, para 49) that it is only possible to identify as the holders of native title those people who, at their discretion, have control of all other persons' rights and it is said that under the "expansive" model (as distinct from the "narrow" model referred to in the Solicitor-General's statement on 3 March 1998) advanced on behalf of some claimants a very valuable right, that is the right to deny recognition to others, would be diluted out of existence if all Arrernte descendants were to have equal native title rights and interests. The respondent's submission (para 50) is that "the traditional owners" of the estates are those who claim country through their father's father and are apmereke-artweye and those who claim through their mother's father and are kwertengerle plus those who obtain kwertengerle status through authorisation from this group. Such a formula would be a very convenient means of expressing the position if native title rights and interests are equated with "traditional ownership" of land but this is not the case. As native title rights and interests may extend to rights and interests which lack any proprietary element the concept of "traditional ownership" is not appropriate to describe "native title rights and interests" as defined in the Native Title Act. The Act makes no distinction between those rights and interests which on the one hand may confer a status equivalent to ownership and those which on the other hand are purely usufructuary or indeed are merely permissive. On the basis of the material presented in this case the appropriate description of the native title holders of the estates of the claimant groups is those Aboriginal persons who are descended from the original Arrernte inhabitants of the Mparntwe, Antulye and Irlpme estates who are recognised by the respective apmereke-artweye and kwertengerle of those estates under the traditional laws acknowledged and the traditional customs observed by them as having communal, group or individual rights and interests in relation to such estates.

33. Paragraph (a) of s 225 of the Native Title Act contemplates that a determination of native title will identify "who the persons, or each group of persons, holding the common or group rights comprising the native title are". I do not regard this provision as requiring each individual member of a group of persons found to hold native title to be identified by name. Such a requirement would be impossible to fulfil and even if it were possible to name each individual comprising the group at the time the determination is made, to do so would be meaningless as the composition of such a group will inevitably be in a state of flux as senior members pass on and as new generations emerge. In my opinion a description of the type suggested in the final sentence of the preceding paragraph is sufficient to satisfy the requirement of

s 225(a).

TRADITIONAL LAWS AND CUSTOMS

34. The applicants' written submission on native title issues dated 12 June 1998 asserts in paragraph 11.6 that under the traditional laws acknowledged and the traditional customs observed by the Arrernte people the members of the three estate groups have the right to possession, occupation, use and enjoyment of the land and waters of their respective estates to the exclusion of all others; and in paragraph 11.7 that under the traditional laws acknowledged and the traditional customs observed by the Arrernte people the members of the three estate groups:

(i) have the right and interest of possession, occupation, use and enjoyment of the land and waters of their respective estates;

(ii) have the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates;

(iii) have the right and interest of ownership of the natural resources of the land and waters of their respective estates, and the right to use and enjoy those resources;

(iv) have the right to give or refuse permission to non-members of the estate groups to occupy, use or enjoy the land and waters of the respective estates, or to use and enjoy the natural resources of that land and waters;

(v) have the right to make decisions about the use of the land and waters of their respective estates;

(vi) have the right to protect places and areas of importance in the land and waters of the respective estates;

(vii) have the right to manage the spiritual forces and to safeguard the cultural knowledge associated with the land and waters of the respective estates.

35. On the basis of the claimed rights and interests the applicants seek the determination to which reference is made earlier in these reasons. Although there is a degree of inconsistency between the exclusive right asserted in paragraph 11.6 of the submission and that asserted in subparagraph 11.7(i), I will assume that the applicants' primary claim is to exclusive possession, occupation, use and enjoyment of the claimed land, a claim which is repeated in a modified form in subparagraph (c) of the proposed determination. I have some difficulty in understanding the full import of the claim in paragraph 11.7 (ii) of the submission (which is repeated in the proposed determination) to be acknowledged as the "traditional Aboriginal owners" of the claimed land and waters. In the Land Rights Act the term "traditional Aboriginal owners" has a special and defined meaning but it is not a term which is found in the Native Title Act, and if it is intended to be equated with "native title holder" (defined in s 224) or "common law holders" (defined in s 253) then it would be preferable to use those terms which have a meaning in the context of native title law.

36. Before embarking upon a detailed consideration of the claimed native title rights and interests it will be convenient to make reference to the evidence of a number of the senior claimants. It is a consistent feature of the evidence that witnesses assert that their knowledge of their traditional laws and customs has been, and continues to be, passed down from earlier generations. This being so, it is logical to assume that the senior generations of the claimant groups can provide the most reliable evidence of traditional laws and customs. In the following paragraphs selected passages from the transcript of the evidence of a number of witnesses will be quoted. It is not intended that this treatment of the evidence should be regarded as an exhaustive analysis of all of the evidence given in relation to the specific topics considered but rather to be indicative of the general thrust of the totality of the evidence in relation to those issues. The only significance in the order in which the various witnesses are dealt with is that they are in the order in which they were called.

37. Frank Stevens was asked a series of questions concerning the right of different people to live in the claim area. His evidence was (at T 165-6):

Q. Now we have talked about town camps on Mparntwe country, Frank, some of them Arrernte people, some of them are people from other languages. If people from other languages, Pitjantjartjara or Warlpiri, Anmatyerr want to camp on Mparntwe country.

A. They are already here.

Q. They are already here?

A. We can't talk now.

Q. By your law what should happen if they want to camp on your country.

A. We still can't talk, but now we got some family link - linkage.

Q. Family linkage with them?

A. We can't talk now.

Q. I just wanted to be clear about your traditional law, about Mparntwe. If people from outside wanted to camp on your country, what should they do?

A. In the old days, you could never come in on other people's country.

Q. And now should they ask permission?

A. Look at this, we civilised now. The altyerre is here all the time, no matter we got trousers and shirt, clothes, that culture has got to be there all the time.

38. Rosie Ferber Ampetyane, a senior kwertengerle for the Mparntwe estate was asked by Mr Howie (at T 214-215) what rights and obligations Arrernte law gave her in Mparntwe country but her initial answers were not responsive to the question. However, after the intervention of the luncheon adjournment the following exchange took place between counsel and the witness (T 216-217):

Q. Now, Rosie, I was asking you before the luncheon adjournment about Mparntwe country and about your Arrernte law and about what rights that law gives you in Mparntwe country and I think you have told us that, for that country, you belong to it, that you are kwertengerle for it, that you are apmereke-artweye through your mother, and that she was apmereke-artweye, and you have told us that your spiritual totems are in the country. I just want to ask you a little more about the rights that you have in Mparntwe country. In the evidence that you have given today and yesterday, you have spoken of camping and living at various places, at Inernte-akerte which is site 16, at Uyenpere Atwatye which is site 51, at Kere Kwatye, site 23, at Ilperle Tyathe which is site 7, at Werlatye Atherre which is site 9, at Mpwetyerre which is site 44. They are just the ones that I can think of for the moment. There may be others. But they are different places you have camped on in Mparntwe country. When you have been living at those places, have you had the right to live there by your law, or not?

A. That question, in my view, my answer to that - that is my family have been living here for generation to generation and not moving away to other countries that belong to other tribes. Arrernte people have been living here always and never moved away from here and that gives me the right to be here and - and I should be fighting - fighting for this land and that gives me the right. I should be looking after the sacred sites, looking at the land itself, when developers wanting to take a bit of land away from us again and looking at it my way. Looking at Mparntwe now is like watching yourself being torn apart, and I've been emotionally free to talk - talk with this land and that gives me the strong right through my culture - to look after the land the way the old people looked - looked after it. And when they were living here none of the tribes would come in here without permission from the old people. And inwardly, I look at it that way and I think that gives me the right to be - talk for Mparntwe.

Q. And if you have got that right to be here and talk for Mparntwe, do you also have a right to use Mparntwe land?

A. Mparntwe is my country. I'm - I've got the right to go around Mparntwe area looking for what I - what I can get from it in ways of tucker and meat and looking for water - and which places to go back with my kids and show them the things that I want to show them. That - I think that gives me the strong point to be - and talk about Mparntwe.

Q. All right. Yes, thank you, Rosie. That right that you have Rosie, will somebody else take over those rights as you get older and move on?

A. Yes, we got - we got out kids to take over from us. That's my nieces, nephews and grandchildren and my kids.

Q. And the rights that you have spoken of: where do they come from?

A. The rights to speak for Mparntwe is passed on from generation - from generations down to this day and will go on.

Q. And where do they come from in the first place?

A. Altyerrenge-ntyele.

39. Thomas Stevens enjoys the dual status of apmereke-artweye for the Mparntwe estate and kwertengerle for the Irlpme estate. He too was asked about the rights in Mparntwe country (T 305):

Q. When you are living at Inernte-akerte, whose country were you living on? Whose country were you living on there?

A. Our country, Mparntwe.

Q. When you got the water from the creek, did you have the right to do that?

A. Yes, I had the right.

Q. Where did that right come from?

A. Come from my grandfathers.

Q. From your grandfathers. And when you were getting bush tucker in that area, did you have the right to do that?

A. Had the right. Right - - -

Q. Where did that - sorry, I interrupted you?

A. Had the right. Right from my grandfathers countries, Mparntwe.

40. When Patrick McMillan, another senior Mparntwe kwertengerle gave evidence at a site known as Ilperle Tyathe (otherwise the Warlpiri Camp) near an area which is registered with the Aboriginal Areas Protection Authority, the following exchange took place. (T 328-9):

Q. By your Arrernte Law, what can you do here; that group of people that you have spoken of, what can you do here?

A. Well, I'd look after it and protect the place.

Q. You would look after it and protect it?

A. Yes.

Q. If you wished to, by your Law, is this an area where you could camp and walk around?

A. Yes.

Q. What else could you do here, by your Law?

A. Go hunting here somewhere.

Q. You could go hunting here?

A. Yes.

Q. Is there - can you still hunt here now?

A. No.

Q. What (sic) is that?

A. Don't have to worry about walking about now.

Q. Yes, Are there still kangaroos or euros here?

A. Yes, some euros here.

Q. Have you got the right to go hunting them here?

A. Yes.

Q. In earlier days, did people camp here?

A. Yes.

Q. Did that include Mparntwe people?

A. All mixed up, yeah.

Q. All mixed up. Yes. All right. What about bush tucker; can you get bush tucker here?

A. Yes.

Q. What sort of things?

A. Those alangkwe.

Q. Right. What about the soakages that were here; do you have the right to get water from those soakages by your law?

A. Yes.

Q. When you get older, Patrick, who will take over this country?

A. My family.

Q. Which people?

A. My sons and daughters.

Q. Yes. Just by themselves?

A. They got to have some kwertengerle somewhere.

Q. All right. And will they take over that country took, round here?

A. Yes.

Q. Who will teach the next generation about this area; who will tell them about the places and the soakages and the bush tucker, and the Dreaming, those things?

A. I'll tell them. I've already told them anyway.

41. Robert Stuart first gave evidence at the site known as Akngwelye Antere (site 38) which is to the west of the town close to the Alice Springs Desert Park. In the course of describing his hunting and gathering activities he gave the following evidence:

Q. And when you were doing that on whose country were you travelling by your traditional law?

A. Mparntwe.

Q. And which people belonged to that country?

A. The Arrernte Mparntwe.

Q. Did you have any understanding then of your relationship to those people?

A. Yes.

Q. Who did you get that from?

A. From my father.

Q. And what did he tell you about that?

A. I can't understand the question.

Q. What did he tell you about your relationship to this country, your father, as to whose country it was or how you were related to it; that sort of thing?

A. I think he said to me by altyerre.

Q. And what did you understand that to mean?

A. At the beginning.

Q. Well, when you came here, Bob, did he - when you came here did you have a right to come here and hunt in that way?

A. I believe and still do believe that I've still got the rights.

Q. And where do those rights come from?

A. From altyerre.

Q. And you say you believe and still believe that you have them. Is it only you personally who has them?

A. The rest of the Mparntwe Arrernte.

Q. And are they the same group of people that we have heard about during this last week?

A. Yes.

Q. If you wished to by that Arrernte law, would you have the right to live out here?

A. Yes.

(T 379)

Q. Do you still come out here, Bob?

A. Where can I go?

Q. Well, into the valley. Can you go into the valley now?

A. Yes, if I wish to.

Q. What gives you the right to do that?

A. By altyerre by Mparntwe law.

Q. And if you wished to, could you continue by that law to go hunting there?

A. Yes.

Q. Are there complications if you wanted to do that now?

A. Yes.

Q. What is the complicating factor?

A. The buildings.

Q. Yes?

A. And the restrictions.

Q. Are there restrictions from the desert park?

A. Yes.

Q. What are they?

A. $12 fee.

Q. And if you paid the fee would you be able to hunt in the park?

A. No.

Q. Even with a pea rifle?

A. That's so.

Q. These places that are registered as sites here at Akngwelye Antere, this Dog Rock over here, and probably this other hill here, as I understand it, out at Taylor Street, which people took action to have those registered?

A. Mparntwe Arrernte.

Q. And do you know which people did that?

A. Yes, Frank, Thomas, myself, of course, Rosie, the Arrernte people.

Q. And why did you take that action?

A. Because we were threatened.

Q. What was threatened?

A. Development.

Q. And what was development threatening?

A. Sacred sites.

Q. And by your Arrernte law was that the right group of people to speak for this area?

A. Yes.

Q. Yes, thank you. Are there any soakages or creeks in this area?

A. Yes.

Q. Where are they?

A. One's flowing just past us - just behind me.

Q. Just behind you. So that is to the south-west of where you are, what, going back towards the range?

A. Comes off the range.

Q. Yes. How do you know of that soakage?

A. I was shown it.

Q. By who?

A. By my father.

Q. And when you were there with your father did you get water from it?

A. Yes.

Q. How did you do that?

A. Digging with a yam stick.

Q. And the water would just soak in, would it?

A. Soak up.

Q. Yes, all right. And did you have the right to get that water by your law?

A. Yes.

Q. The knowledge of this - your connection here and of the altyerre here, you say you have got it from your father. Who will take it in future generations, that knowledge?

A. My sons, yes.

(T 382-3)

42. Later, after the Court had returned to the main hearing place Robert gave further evidence, including:

Q. Were you told that you were conceived at Anthelke Ulpaye or near Ntyarlkarle?

A. Practically on the banks of the Todd River.

Q. All right. The fact that that is your conception place, does that in itself give you rights in Mparntwe country?

A. Yes.

Q. Rights of what kind?

A. Right, I suppose, is to call your home.

Q. Yes?

A. The rights to hunt or forage. The rights to protect the place.

(T 406)

Q. All right. Now Bob, you have told us this morning and this afternoon about Mparntwe country and how you get that country. You have told us something of the laws and customs of Mparntwe people; can you tell the court now whether those laws and practices of Mparntwe people give you and the other people that you have mentioned, any rights in Mparntwe land?

A. Yes.

Q. What are those rights that you have by that law?

A. To live, to forage, to hunt, and to own the land.

Q. Have you been exercising rights like that on that land according to your law throughout your lifetime?

A. Yes.

Q. Did your father do it before you?

A. Yes.

Q. Where are you living now?

A. 32 Spearwood Road.

Q. And is that a street in the newer development on the east side of town?

A. Yes.

Q. When you are living there, on whose country are you living?

A. Well, it's certainly not - how can I put it. It's a Housing Commission house.

Q. Yes?

A. It's owned by the Northern Territory government.

Q. But whose country is it according to Arrernte law?

A. It's Mparntwe land.

Q. And you say you have got - you had a right to live there and hunt and forage; what other rights do you say you have according to that law?

A. The rights to protect our sacred sites.

Q. Yes. Are your rights confined just to the sites?

A. No.

Q. What rights do you have to land that is not where the particular site is, but is still Mparntwe land?

A. We - I believe we still have the right.

Q. To do what?

A. To own land.

Q. Yes. If there was to be development on that land, Mparntwe land, according to Arrernte law, what should happen?

A. Permission should be sought.

Q. Yes. From whom?

A. From the custodians, the Mparntwe people.

Q. And by your law, what rights would you have if permission was sought?

A. The rights to say no.

Q. Yes. Only the right to say no?

A. I'll come on with the other one.

Q. Pardon?

A. I'll come on to the other one.

Q. All right. Keep coming then?

A. The rights to say no.

Q. Yes?

A. And if whoever wishes to come back, he's to sit down and negotiate.

Q. All right. And where do those rights come from?

A. From the law.

(T 428-9)

43. Myra Hayes is a senior claimant from the Antulye group. The following extracts from the transcript relate to the laws and customs of the group in relation to the land.

Q. All right. Now when you think of that country, Myra, under your Arrernte law do you have rights in that country?

A. Yes, we have rights in that country.

Q. Where do they come from?

A. From my grandfather. We've got to follow his spirits and stories, what he told us. We've got to believe in that.

Q. What can you do on that country? Where are your rights?

A. We got rights to go there and show the kids their great-grandfather's story. Show them. Tell them about it so they can carry on.

Q. And is that important to you?

A. Yes, that's very important for them, to learn about their great-grandfather's story.

Q. And can you go to those places?

A. Yes, not to the sites but to the other sites.

Q. What do you mean by that? What other sites?

A. Not the men's sites.

Q. All right. And can you hunt on those places, get bush tucker there?

A. Yes.

(T 450)

Q. Now Myra, we have talking about White Gate and that hawk Dreaming and that Antulye country, and we have talked about the bush tucker and the medicine plants, as you have there. Do you have under your Arrernte law do you have any rights to do - to be there?

A. Yes, we have - yes.

Q. To take that bush tucker?

A. Mm.

Q. What rights are they?

A. It's a right that the old people told us to use it and where to look around for it and find it. That's after rain.

Q. And do you have any rights to be in that country?

A. I have to be - I got right to go around my country - so I can walk around.

Q. Is that Antulye country?

A. Yes.

Q. Where does that right come from?

A. From the old people.

Q. What did they tell you about that?

A. About walking around there, but we have rights to go around there, anyway. Nobody can stop us from going round there.

Q. And can you live there?

A. Yes, if we get a piece of land on it to live around there.

Q. Do you want to live there?

A. Yes. We want to live there.

Q. Why is that Myra?

A. Because it's our story and we have to tell the story, show the story to the kids and tell them how we connected to the land for the young kids, for our grandchildren here.

Q. Do you have rights to that bush tucker under your Arrernte law?

A. Yes, we have rights all through for all the bush tuckers in the bush country and everywhere. We don't have to ask anybody to give permission to go and get it. We just got to walk ourselves and get it.

Q. What about that water - those soaks that you mentioned?

A. Soakages. Yes, we know how to go and look round for water, and we know where the old people used to find water. We know that. And we know how to dig up a soak, find water.

Q. How do you dig up a soak?

A. The stick or - stick - like crowbar they used to have, but they have sharp sticks.

Q. When you were walking around with the old people, did they use the timber, did they use the wood to make things?

A. Yes.

Q. What did they make?

A. They used to make boomerangs, nulla nullas, spears, and they used to make yam-sticks, digging sticks.

Q. Digging sticks?

A. Yes.

Q. Did you see them doing that?

A. Yes. And they used to dig rabbits with those digging sticks and witchetties.

Q. Did you do that when you were young?

A. No, I used to just walk around with them.

Q. Walk around with them?

A. Yes, see them. They never used to let us use those digging sticks.

Q. What was that?

A, Because it was important for them.

Q. And what would they do with the boomerangs and the spears?

A. Well, they used to go hunting. They would used to use rifle, they used to have dogs - dogs to chase kangaroos.

Q. And spears?

A. Mm.

Q. Did you see them use spears?

A. Sometimes they used to use spears, but they used to put wires around to trap the kangaroos in the night and go in the morning and get the kangaroo out of the wire.

Q. Would they take other animals with those spears?

A. Yes. Sometime - most of the time they used to use boomerangs and things.

Q. Under your Arrernte law, Myra, do you have a right to take those animals?

A. Yes.

Q. Where does that ...?

A. That's how the old people used to live on before white people's tucker.

Q. Do you still have that right today?

A. Yes, we still have that right.

Q. And do you go after those animals today?

A. Yes, sometimes they go out there and get some.

Q. Is this out towards Antulye on that east side?

A. Yes, yes.

Q. When was the last time, Myra, you can remember? Was it last week or last year or five years ago?

A. No. What is today, Monday - they went out there on Sunday and they brought back kangaroo meat.

(T 471-3)

Q. And Myra, as kwetengerle do you under Arrernte law, do they have rights?

A. Yes.

Q. What rights are they?

A. They got to help us. If we need help, they come and sit down and listen and if anybody ask them they tell the same story, yes. They have rights to listen to our stories and they are like caretakers for us.

Q. Someone told me like lawyers?

A. Yes, they lawyers, they like lawyers, that's in Aboriginal way.

Q. And Myra you have told us about your rights to that hunting and bush tucker and medicines, do they have any rights to those things?

A. Mm.

Q. As kwertengerle?

A. Yes.

Q. In that Antulye country?

A. Mm

(T 476)

44. Patrick Hayes gave evidence at a site close to the homestead at Undoolya Station. He said that he had been born at the homestead which was near his conception place. He had also lived for sometime at the station. He was asked about getting water in earlier times when he lived at the station.

Q. ... When you were here, Patrick, did you get water from somewhere around ´ here?

A. Soakage.

Q. Where is the soakage?

A. Round the back.

Q. Round the back. Further away from the homestead?

A. Mm.

Q. What would you do there to get water?

A. Dig them out, get a tin or something and dug it up.

Q. Yes, okay?

A. Bring it back and drink - same as you get tap water; take it back and drink it with a glass or something.

Q. All right?

A. That's the way we used to do it.

Q. Okay. And whose country is that where you were taking that water from?

A. Belonging this job, round this place here, this area.

Q. And is that you and Peter?

A. Yes.

Q. And your father - father's ...?

A. ... Old lady sitting down.

Q. Old lady - you are indicating towards Jean Stuart? All right. And did you have any rights under your law to take that water?

A. Yes.

Q. Where did that come from?

A. Law from this place here, own country.

Q. And Patrick, does this river flood? Water come through here?

A. Some time, in big rain time.

Q. Have you seen that happen?

A. Long time ago when I was little.

Q. When you were little, okay. And you get a lot of growth and plants, animals through here when it floods like that?

A. Other side.

Q. Further down?

A. Yes.

Q. You go looking for bush tucker through there?

A. Yes.

Q. ... when you were a young fellow? And what would you get down there during those good times?

A. Bush tucker, some meat, same as we doing every time when we go for hunting. We still going.

Q. And under your law do you have rights to take that tucker?

A. Yes.

(T 570 - 1)

45. Although the evidence as recorded is not entirely clear, it does appear that Jean Stuart asserted that in some situations a person from another country would seek permission from the relevant Alice Springs group before undertaking some type of activity on Mparntwe country. Her evidence was:

Q. Right. And you are allowed by your law to hunt or get bush tucker from that country?

A. That's right. Must be free, I suppose. If you mob don't want to go around, well, that's its.

Q. Yes. If somebody wants to go onto your mother's country or your atyemeye's country, some outside people, by your law should they ask?

A. If they build a house there.

Q. Yes?

A. They can come anywhere, long as they come in.

Q. What about outsiders, people from ...?

A. Outsiders people go and get their own place.

Q. If outside people want to come to your country, or to your atyemeye country, by your law should they ask you.

A. They might do something when they come into other people's land. They can come and go back.

(T 700)

46. Patricia Ann Miller spoke about her traditional rights in relation to Mparntwe country and the practices that were formerly observed as between Aboriginal people when people from other areas wished to visit Alice Springs. Her evidence included the following:

Q. Now do you as apmereke-artweye kwertengerle have rights in that Mparntwe country?

A. Yes, I do.

Q. What rights are they?

A. I have the right to hunt and gather food, look after country, speak to people who I believe are misbehaving or desecrating things, speak on behalf of Mparntwe people without families, speak to Government Departments, notify sacred sites if we believe damage is being done in that area, welcome people to Alice Springs which all of our family groups and different members have been called on from time to time as specially for visiting conferences, and other Aboriginal people that come to town. We are respected by the rest of the Aboriginal community within the Alice Springs area of Mparntwe and that gives us a lot of responsibility.

Q. And does that include a right to live on Mparntwe country?

A. Yes, it does.

Q. You mentioned hunting?

A. Yes.

Q. Does it include a right to forage and take bush tucker?

A. Yes, when I was younger and before the town is spread out as much as now, we used to often go all around this area and get bush tucker and, you know, all that.

Q. We will come back to that, if I may. Is there a notion in Arrernte law of who can be here and who cannot be here?

A. Yes.

Q. When did you first learn about that?

A. I've known it all my life.

Q. What is the position?

A. The position that right where the town is situated is Mparntwe country, Mparntwe-Arrernte country. It is all Arrernte country as far as the eye can see, but there's eastern, northern, Pertame mob, which is southern and western Arrernte.

Q. What if somebody from outside, say, Pitjantjatjara wanted to come in. When you were growing up was there any Arrernte laws about that?

A. Yes.

Q. What were they?

A. Well, nearly all those people when they came in, either travelling or with different station owners from the southern, south western region, they'd stop south of The Gap and they'd send a messenger in. And the people who dealt with those messengers would be my old uncles, which is my granny's brothers.

Q. That is Granny Mary?

A. Yes. And my father and Uncle Harold and Uncle Arthur.

Q. Did you see this happen?

A. Yes.

Q. When you were growing up?

A. Yes.

Q. And what happened?

A. What happened is that usually they came into town, had a meeting, and asked why they were coming into town, whether it was for picking up stores or medical reasons or just to see other people.

Q. And someone would make a decision?

A. They'd make a decision and they'd allow people to come in.

Q. Who would make those decisions?

A. Nearly all the old people, jointly.

Q. That you have mentioned before?

A. Yes.

Q. And what happened if those arrangements were not followed by those outside Pitjantjatjara people? Did that cause a problem?

A. It wasn't ...

Q. In the old days?

A. Yes. It was just what they call strangers, you know. So it just wasn't one group with one tribal name.

Q. And if these strangers in the old days just walked in, what was the response?

A. Yes, yes, it was just referred to a big trouble.

(T 1347-8)

I then intervened with a view to establishing the extent to which the former customs are still observed. The following exchange occurred:

Q. Could I just interrupt there. Could you tell me, is that process still followed, say with strangers coming into Alice as you have described it?

A. It's followed probably more so through an organisational point of view today. There's a lot of people that still recognise - the older people still recognise that Mpartnwe-arenye people are the traditional owners of Alice Springs, but the protocols are nearly always followed via the advisers to the organisations, and they track down through sacred sites or native title people who are the traditional owners. And people get messages like that, because you haven't got the same travelling routes as what you had when I was a kid, you know, because people have got motor cars and sealed roads, and everything else. But the same status applies.

Q. For instance, if someone was coming in from, say, Hermannsburg to catch an aeroplane at the Alice Springs airport to go somewhere, they...?

A. No, no, no. I think what's been realised is that Alice Springs is sort of like the economic base for a whole lot of communities now. And more and more Aboriginal people are coming into town and using, like, you know, like European way of travel, you know, whether it a motor car or aeroplane, yes.

47. On the evidence which has been adduced in support of the applicants' case it is not open to find that the members of the claimant groups have, in accordance with their traditional laws and customs, the right to the exclusive possession, occupation, use and enjoyment of the claimed land. The evidence does however establish that members of the claimant groups and their forebears have by Aboriginal traditional law and custom lived on the land of their respective groups, hunted wild life and gathered food found thereon and made use of the surface water resources. The advent of non-Aboriginal occupation of the land has clearly had an effect on the claimants' ability to continue to exercise these traditional rights to the same extent that their forebears were able to but nevertheless they continue to use the land in the manner described and they do so in accordance with their traditional laws and customs.

48. The evidence indicates that as between themselves, Aboriginal people would be expected to recognise the rights and interests of the relevant land holding groups and on occasions may be expected to seek permission before embarking upon an activity such as building a permanent residence on the country of a group to which they themselves do not belong. There is however no evidence that in recent times any Aboriginal person or group has been excluded from entering or remaining on the claimed land or other traditional country of the claimant groups. Nor indeed that any person, Aboriginal or non-Aboriginal, has sought permission either to enter upon the claimed land or to establish a permanent residence there. The evidence does not support the general proposition that the claimant groups in practice enjoy, nor indeed that they claim the right to, the exclusive possession, occupation, use and enjoyment of their country. The traditional laws currently acknowledged and the traditional customs currently observed by the claimant groups do not extend to the exclusive entitlement which has been advocated in this proceeding. The claimants' own evidence does not support the rights that have been asserted by others on their behalf.

49. Subparagraph (e)(iii) of the applicants' proposed determination refers to the right and interest of ownership of the natural resources of the land and waters of their respective estates. The only natural resources of the land to which reference was made in the evidence are the animals hunted, the food gathered and the water. The rights which were asserted in relation to these resources were not expressed in terms of ownership but rather in terms of engaging in the activity of hunting, gathering and obtaining water for consumption. The use made by the claimants of the resources of their country is nothing more or less than one aspect of their right to use and enjoy the land. There is nothing in the evidence that would support a finding that by their traditional laws and customs the claimant groups enjoy the exclusive rights to the natural resources of their respective estates that the claim of "ownership" suggests. They clearly have a traditional right to enjoy the resources found on their estates.

50. The claim to the determination sought in subparagraph (e)(iv) of the proposed determination is covered by the conclusions expressed above in paragraphs 45 to 47 (inclusive) and no further comment thereon is called for. The rights referred to in subparagraphs (e) (v), (vi) and (vii) are however of a somewhat different character.

51. There is a strong theme running through much of the evidence to the effect that the traditional laws and customs of the claimant groups require them to take special care to protect the integrity of places which are of spiritual importance to them; and the evidence contains many references to specific occasions when members of the claimant groups have been actively involved in endeavouring, sometimes but not always successfully, to prevent the destruction or degradation of such places. Indeed, the law of the Northern Territory in the form of the Northern Territory Aboriginal Sacred Sites Act 1989 provides some recognition of the importance in Aboriginal culture of sites associated with the spiritual beliefs of the indigenous people and the Commonwealth has also legislated in the same field. Any form of native title which did not recognise the need to protect sacred and significant sites would debase the whole concept of recognition of traditional rights in relation to land. Each of the rights expressed in subparagraphs (e)(v), (vi) and (vii) of the proposed determination would be a normal adjunct of the recognition of native title rights and interests in land but the exercise of such rights would of necessity be subject to any valid executive or legislative act affecting those rights.

EXTINGUISHMENT OF NATIVE TITLE

52. In Mabo No 2 Mason CJ and McHugh J, in summarising the view of the majority of the Court, said (at p 15)

... the common law of this country recognises a form of native title which, in cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands ...

It follows that the common law of Australia does not recognise native title which has been extinguished; and it will be noted that the Native Title Act definition of "native title" requires that the rights and interests in question be recognised by the common law of Australia (s 223(1)(c)).

53. In dealing with the extinguishment of native title Brennan J said, in Mabo No 2 (at p 68):

A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title ...

Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title; construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished. But where the Crown has not granted interests in land or reserved and dedicated land inconsistently with the right to continued enjoyment of native title by the indigenous inhabitants, native title survives and is legally enforceable.

A similar view was expressed by Deane and Gaudron JJ (at p 110):

The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession. They can also be terminated by other inconsistent dealings with the land by the Crown, such as appropriation, dedication or reservation for an inconsistent public purpose or use, in circumstances giving rise to third party rights or assumed acquiescence. The personal rights of use and occupation conferred by common law native title are not, however, illusory. They are legal rights which are infringed if they are extinguished, against the wishes of the native title holders, by inconsistent grant, dedication or reservation and which, subject only to their susceptibility to being wrongfully so extinguished, are binding on the Crown and a burden on its title.

54. Native title is recognised, and protected, in accordance with the Native Title Act (s 10); and is not able to be extinguished contrary to the Act (s 11 (1)). The amendments to the Native Title Act made following the decision in The Wik Peoples v Queensland and Others 187 CLR 1 (Wik) deal extensively with extinguishment issues. The Act now provides that "a previous exclusive possession act" (a term defined in s 23B), if attributable to the Commonwealth, extinguishes native title (s 23C); and further that a law of a State or Territory which conforms with certain requirements, may make provision to the same effect in respect of previous exclusive possession acts attributable to the State or Territory (s 23E). In the Native Title Act, the word "extinguish", in relation to native title, means permanently extinguish the native title; after extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect (s 237A).

55. The definition of "previous exclusive possession act" is complex and many facets of it are relevant in this proceeding. The section provides:

23B (1) This section defines previous exclusive possession act.

(2) An act is a previous exclusive possession act if:

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

(b) it took place on or before 23 December 1996; and

(c) it consists of the grant or vesting of any of the following:

(i) a Scheduled interest (see section 249C);

(ii) a freehold estate;

(iii) a commercial lease that is neither an agricultural lease nor a pastoral lease;

(iv) an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

(v) a residential lease;

(vi) a community purposes lease (see section 249A);

(vii) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to "1 January 1994" were instead a reference to "24 December 1996";

(viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

(3) If:

(a) by or under legislation of a State or a Territory, particular land or waters are vested in any person; and

(b) a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation;

the vesting is taken for the purposes of paragraph (2)(c) to be the vesting of a freehold estate over the land or waters.

(The section does not contain any subsections numbered (4), (5) or (6))

(7) 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.

(9) An act is not a previous exclusive possession act if it is:

(a) the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(b) the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(c) the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters.

(9A) 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.

(9B) 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.

(9C) 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.

(10) The regulations may provide that an act is not a previous exclusive possession act.

(11) To avoid doubt, the fact that an act is, because of any of the previous subsections, not a previous exclusive possession act does not imply that the act is not valid.

56. To understand some of the issues which have been raised in relation to the extinguishment of native title it may be helpful to first briefly outline some aspects of the historical context in which the relevant events occurred. The following information (which is not controversial) has been extracted from the respondent's written submission dated 16 November 1998.

In Commissions to Governor Phillip from King George III dated 12 October 1786 and 2 April 1787 the Colony of New South Wales was expressed to extend westward to longitude 135°E, bringing within the boundary a substantial part of what is now known as the Northern Territory. Letters Patent issued to Governor Darling, dated 16 July 1825, extended the boundaries of New South Wales to longitude 129°E, the present western boundary of the Northern Territory remained part of New South Wales.

The Province of South Australia was established out of the Colony of New South Wales by Letters Patent dated 19 February 1836. The northern boundary of South Australia was fixed at latitude 26°S, the present southern boundary of the Northern Territory.

In 1846 the British Government decided to establish the Colony of North Australia. Letters Patent were issued on 17 February 1846 and 21 February 1846 which respectively established the Colony and appointed Sir Charles Fitzroy as Governor. The Colony included the present area of the Northern Territory, but in fact it was never physically established. By Letters Patent dated 28 December 1846, the new Colony was revoked and the area reverted to being part of the Colony of New South Wales.

In 1859 the Colony of Queensland was separated from New South Wales, the western boundary of Queensland being longitude 141°E. By Letters Patent dated 13 March 1862 the western boundary of the Colony of Queensland was extended to longitude 138°E, the present eastern boundary of the Northern Territory.

After 1859 the present area of the Northern Territory remained part of New South Wales until by Letters Patent dated 6 July 1863 (forwarded to Governor Daly by accompanying letter dated 16 July 1863) the Northern Territory was annexed to South Australia.

In 1884 the South Australian Parliament passed the Northern Territory Justices Act to confirm (with some irrelevant specific exceptions) that from the time of annexation of the Northern Territory in 1863, South Australian law applied to the Northern Territory to the exclusion of New South Wales law. The 1884 Act was later repealed in its application to the Northern Territory by the Jury Ordinance (No 7 of 1912).

The Commonwealth of Australia Constitution Act 1900 provided that that the new State of South Australia, included "the northern territory of South Australia".

From 1 January 1911 following surrender by South Australia and acceptance by the Commonwealth, the Northern Territory ceased to be part of South Australia and became a territory of the Commonwealth. Existing South Australian laws continued to apply to the Territory until otherwise provided. The Commonwealth Parliament passed the Northern Territory (Administration) Act 1912 under which, inter alia, the Governor-General was empowered to make Ordinances having the force of law in the Northern Territory.

The Northern Australia Act 1926 (Cth) divided the Northern Territory along latitude 20°S, into two administrative regions designated as North Australia and Central Australia. This scheme commenced on 1 March 1927 but on 12 June 1931 the Territory reverted to the pre-1927 form of administration upon the repeal of the Northern Australia Act.

In 1978 the Commonwealth Parliament enacted the Northern Territory (Self-Government) Act and repealed the Northern Territory (Administration) Act. Since 1 July 1978 the Northern Territory has remained a territory of the Commonwealth but with its own institutions of self-government and responsibility for most State-type matters.

57. Prior to the surrender of the Northern Territory to the Commonwealth in 1911 South Australian law applied in the Northern Territory and after surrender continued to apply until superseded by Commonwealth law. The early pastoral leases relating to land the subject of this proceeding were granted under South Australian legislation and those current at 1 January 1911 continued until replaced by leases granted under various Crown Lands Ordinances promulgated pursuant to the Northern Territory (Administration) Act 1912. In subclauses 44(1), 46(1), (2), (3), (4) and (5) of Schedule 1 to the Native Title Act reference is made, inter alia, to some early South Australian Acts (which are not of immediate concern in this proceeding) and to the Crown Lands Ordinances. The first Crown Lands Ordinance (Ordinance No 3 of 1912) was promulgated in 1912 but was of short duration. It is referred to in these reasons as the Crown Lands Ordinance 1912 (No 3). In the same year the Crown Lands Ordinance 1912 (Ordinance No 8 of 1912) repealed the earlier Ordinance. In these reasons the second Ordinance which was subsequently amended on a number of occasions is referred to as the Crown Lands Ordinance 1912. In 1924 a new Ordinance, referred to hereafter as the Crown Lands Ordinance 1924 replaced the previous law, only to be replaced upon the division of the Territory in 1927 by separate Ordinances referred to hereafter as the Crown Lands Ordinance 1927 (North Australia) and the Crown Lands Ordinance 1927 (Central Australia). Following the repeal of the Northern Australia Act, the two Ordinances of 1927 were replaced by the Crown Lands Ordinance 1931 which remained in force, with amendments, until after self-government was granted in 1978. As from 1 July 1978 existing Ordinances became known as Acts even though their origin was not an Act of the Northern Territory Parliament. The Crown Lands Ordinance 1931 was still in force in 1978 and was amended from time to time by Northern Territory legislation, the last such amendment being in 1991. When ultimately repealed in 1992 it was known as the Crown Lands Act 1931-1991. Since 1992, the current legislation has been known simply as the Crown Lands Act but to avoid confusion will be referred to as the Crown Lands Act 1992.

58. Part III of the various Crown Lands Ordinances of 1912, 1924, 1927 and 1931 contained provisions relating to the leasing of land. In each case Part III was divided into divisions which dealt separately with Pastoral leases (Division 2), Agricultural leases (Division 3), Leases of Town Lands (Division 4) and Miscellaneous leases (Division 5). Part III of the Crown Lands Act 1931-1991 contained in addition a Division 6 which dealt with Town Land Subdivision leases. In 1953 the Special Purposes Leases Ordinance was promulgated, and after self-government became the Special Purposes Leases Act.

59. The decision of the High Court in Wik is authority for the proposition that the pastoral leases there considered did not necessarily extinguish native title but it follows from the reasoning which led to that conclusion that a similar form of tenure commonly known in Australia as a pastoral lease, will not necessarily give rise to a right to exclusive possession of the demised land. In referring to the evolution of the form of pastoral lease tenure in Queensland, Toohey J said (at p 110):

The local legislature adopted the form of pastoral lease tenure which had evolved in New South Wales. Many statutes were passed between 1860 and 1962 which provided for or affected pastoral leases. It is unnecessary to detail them; it suffices to say they reflected a regime designed to meet a situation that was unknown to England, namely, the occupation of large tracts of land unsuitable for residential but suitable for pastoral purposes. Not surprisingly the regime diverged significantly from that which had been inherited from England. It resulted in "new forms of tenure".

It may also be relevant to observe that not only were pastoral leaseholds granted over large tracts of land unsuitable for residential purposes, they were granted over land in areas remote from the centres of non-Aboriginal population where the indigenous population was known to continue to maintain a presence and to continue to use the land for sustenance and shelter in accordance with long established practices. The very nature of a pastoral leasehold when understood in the Australian context suggests an absence of an intention to exclude the indigenous population from its customary possession and occupation of the land.

The reasoning which found favour with the majority of the High Court in Wik is not capable of extension to leasehold interests which fit more comfortably within the mould of the common law concept of a lease. Indeed, in Wik (at p 118) Toohey J conceded that "the authorities point to exclusive possession as a normal incident of a lease" although he further commented that they do not exclude an inquiry whether exclusive possession is in truth an incident of every arrangement which bears the title of lease.

It is a feature of the various Crown Lands Ordinances and Acts which have applied in the Northern Territory that the capacity to grant leases under those laws has been regulated by different provisions applicable to each different category of leasehold interest granted. Pastoral leases have always been treated as a separate category and it is only in respect of that category that special provision has been made to preserve the rights of the Aboriginal inhabitants. In the absence of the type of features which enabled the High Court to distinguish a pastoral lease from the more conventional leasehold tenure, it is reasonable to infer that other categories of leases granted under the relevant legislation would as a normal incident of the lease grant a right to exclusive possession.

60. The respondent says that any native title which may otherwise have subsisted in relation to the claimed land has been extinguished by various legislative and administrative acts of the Crown, and the use of land by the Crown, which were inconsistent with the continued exercise of the native title rights and interests claimed. The respondent relies upon three general categories of acts as supporting its submission that native title rights in relation to the claim area have been extinguished, namely:

(a) inconsistency of native title rights with rights granted to others;

(b) inconsistent legislative regimes;

(c) inconsistency between use of the land and native title.

In each category a number of different subcategories are identified.

INCONSISTENCY OF NATIVE TITLE RIGHTS WITH RIGHTS GRANTED TO OTHERS

61. The Native Title Act as amended in 1998 deals with the extinguishment of native title by previous exclusive possession acts. Section 23B (which defines the term previous exclusive possession act) is set out above. For the most part the acts specified in paragraph 23B(2)(c) would according to the general principles expressed in Mabo No 2 and Wik be regarded as having the effect of extinguishing native title and in many respects s 23B does no more than to remove doubts as to the possible extinguishing effect of the granting of certain types of leasehold interest. In particular, this is the role of the provisions relating to Scheduled interests.

The term "Scheduled interest" is defined in s 249C as

(a) anything set out in Schedule 1, other than a mining lease or anything whose grant or vesting is covered by subsection 23B(9), (9A), (9B), (9C)

or (10) (which provide that certain acts are not previous exclusive possession acts); or

(b) an interest, in relation to land or waters, of a type declared by a regulation for the purposes of this paragraph to be a Scheduled interest.

Schedule 1 has seven parts, each dealing with land in a separate State or Territory. Part 7 deals with the Northern Territory. It contains five clauses headed respectively Town leases etc (cl 42), Agricultural leases etc (cl 43), Leases for special purposes etc (cl 44), Miscellaneous leases (cl 45) and Other leases (cl 46). Each clause specifies an extensive list of leasehold interests to which it applies.

Other terms used in s 23B(2)(c) notably "commercial lease", "exclusive agricultural lease", "exclusive pastoral lease", "residential lease" and "community purposes lease" are defined respectively in sections 246, 247A, 248A, 249 and 249A. Reference will be made elsewhere to each of these definitions.

62. Each of subclauses 44(1), 44(2), 45(1) and 46(7) of Schedule 1 refers to leases granted under particular statutory provisions which permit the lessee to use the land or waters covered by the lease solely or primarily for any of a number of specific purposes. In the case of subclause 44(1), which deals with Special Purpose Leases 282 purposes are specified; in subclause 45(1) dealing with Miscellaneous leases there are 181 purposes and in subclause 46(7) (Other leases) there are 291. The immediate impression gained from an examination of these provisions is that those who have been responsible for drafting the legislation have gone to extraordinary lengths to identify with precision the various purposes from which leases intended to be covered by these subclauses have been granted. For example, the fact that subclause 46(7) specifies both "car park" and "public car park" indicates that the specified purposes are not intended to be general descriptions of a purpose but rather to refer precisely and specifically to leases granted for the purpose as described. There are many similar examples such as (again in subclause 46(7)) the inclusion of "cropping", "crops" and "cereal crops"; another example (in subclause 45(1)) is the group "club hall", "club room" and "club house". Another indication of the draftsman's intention is that there is no common pattern to be found in the lists of purposes in the several subclauses. All this leads to the conclusion that the purposes specified in the Schedule are intended to relate to leases actually granted solely or primarily for those purposes. However, it does no violence to the general policy of the Schedule if, to the extent that the Schedule specifies a general purpose, such as for example "oval", a lease for the purpose of say "football oval" is treated as being encompassed by the purpose specified. A lease granted pursuant to legislation referred to in the Schedule which is not a Scheduled interest may nevertheless be a "previous exclusive possession act" if it meets the criteria applicable to one or other of the categories of interests referred to in s 23B(2)(c).

63. The Native Title Act validates certain past acts (defined in s 228) attributable to the Commonwealth which but for the Act would have been invalid by reason of the existence of native title (s 14), and confirms the extinguishment of native title in relation to previous exclusive possession acts attributable to the Commonwealth (s 23C). The Act also makes provision for the validation by State and Territory law of past acts attributable to a State or Territory law (s 19). A previous exclusive possession act that affected land or waters within the Northern Territory which took place before the establishment of the Northern Territory is taken to be attributable to the Northern Territory (Native Title Act, s 23JA).

64. Division 2A was introduced into the Native Title Act by the 1998 amendment to deal with questions of validity of certain acts which took place on or after 1 January 1994 (the commencing date of the Native Title Act) but on or before 23 December 1996 (the date on which the High Court gave its decision in Wik). Such acts are called intermediate period acts, a term which is defined in s 232A. Section 22A provides that an intermediate period act that is attributable to the Commonwealth is valid, and is taken always to have been valid, and by s 22F it is provided that if a law of a State or Territory contains provisions to the same effect as 22B (which deals with the effect on native title of validation) and 22C (which deals with the preservation of beneficial reservations and conditions), the law of the State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are taken always to have been valid. Reference is made later in these reasons to the application of the statutory provisions relating to intermediate period acts insofar as they affect parts of the claimed land.

65. In 1994 the Parliament of the Northern Territory passed the Validation of Titles and Actions Act 1994 by which every past act attributable to the Territory was validated and taken always to have been valid (s 4). The Act also adopted the same regime in relation to extinguishment of native title by past acts as applies under the Native Title Act. Subsequent to the passage of the Native Title Amendment Act 1998 the Territory Parliament amended the Validation of Titles and Actions Act (the short title of which was changed to the Validation (Native Title) Act) by adopting provisions in relation to intermediate period acts and to the extinguishment of title by previous exclusive possession acts attributable to the Territory which are to the same effect as the Native Title Act provisions in that regard. In the Validation Act the definition of "previous exclusive possession act" is set out in Schedule 1 but in terms which correspond with those of s 23B of the Native Title Act. Schedule 2 of the Validation Act sets out details of Scheduled interests in the Territory in the same terms as Part 7 of Schedule 1 to the Native Title Act. For ease of reference, in the survey which appears later in these reasons of the various leases and other interests which are said to affect native title in relation to the claimed land the relevant statutory provisions are referred to by the section, paragraph, Schedule and clause numbers as they appear in the Native Title Act. The corresponding provisions of the Validation Act are in each case to the same effect.

PASTORAL LEASES

66. The concept of extinguishment of native title was the subject of detailed consideration by the High Court in Wik. In that case the Court had occasion to examine the effect on the presumed native title rights and interests of the plaintiffs of the granting under Queensland legislation, of certain pastoral leases. The majority (Toohey, Gaudron, Gummow and Kirby JJ) held that the leases in question did not confer rights to exclusive possession on the grantees. In a postscript to his reasons Toohey J, with the concurrence of Gaudron, Gummow and Kirby JJ, said (at pp 132-133):

To say that the pastoral leases in question did not confer rights to exclusive possession on the grantees is in no way destructive of the title of those grantees. It is to recognise that the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it.

So far as the extinguishment of native title rights is concerned, the answer given is that there was no necessary extinguishment of those rights by reason of the grant of pastoral leases under the Acts in question. Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.

67. In order to determine whether leasehold or other interests granted by the Crown are inconsistent with the rights and interests of native title holders it is necessary to analyse both the statute authorising the grant and the particular instrument of grant to determine first the nature of the rights granted and then to compare those rights with the pre-existing native title rights. If the continued exercise of the native title rights would be entirely inconsistent with those of the grantee, then the native title will be extinguished; if however, the two sets of rights are not entirely inconsistent, the native title rights must yield to those of the grantee to the extent of any inconsistency.

68. Section 23B(2)(c)(iv) of the Native Title Act provides that an exclusive possession pastoral lease (provided it is valid and granted before 23 December 1996) is a previous exclusive possession act. The terms "pastoral lease" and "exclusive pastoral lease" are defined in sections 248 and 248A respectively as follows:

248 A pastoral lease is a lease that:

(a) permits the lessee to use the land or waters covered by the lease solely or primarily for:

(i) maintaining or breeding sheep, cattle or other animals; or

(ii) any other pastoral purpose; or

(b) contains a statement to the effect that it is solely or primarily a pastoral lease or that it is granted solely or primarily for pastoral purposes.

248A An exclusive pastoral lease is a pastoral lease that:

(a) confers a right of exclusive possession over the land or waters covered by the lease; or

(b) is a Scheduled interest.

69. There is no evidence of any pastoral lease being granted in the area of the Northern Territory whilst it was part of New South Wales. However, during the administration of the Northern Territory first by South Australia and later by the Commonwealth 15 pastoral leases were granted with respect to various portions, but not the whole, of the claimed land. The following table sets out brief particulars of the leases in question:

70. In 1872 Edward Meade Bagot made application to the South Australian authorities pursuant to the Waste Lands Act (SA) for the grant of two leases each of 300 square miles of land near what is now Alice Springs. The whole of the claim area is encompassed within the areas applied for. Ultimately, on 14 June 1876, Pastoral Lease No 1 (PL 1) comprising 275 square miles and Pastoral Lease No 2, (PL 2) comprising 300 square miles were granted. In each case the term of the lease was expressed to be for a period of 25 years from 1 April 1872. Apart from the front and back sheet, PL 1 cannot be located, but the whole of PL 2 is extant and in all the circumstances it is reasonable to infer that apart from the area of land leased, they contained identical terms and conditions. The back sheet of PL 1 contains a plan indicating an area of 275 square miles. The outer boundaries comprise a rectangle measuring 20 miles along the north and south boundaries and 15 miles along the east and west boundaries. The plan shows an area 5 miles square within the outer boundaries which was obviously excluded from the area leased. In the centre of the square there is a circle located 5 miles from both the north and the west boundaries which is denoted "Alice Springs". Pastoral Lease No 2 relates to a rectangle of similar dimensions containing 300 square miles adjacent to, and west of, the land comprised in PL 1. The area of 25 square miles excluded from PL 1 was apparently intended as a reserve for the purpose of the Alice Springs Telegraph Station which was under construction when Bagot made his application in 1872. There appears to have been some confusion as to the exact location of the telegraph station in relation to the boundaries of PL 1 but it is not necessary to go into any detail on that issue.

71. PLs 1 and 2 were later assigned first (in 1881) to Andrew Tennant, John Love and Robert Love and later (in 1891) to The Willowrie Land and Pastoral Association Limited which, in 1893, surrendered both leases for the purpose of obtaining new leases. New leases were in fact granted on 8 November 1898 in each case for a term of 18 years from 1 April 1893. In the case of PL 2, the new lease related to exactly the same area as its predecessor whereas with PL 1, the new lease was for an area of 270 square miles. The outer boundaries of PL 1 remained as before but the lease excluded from the overall area of 300 square miles an area of 30 square miles to some extent overlapping, but not entirely corresponding with, the area excluded from the original lease. The northern boundary of the excluded area was to the south of the corresponding boundary in the original lease and its western boundary was at the common boundary of the two leases. Both leases were again surrendered in 1908 when new leases (still described as PL 1 and PL 2) were granted again for a term of 18 years from 1 April 1893.

72. The terms of both leases expired on 31 March 1911 although there is some evidence to indicate that extensions were granted, first until 30 September 1912, and then to 1 October 1913. By this time both leases were held by the Hayes family who remained in possession until new leases were granted in 1921. The delay in renewing the leases appears to have been related in part, but not entirely, to the change in the administration of the Northern Territory in 1911. However, new pastoral leases PL 2386 and PL 2387 were eventually granted on 7 February 1921 pursuant to The Crown Lands Ordinance 1912-1918 in respect of substantially, but not entirely, the same areas as PLs 1 and 2, in each case for a term of 21 years from 1 January 1920.

73. PL 2386 is expressed to relate to "all that piece of land in the Northern Territory of Australia being formerly expired Pastoral Lease Number One situated in the Alice Springs District and containing two hundred and seventy square miles more or less". The plan annexed to the lease depicts an area corresponding to that depicted in similar plans in both the 1898 and 1908 lease instruments. The excluded area is shown as "Reserve. Alice Springs Tel. Stn". PL 2386 was subdivided in 1923 when an area of 90 square miles was excised and transferred to The Crown Pastoral Company Limited under Pastoral Lease 2386A. The area of PL 2386 was further reduced in July 1923 when 8¯ square miles was excised, thus reducing the area to 171 ° square miles.

74. Although PL 2387 when granted in 1921 described the leased land as being "formerly expired Pastoral Lease Number Two situated in the Alice Springs District" it contained only 255 square miles, an area of 45 square miles in the north-western corner of the former area (none of which is affected by this proceeding) having been added to the holding of an adjoining leaseholder. As with PL 2386, a small area (in this case 5¼ square miles) was excised in July 1923. The remaining area was subsequently further subdivided and portions transferred.

75. It is unnecessary to trace in detail subsequent pastoral leases relating to portions of the land formerly covered by PLs 2386 and 2387 which in some cases included additional areas not affected by this proceeding. The later grants were made under the Crown Lands Ordinances of 1924, 1927 and 1931 and the overall terms of the leases were extended to expire on 30 June 1965.

76. The original PL 2 (and by inference, the original PL 1) contained a reservation in the following terms:

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 and upon and over the said Waste Lands of the Crown hereby demised and every part thereof and in and to the springs and surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such a manner as they would have been entitled to do if this demise had not been made ...

The leases granted in 1898 and in 1908 contained a substantially similar provision in these terms:

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

77. The right to make and erect wurlies and other dwellings was in each case qualified by the words "as the said Aboriginal natives have been heretofore accustomed to make and erect" and the right to take and use for food birds and other animals ferae naturae was to be exercised "in such a manner as they would have been entitled to do if this demise(lease) had not been made". The Crown obviously recognised at the time that the Aboriginals in question had an existing entitlement to erect wurlies and other dwellings on the land (and thus to occupy the land in the sense of living on it) and to take and use birds and wild animals for food, and whilst it may well be said that the pre-existing entitlement was replaced by an entitlement derived ultimately from the statute which authorised the granting of the lease it must be remembered that the Aboriginal inhabitants were not a party to the leases and had no contractual basis upon which to enforce the rights which the lease instruments recognised as existing. The terms of the leases are not inconsistent with a native title right to hunt on the land, nor are they inconsistent with a native title right to have free access to the land and its springs and surface waters. By recognising the right to erect dwellings upon the land it was contemplated that Aboriginal people would continue to live there. Whilst neither form of reservation makes express reference to the gathering of food (other than birds and wild animals) or to the actual use of the waters, it may fairly be said that the South Australian leases contemplated the continued existence of native title rights of the same character as those rights which have been referred to by the applicants' witnesses in this proceeding as the rights which they have inherited from the original inhabitants of their respective countries. In a practical sense, the granting of PLs 1 and 2 would not have affected the exercise of the existing native title rights and interests of the inhabitants of the leased land. It must necessarily follow that the leases do not disclose an intention to extinguish those rights and interests. On one view, the leases may be said to have extended a right of access to Aboriginal inhabitants of the Province who did not traditionally enjoy, or at least did not exercise, such a right but even if that be so, the existing rights which the ancestors of the present applicants enjoyed in relation to the demised land would not have been affected.

78. The applicants' written submissions trace in considerable detail the history of the various statutes authorising the alienation of Crown land in South Australia, and in particular the Northern Territory of South Australia, prior to the surrender of the Territory to the Commonwealth in 1911, and that analysis has raised a number of questions as to the possible invalidity of some of the leasehold grants which are relevant to this proceeding but in view of the conclusion expressed below, it is unnecessary for present purposes to embark upon the task of examining those questions but it will be necessary to do so later in another context.

79. The basis of the conclusion in Wik that the pastoral leases there considered (which did not contain any reservation or exclusion in favour of Aboriginal inhabitants) did not necessarily extinguish native title was that the majority did not consider them to have granted a right to exclusive possession. It is not necessary to analyse in detail the precise terms of the leases granted prior to 1911, nor the legislation which authorised their grant. There is no relevant aspect of either the terms and conditions of the leases or the legislation authorising their grant which in the facts of this case justify them being distinguished from those in Wik. Apart from the reservation in favour of Aboriginal inhabitants, there was no material difference either in form or substance between the 1876, 1898 and 1908 leases granted by South Australia and the leases considered in Wik. On the basis of the Wik judgment, had the South Australian leases not included the reservation they would not have been regarded as giving rise to a right to exclusive possession and accordingly, if those leases are said to have granted the lessees a right to exclusive possession, it could only be because they included the reservation. Such a conclusion defies logic.

80. The leases granted by the Commonwealth pursuant to the Crown Lands Ordinance 1912 did not contain any reservation or exception in favour of the Aboriginal inhabitants nor did the Ordinance require any such reservation to be included. The Ordinance did however differentiate between different classes of leases and in particular contained specific provisions which were to apply respectively to pastoral leases, agricultural leases, leases of town lands and miscellaneous leases. Section 27 provided that in addition to the provisions which all leases other than miscellaneous leases were required to contain, pastoral leases were required to contain the following reservations, covenants, conditions and provisions:

(a) a reservation of a power of resumption;

(b) a reservation of all timber and timber trees and of all trees producing bark, resin, or valuable substances;

(c) a covenant by the lessee that he will within three years after the date of the lease, stock the land to the extent prescribed by the regulations and keep the land so stocked during the continuance of the lease;

(d) a covenant by the lessee that he will fence the boundaries of the lease as prescribed by the regulations;

(e) a covenant by the lessee that he will comply with the laws in force relating to the destruction of vermin and noxious weeds;

(f) a covenant by the lessee that he will not, without the consent of the Director of Lands, cut any timber trees on the leased land, except for use on or in connexion with the land;

(g) a covenant by the lessee that he will not in clearing the land destroy any timber or timber trees or trees producing any valuable bark, resin, or other valuable substances, except as allowed by the regulations;

(h) a covenant by the lessee that he will not obstruct any public roads, paths, or ways, or interfere with the use thereof by any person, and will not interfere with travelling stock lawfully passing through the leased land;

(i) a covenant by the lessee that he will not pollute, divert, or obstruct any water flowing in a defined natural channel, unless by consent of the Director of Lands; and

(j) a covenant by the lessee that he will observe and comply with the regulations under the Ordinance for the time being in force.

The respondent argues that some or all of these provisions indicate an intention to grant the lessee a right to exclusive possession, but I do not agree. None of the listed provisions is incapable of performance without exclusive possession.

81. The evidence discloses that the absence of a provision in the Ordinances of 1912 requiring pastoral leases to contain a reservation in favour of the Aboriginal inhabitants was deliberate, but it does not follow that the omission necessarily reveals a clear and plain intention that pastoral leases granted pursuant to those Ordinances would grant to the lessees a right to exclusive possession. On the contrary, the circumstances were such that those responsible for the drafting and promulgation of the Ordinances were desirous of ensuring that proper provision should be made for the protection of Aboriginal rights.

82. The contemporary records indicate that in 1912 it had originally been intended to include in the Crown Lands Ordinance as one of the "reservations, covenants, conditions and provisions" to be contained in all pastoral leases "a covenant not to interfere with Aborigines". A provision in those terms appears as clause 17(i) in an early draft of the Ordinance. In an undated and unsigned memorandum to the Minister, the then Secretary of the Department of External Affairs, (which at that time had responsibility for the administration at the Northern Territory) advanced a number of suggestions in relation to the "rough draft of the Lands Ordinance prepared by the Attorney-General's Department", including the following:

Clause 17(i): Delete the paragraph

It is thought that to leave the clause as it stands might impose hardship on the lessee and it would enable Aborigines to do as they pleased, eg camp permanently round the water-hole and prevent access to it by the lessee's stock. It appears advisable to leave all provisions relating to Aborigines to be dealt with under the Aborigines law or the regulations hereunder. It is understood that Professor Spencer is now considering this aspect of the Aborigines question.

83. Professor Baldwin Spencer, a biologist and anthropologist, had been appointed as a Special Commissioner and Chief Protector of Aborigines for the Northern Territory and had been asked to "formulate a definite policy for the future" in relation to the Aboriginal population. On 1 March 1912 the Secretary of the Department of External Affairs sent a memorandum to the Secretary of the Attorney-General's Department concerning the then draft Northern Territory Lands Ordinance in which he indicated that "the Minister desires the rough draft to be amended as follows". One of the items mentioned is:

Clause 17(i) omit - provision will be made in Aboriginal law for dealing with matter.

In the result, the proposed clause 17(i) was omitted from the Ordinance as finally promulgated on 11 November 1912. Professor Spencer's draft report was submitted to the Minister on 13 January 1913.

84. In their submissions on extinguishment issues dated 23 December 1998 the applicants assert (at paragraph 8.2.9):

The 1912 Ordinance was the first Commonwealth law relating to land in the Northern Territory. In drafting that law the Commonwealth chose not to make provision for the inclusion of a reservation in pastoral leases. The Commonwealth did not decide to omit or delete such a provision from an existing Ordinance. It is therefore not possible to infer from the memorandum and Ordinance, that the Commonwealth clearly and plainly intended to remove (or "extinguish") rights of Aboriginal people derived from an existing law, together with all other rights which they might possess. The most that might be said is that the Commonwealth decided that in drafting its land laws for the Northern Territory it would not (for the time being) follow the practice adopted in South Australia. It is neither clear nor plain that the Commonwealth intended that Aborigines would no longer have any rights of access to or use of the pastoral lands of the Northern Territory in the exercise of their native title rights and interests. Indeed the memorandum would seem to suggest that there was a belief that the reservation accorded Aboriginal people rights beyond those derived from their native title (eg, the right to "camp permanently round the water-hole and prevent access to it by the lessee's stock") and that it was the scope of these rights which Professor Baldwin would be examining.

With respect, I agree with, and adopt, this reasoning. Subsequent events tend to confirm its validity.

85. The Crown Lands Ordinance 1924, which replaced the 1912 Ordinance, provided (in s 39) for terms and conditions which were to be contained in pastoral leases. Paragraph (b) required "a reservation in favour of Aboriginal inhabitants of the Northern Territory" and by virtue of s 26(e) such a 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 have before the commencement of the lease been accustomed to make and erect, and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if the lease had not been made.

Thus it was that the Commonwealth administration reverted to the same formula as had prevailed prior to the surrender of the Territory by South Australia.

86. The motive for this change is revealed in drafting instructions in relation to a bill which contained neither of the provisions referred to in the preceding paragraph. An instruction was given to include what became paragraph 26(e) with the explanation:

Pastoral leases under the South Australian Acts contain a reservation in favour of the Aboriginals of the Northern Territory in the above terms, but pastoral leases under the existing Ordinance contain no such reservation. In consequence of this omission, it has been found that certain lessees under the existing Ordinance have arbitrarily ordered the natives away from natural waters and areas etc which they were accustomed to use or hunt over. In view of this treatment it has been decided that the rights of the natives must be respected and every pastoral lease under this Ordinance will contain a reservation in favour of the Aboriginal inhabitants of the Northern Territory.

87. As neither the terms of the Ordinance nor the circumstances surrounding its promulgation lead to a conclusion that the Crown Lands Ordinance 1912 manifests a clear and plain intention to extinguish existing native title rights and interests the conclusion cannot be reached that leasehold interests granted pursuant to it were intended to grant lessees a right to exclusive possession. The preferable view is that there was at all relevant times a recognition both of the continued presence of the Aboriginal inhabitants on pastoral land and of their right to so remain and exercise the rights to which they were accustomed. The situation in relation to pastoral leases granted under Northern Territory Ordinances cannot be distinguished from that which prevailed under the Queensland legislation and leases considered in Wik.

88. For the reasons I have expressed, I am of the opinion that no part of the claimed land has been the subject of an exclusive pastoral lease. It follows that none of the pastoral leases which have affected the claim area is a previous exclusive possession act for the purposes of the Native Title Act or the Validation Act.

CROWN LEASES PERPETUAL; CROWN LEASES TERM

89. Subclause 46(7) of Schedule 1 to the Native Title Act deals with leases under paragraph 23(b) (leases for a term of years) and 23(c) (leases in perpetuity) of the Crown Lands Act 1931-1991 and Crown leases under paragraph 26(a) (leases for a term of years) and 26(b) (leases in perpetuity) of the Crown Lands Act 1992. In the period from 1985 to 1993 six perpetual Crown leases and 9 term Crown leases were granted over parts of the claimed land. The following tables set out brief particulars of the leases in question:

(i) CLP 455 was granted in perpetuity to the Alice Springs Town Council with effect from 3 September 1985 for the purpose of a "public car park" which is a purpose specified in subclause 46(7). CLP 455 is a Scheduled interest.

(ii) CLP 445 and CLP 595 were granted in perpetuity to the Conservation Land Corporation with effect (in the case of CLP 445) from 24 April 1986 and (in the case of CLP 595) from 23 December 1986, in each case for the purpose of "carrying out the functions of the Conservation Commission of the Northern Territory in accordance with the Conservation Commission Act and the Territory Parks and Wildlife Conservation Act". The purpose of the grants is not a purpose specified in subclause 46(7). Neither is a Scheduled interest.

The leases are in similar terms. In each case there are covenants not to use the land for a purpose other than the lease purpose and for the lessee to pay rates and taxes which may at any time become due in respect of the leased land. The leases do not impose any obligation to pay rent or to expend money in developing or improving the land.

The functions of the Conservation Commission of the Northern Territory are set out in s 19 of the Conservation Commission Act. At the time each lease was granted s 19 provided:

19. The functions of the Commission are to -

(a) promote the conservation and protection of the natural environment of the Territory;

(b) establish and manage parks, reserves and sanctuaries;

(c) undertake and assist in education concerned with, and research into, matters relating to the environment;

(d) assist in soil conservation;

(e) assist in the development of environmental impact studies;

(f) monitor and assist in the management of the impact of development on the environment;

(g) co-operate with and assist any person, (including the owners of Aboriginal land) organisation or government authority in matters relating to the environment; and

(h) carry out such other functions as are conferred on it by this Act or any other Act.

Section 19 was repealed by s 22 of the Conservation Commission Amendment Act 1995 and the following new section substituted:

19. The functions of the Commission are:

(a) to promote the conservation and protection of the natural environment of the Territory

(i) by managing or participating in the management of -

A) parks, reserves and sanctuaries established under the Territory Parks and Wildlife Conservation Act or any other Act of the Territory or the Commonwealth; and

B) other land by agreement with the owners or occupiers of that land;

(ii) by the promotion, and the enforcement where necessary, of the protection, conservation and sustainable use of wildlife, whether on such parks, reserves or sanctuaries or elsewhere in the Territory; and

(b) the management, for a purpose approved by the Minister, of other land,

and such other functions as are conferred on it by or under this or any other Act.

The granting of CLPs 445 and 595 for the purpose specified does not indicate a clear and plain intention to extinguish existing native title rights and interests. The statutory functions of the Conservation Commission are not such that their performance in relation to the leased land would be inconsistent with the continuation of native title nor do they require the lessee of the land to have a right to exclusive possession. In these circumstances the leases cannot properly be regarded as granting a right to exclusive possession and are therefore not leases of the type described in s 23B(2)(c)(viii) of the Native Title Act.

CLP 445 and CLP 595 are not previous exclusive possession acts.

Further reference will be made later to the status of the land covered by CLP 445 and CLP 595 when dealing with land held for conservation and like purposes.

(iii) CLP 764 was granted in perpetuity to the Mbantarinya Aboriginal Corporation with effect from 14 March 1990 for the purpose of "traditional village, residential and ancillary" which is not a purpose specified in subclause 46(7) of Schedule 1. CLP 764 is not a Scheduled interest, nor is it a residential lease. There is nothing about either the purpose for which the lease was granted or the form of the lease that would suggest an intention other than to grant the lessee a right of exclusive possession. CLP 764 is a lease of the type described in s 23B(2)(c)(viii).

Section 23B(9) excludes from the definition of "previous exclusive possession act" an act which is:

(a) the grant or vesting of anything that is made or done by or under legislation that makes provision of the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(b) the grant or vesting of anything expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(c) the grant or vesting of anything over particular land or waters, if at the time anything covered by paragraph (a) or (b) is in effect in relation to the land or waters.

CLP 764 was granted under the Crown Lands Act 1931 which is not legislation of the type described in s 23B(9)(a). The grant was not expressly for any of the purposes described in s 23B(9)(b). The fact that the lessee is a corporation incorporated under the Aboriginal Corporations Act (Cth) does not clothe the grant with the characteristics referred to in 23B(9). CLP 764 is not caught by that subsection. It is a previous exclusive possession act.

Before leaving CLP 764 it will be convenient to refer to s 47A of the Native Title Act which was inserted by the 1998 amending Act. Subsections (1) and (2) of s 47A provide:

47A (1) This section applies if:

(a) a claimant application is made in relation to an area; and

(b) when the application is made:

(i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and

(c) when the application is made, one or more members of the native title claim group occupy the area.

(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:

(a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);

(b) the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).

Section 47A does not apply to the land covered by CLP 764. The lease was not granted under legislation of the type referred to in s 47A(1)(b)(i) nor is the land held expressly on any of the bases referred to in s 47A(1)(b)(ii).

(iv) CLP 770 was granted in perpetuity to the Conservation Land Corporation with effect from 16 August 1990 for the purpose of "carrying out the functions of the Conservation Commission of the Northern Territory in accordance with the Conservation Commission Act and the Territory Parks and Wildlife Conservation Act. The purpose of the grant is not a purpose specified in subclause 46(7). CLP 770 is not a Scheduled interest.

The terms of CLP 770 are substantially similar to those of CLP 445 and CLP 595 but include additional covenants to give access to authorised officers of the Power and Water Authority to all pluviograph sites and gauging stations and upon request to surrender without compensation such part of the land as may reasonably be required for the purpose of providing a 200 metre wide corridor along the route of any proposed railway.

For the same reasons as are expressed above in relation to CLP 445 and CLP 595, CLP 770 is not a previous exclusive possession act.

Further reference will be made later to the status of the land covered by CLP 770 when dealing with land held for conservation and like purposes.

(v) CLP 1116 was granted in perpetuity to the Conservation Land Corporation with effect from 2 June 1993 for the purpose of "Wildlife Park, Desert Botanic Gardens and ancillary" which is not a purpose specified in subclause 46(7) of Schedule 1. CLP 1116 is not a Scheduled interest.

CLP 1116 covers an area of 1306 acres. It contains the usual covenant to use the land only for the purpose for which it was granted. The lease does not impose any obligation to pay rent or to expend money in developing or improving the land. Section 23B(9A) of the Native Title Act excludes from the definition of "previous exclusive possession act" a grant or vesting which 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. A grant to the Conservation Land Corporation for the purpose of "Wildlife Park, Desert Botanic Gardens and ancillary" is clearly within the ambit of s 23B(9A).

CLP 1116 is not a previous exclusive possession act.

(vi) CLT 101, CLT 104, CLT 411 and CLT 511 were each leases for a term of years granted under paragraph 26(a) of the Crown Lands Act 1992. [In the applicants' final submissions (Chapter 6, paragraph 22.3) it is suggested that CLT 104 may have been invalidly granted in respect of land within Reserve 888 which was not revoked until June 1984. This submission is erroneous as CLT 104 did not extend to any land within Reserve 888]. Each lease is expressed to have been granted for "subdivisional purposes". The purposes specified in subclause 46(7) include "commercial property subdivision" and "residential subdivision". As it is not possible to conclude from the lease instruments that the leases were granted solely or primarily for one or other or both of those purposes, it is not possible to find that they are Scheduled interests. In each case the respective lessee undertook the obligation to subdivide the leased land in accordance with a Development Deed or a Development Agreement and upon completion was entitled to a grant of an estate in fee simple in the land provided that any land not zoned for residential or business purposes (e.g. roads, drains etc) would vest in the Territory, but the lessee was nevertheless entitled to use such last mentioned land for the purpose of providing services associated with the subdivision. Each of the leases was clearly intended to grant a right to exclusive possession. Each is a lease of the type described in s 23B(2)(c)(viii).

(vii) CLT 550 was granted for a term of 6 months from 14 March 1980 for the purpose of "residential subdivision development". The purposes specified in subclause 46(7) include "residential subdivision". It is not possible to distinguish between the purposes "residential subdivision development" and "residential subdivision". CLT 550 is a Scheduled interest.

(viii) CLT 721 was granted for a term of 48 months from 11 September 1987 for the purpose of "rural residential subdivision". The purposes specified in subclause 46(7) include "residential subdivision". A lease permitting the use of land for the purpose of "rural residential subdivision" permits the land to be used solely or primarily for the purpose of a "residential subdivision". CLT 721 is a Scheduled interest.

(ix) CLT 1132 was granted for a term of 18 months from 2 September 1996 for the purpose of "retardation dam and ancillary" which is not a purpose specified in subclause 46(7). CLT 1132 is not a Scheduled interest.

The lease was granted to a company named Rubinos Pty Ltd which covenanted, inter alia:

(a) Not use the leased land for a purpose other than the purpose for which it was leased, viz Retardation Dam and Ancillary.

(b) Within 6 months from the date of commencement of the lease or within such further time as may be approved in writing by the Minister for that purpose, to commence construction of the Retardation Dam in accordance with the lease purpose on the leased land to the satisfaction of the Minister and the Alice Springs Town Council and complete the improvements to the satisfaction of the Minister and the Alice Springs Town Council within 12 months of the date of commencement of the lease or within such further time as may be approved in writing by the Minister.

On completion of development the lessee was entitled to surrender the whole of the lease in exchange for an estate in fee simple in favour of the Alice Springs Town Council at no further cost to the lessee except such fees as may be required by the Registrar-General.

Section 246(1) of the Native Title Act provides:

A commercial lease is a lease (other than a mining lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for business or commercial purposes. The defining of agricultural lease, pastoral lease and residential lease in sections 247, 248 and 249 is not intended to limit the coverage of commercial lease.

CLT 1132 discloses that the sole or primary purpose of the lease was to permit the lessee to undertake the building of a retardation dam for the Alice Springs Town Council, which was clearly a business or commercial purpose. CLT 1132 is a commercial lease of the type described in s 23B(2)(c)(iii).

(x) CLT 1136 was granted for a term of 2 years from 1 October 1996 for the purpose of "car parking facilities" which is not a purpose specified in subclause 46(7). CLT 1136 is not a Scheduled interest.

The lease was granted to John Michael Nunan and Terrence Michael Nunan who covenanted, inter alia:

(a) Not to use the leased land for a purpose other than the purpose for which it was leased, viz car parking facilities.

(b) Within one year from the date of commencement of the lease or within such further time as may be approved in writing by the Minister for that purpose, to commence to develop car parking facilities in accordance with plans to be submitted to, and approved by the Department of Lands, Planning and Environment, and to complete the development within 18 months from the date of commencement of the lease or within such further time as may be approved in writing by the Minister.

(c) The Lessees were entitled, upon completion of development in terms of the lease and upon payment of any monies owing to the Territory, to surrender the whole of the lease in exchange for an estate in fee simple at nil cost, subject to payment of any lodgement fees required by the Registrar-General and consolidation with Lot 2495.

The lease discloses that the sole or primary purpose of the lease was to permit the lessees to develop car parking facilities on the leased land with the view of obtaining a title to the land in fee simple, an activity that was clearly a business or commercial purpose. CLT 1136 is a commercial lease of the type described in s 23B(2)(c)(iii).

(xi) CLT 1150 was granted for a term of 5 years from 26 September 1997 for the purpose of "development of recreational facilities and ancillary". As the lease was granted after 23 December 1996 it is not a lease to which s 23B applies.

MISCELLANEOUS LEASES

90. Subclause 45(1) of Schedule 1 of the Native Title Act deals with miscellaneous leases under Division 5 of Part III of each of the Crown Lands Ordinance 1912 (No 3 of 1912) the Crown Lands Ordinance 1912, the Crown Lands Ordinance 1924, the Crown Lands Ordinance 1927 (North Australia) the Crown Lands Ordinance 1927 (Central Australia) or section 25DAA, 74D or 74E or Division 5 of Part III of the Crown Lands Act 1931-1991.

Section 69 of the Crown Lands Ordinance 1931 as originally enacted provided:

69. The Board may, subject to this Ordinance, grant to any person a lease of any portion of Crown lands, or of any dedicated or reserved lands, except any reserved lands within the boundaries of any town, which have been placed by proclamation under the care, control and management of the town council and lands reserved for the use and benefit of the Aboriginal inhabitants of the Northern Territory, for any prescribed purpose or for any purpose approved of by the Minister:

Provided that no lease shall be granted under this section for pastoral, cultivation or mixed farming and grazing purposes.

(In 1938 the section was amended to refer to the Administrator in lieu of the Board).

The form of the section but not (for present purposes) its substance was amended by the Crown Lands Ordinance (No 2) 1959 (No 2 of 1959) to provide as follows:

69.(1) The Minister may, subject to this Ordinance, grant to any person a lease of any portion of Crown lands, or of any dedicated or reserved lands, for any prescribed purpose or for any purpose approved of by the Administrator.

(2) The last preceding sub-section does not authorize the grant of a lease:

(a) of reserved lands within the boundaries of a municipality, being reserved lands that have been placed under the trusteeship of the council of that municipality;

(b) of reserved lands within the boundaries of any town which have been reserved for any public purposes under section one hundred and three A of this Ordinance unless the trustees thereof recommend the grant;

(c) of lands reserved for the use and benefit of the Aboriginal native inhabitants of the Northern Territory;

(d) of lands reserved for forest reserves or for the purposes of afforestation and sylviculture; or

(e) of reserved lands that have been committed to the care, control and management of the Northern Territory Reserves Board, unless that Board recommends the grant.

(3) Nothing in this section, or in regulations made for the purposes of this section, authorizes the grant of a lease for pastoral, cultivation or mixed farming and grazing purposes.

Other provisions of the Ordinance which have some bearing upon the issues to be discussed below are sections 70, 71 and 72 which provided:

70.(1) The Administrator may declare any Crown lands within ten miles of the town of Darwin or any other town or site for a town to be garden lands.

(2) Leases of garden lands shall only be granted for vineyards, orchards or gardens.

(3) A lease of garden lands shall be a miscellaneous lease within the meaning of this Division.

(4) A lease of garden lands shall not be granted for any area exceeding ten acres.

71.(1) Leases under this Division shall be called miscellaneous leases, and shall be for a term not exceeding twenty-one years, and shall contain such reservations, covenants, conditions, and restrictions as are prescribed, or as the Administrator thinks necessary to provide in the circumstances of the case.

(2) In the case of any existing lease which was granted for a period less than twenty-one years under this Division of this Ordinance or under any Ordinance previously in force in the Northern Territory or North Australia or Central Australia, the Minister may, upon application by the lessee, and if the lessee has complied with all the covenants and conditions of the lease, extend the lease for such period as he thinks fit, but so that the term of the lease as so extended shall not exceed twenty-one years.

72. Every miscellaneous lease shall express the purpose for which it is granted and shall contain a covenant by the lessee that he will use the leased land only for the purpose expressed in the lease.

In the period from 1920 to 1968 seventeen miscellaneous leases were granted over parts of the claimed land. The following table sets out brief particulars of the leases in question:

(i) ML 38 was granted for a term of 21 years from 1 January 1920 for the purpose of "cultivation of fruit and vegetables" which is not a purpose specified in subclause 45(1), however, the purposes specified in subclause 45(1) include "cultivation" and "fruit growing". As the purpose for which the lease was granted is entirely encompassed by the Schedule purpose "cultivation", ML 38 is a Scheduled interest.

(ii) ML 217 was granted for a term of 4 years from 1 July 1941 (subsequent to the promulgation of the Crown Lands Ordinance 1931) for the purpose of "Business purposes, ie poultry farm, piggery, garden and orchard". The lease covers land entirely within the boundaries of ML 38 which expired on 31 December 1940. The purposes specified in subclause 45(1) include "poultry farm", "piggery", "garden" and "orchard".

There is however some doubt as to the validity of the lease. If, as the applicants submit, the purposes of "garden" and "orchard" are properly to be construed as "cultivation purposes", then the lease was granted contrary to the prohibition in s 69 of the Ordinance. Further, assuming for present purposes that the land had been declared to be garden lands under s 70(1) (as to which there is no evidence), it could not have been a valid lease of garden lands as the area granted (20 acres) exceeded the limit of 10 acres imposed by s 70(4). As the whole of the and in question lay within the land granted by ML 38, which the applicants concede is a previous exclusive possession act, no purpose is to be served by pursuing the question of the validity of ML 217.

(iii) ML 271 was granted for a term of 21 years from 1 July 1943 for the purpose of "Establishing a leave and recreational centre for women" which is not a purpose specified in subclause 45(1). ML 27 is not a Scheduled interest.

The lessee is described as "The Chief Medical Officer in respect of Alice Springs in the Northern Territory of Australia and his successors in office in an acting or permanent capacity". The respondent submits that ML 271 is "a community purposes lease", a term defined in s 249A as 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 purpose lease or that it is granted solely or primarily for community, religious, educational, charitable or sporting purposes.

The applicants say that the purposes which follow "community" in paragraph (a) of s 249A define and limit the class of community purposes embraced by the definition. I disagree. The several purposes specified have a distinctive character of their own; they have nothing in common which would justify construing "community", in the context in which it appears, in any restricted sense. The purpose of the lease was to provide a facility for the benefit of women generally and in my view that is a community purpose. ML 271 is a community purposes lease.

(iv) ML 380 was granted for a term of 14 years from 1 July 1948. The lease does not state any purpose for which it was granted although the purpose "Business (gardening)" is noted on an administrative record which is in evidence. The failure to express in the lease the purpose for which it was granted was in direct violation of a requirement of s 72, an oversight that was not capable of correction by some subsequent administrative act. Section 72 specifically required the lease to contain a covenant by the lessee that he will use the land only "for the purpose expressed in the lease" (emphasis added). Had the section provided that the lessee covenant to use the land only for the purpose for which the lease was granted, it may have been possible to look to extrinsic evidence to establish that purpose and so give substance to the covenant, but that is not the case. As the lease did not express the purpose for which the land was leased, it did not comply with the statute which authorised its grant. The execution of the lease in the form described would not have been a previous exclusive possession act. The respondent relies upon the fact of registration of the lease under the Real Property Act to cure any defect in the grant, it being said that registration guarantees an absolute and indefeasible title to the land. Be that as it may, s 23B(2) applies only to acts which are valid and whatever rights registration may have conferred on persons dealing with the lessees, the lease when granted was invalid, thus a nullity. The respondent's proposition, if accepted, would mean that the administrative act of registering the lease under the Real Property Act not only cured its invalidity but also had the effect of extinguishing any existing native title rights and interests in the land. Such a proposition does not sit comfortably with either the general thrust of dicta of various Judges in both Mabo No 2 and Wik which emphasise the need for a clear and plain intention in order to extinguish native title, or with the requirement of s 23B(2)(a) of the Native Title Act that the initial criterion to establish a previous exclusive possession act is that the act is valid.

(v) ML 394 was granted for a term of 14 years from 1 July 1948 for the purpose of "Business (convalescent and tourist camp) purposes" which is not a purpose specified in subclause 45(1). ML 394 is not a Scheduled interest.

The lease contains the usual covenants on the part of the lessee requiring that the land be used only for the purpose for which it was leased. It also contains covenants on the part of the lessee :

(a) Within 6 months from the date of commencement of the lease, to furnish to the Administrator of the Northern Territory a detailed plan of all improvements proposed to be effected on the leased land; and

(b) Within 12 months from the date of commencement of the lease, to establish on the leased land an efficiently organised and maintained Convalescent and Tourist Camp and to maintain such Camp throughout the currency of the lease.

The lease discloses that it permitted the lessee to use the land solely or primarily for business or commercial purposes. ML 394 is a commercial lease of the type described in s 23B(2)(c)(iii).

(vi) ML 429 was granted for a term of 21 years from 1 July 1949 for the purpose of "Business (stock holding paddocks)" which is not a purpose specified in subclause 45(1). ML 429 is not a Scheduled interest.

The lease was granted to Dalgety and Company Limited, a company well known as a stock and station agent involved, inter alia, in the pastoral industry. The area covered by the lease was a little more than 252 acres. Apart from the usual conditions, including the obligation to use the land only for the purpose for which it was leased the lessee covenanted that it would, "within twelve (12) months from the commencement of the term of the lease, enclose the leased land with a good substantial fence to the satisfaction of the Administrator, and keep same in good order and repair". Neither the lease nor the purpose for which it was granted suggests other than that it was intended to grant a right to exclusive possession. It has however been suggested that the lease was granted for pastoral purposes, a purpose for which a miscellaneous lease could not be granted.

Section 69 of the Crown Lands Ordinance 1931 under which the lease was granted, prohibited the granting of a miscellaneous lease for "pastoral, cultivation or mixed farming and grazing purposes". The Ordinance contained separate provisions for pastoral and agricultural leases. In each case particular covenants appropriate to the type of activity to be conducted on the land were required to be included in the lease. The provisions relating to miscellaneous leases were much less stringent. The prohibition against the granting of miscellaneous leases for purposes covered by other particular provisions in the Ordinance ensured that those provisions could not be avoided by the device of granting a lease under s 69. In these circumstances, the expression "pastoral" used in s 69 should be understood in the same sense as it is used in Division 2 of Part III of the Ordinance, namely, the grazing of stock on large tracts of otherwise undeveloped land in remote areas. On this basis a lease of a relatively small area in close proximity to an established town for the express purpose of "stock holding paddocks" would not be in conflict with s 69. The definition of "pastoral lease" in s 248 of the Native Title Act, cannot affect the validity of the original grant, although for the purposes of that Act the lease may well be regarded as a pastoral lease. This would be so if the lease permits the land to be used solely or primarily for "maintaining or breeding sheep, cattle or other animals" or for "any other pastoral purpose" The obvious purpose of stock holding paddocks is to enable stock to be contained pending either their sale, slaughter or relocation. Such a purpose does not fit within the ordinary concept of "maintaining" stock nor of a "pastoral purpose"; rather when carried on by a large stock agent it is more appropriately to be regarded as a business or commercial activity. In these circumstances I am of the opinion that ML 429 was validly granted as a miscellaneous lease. As it was a lease which permitted the lessee to use the land solely or primarily for business or commercial purposes it is a commercial lease of the type described in s 23B(2)(c)(iii).

(vii) ML 430 was granted for a term of 14 years from 1 July 1949 for "Residential (tourist hostel) purposes" which is not a purpose specified in subclause 45(1). ML 430 is not a Scheduled interest.

In addition to the usual covenant on the part of the lessee requiring that the land be used only for the purpose for which it was leased, the lease contained covenants, inter alia:

(a) Within 1 year from the date of commencement of the lease to fence the external boundaries of the leased land with a good substantial fence and to maintain such fence in good order and condition throughout the currency of the lease; and

(b) To erect improvements to the value of at least £2,500 within 2 years from the date of the commencement of the lease.

The lease permitted the lessee to use the land solely or primarily for business or commercial purposes. ML 430 is a commercial lease of the type described in s 23B(2)(c)(iii).

(viii) ML 434 was granted for a term of 12 years from 1 July 1949 for the purpose of "Business (garage and service station) and residential purposes". The purposes specified in subclause 45(1) include "garage", "service station" and "residence" which coincide with the purpose mentioned in the lease. ML 434 is a Scheduled interest.

(ix) ML 442 and ML 443 were each granted for a term of 20 years from 1 July 1950 for the purpose of "Business Purposes (stock holding paddock)" which is not a purpose specified in subclause 45(1). ML 442 and 443 are not Scheduled interests.

ML 442 was granted to Bennett & Fisher Limited and covered an area of 167½ acres; whilst ML 443 was granted to Goldsbrough Mort & Company Limited over 135½ acres. ML 443, but not ML 442, contains a fencing covenant in the same terms as that quoted above in relation to ML 429. For the same reasons as are expressed in relation to ML 429, each of ML 442 and 443 was validly granted as a miscellaneous lease and each is a commercial lease of the type described in s 23B(2)(c)(iii).

(x) ML 456 was granted for a term of 21 years from 1 July 1950 for the purpose of "Residence and business (riding school)" which is not a purpose specified in subclause 45(1). ML 456 is not a Scheduled interest.

In addition to the usual covenant on the part of the lessee requiring that the land be used only for the purpose for which it was leased, the lease contains a covenant, requiring the lessee within 12 months from the commencement of the term of the lease to erect on the leased land buildings and other improvements to the value of at least £1,000, and within 12 months from the commencement of the term of the lease to enclose the land with a good substantial fence and thereafter to keep same in good order and repair.

The lease does not provide any guidance as to the particular activity that would be involved in conducting a riding school nor the relevance of the reference to "residence" in the stated purpose of the lease, but having regard to the area of the land leased (over 440 acres) and the fact that to conduct a riding school it would be necessary for horses to be stabled and looked after, it is open to infer that residence on the land would be merely ancillary to the primary purpose of conducting the business of a riding school. As the lease permitted the lessee to use the land solely or primarily for business or commercial purposes it is a commercial lease of the type described in s 23B(2)(c)(iii).

(xi) ML 482 was granted for a term of 19 years from 1 July 1952 for the purpose of "Business (riding school) only" which is not a purpose specified in subclause 45(1) of Schedule l. ML 482 is not a Scheduled interest.

The lease contains the usual covenant on the part of the lessee requiring that the land be used only for the purpose for which it was leased which is a business or commercial purpose. ML 482 is a commercial lease of the type described in s 23B(2)(c)(iii).

(xii) ML 483 was granted for a term of 9 years from 1 July 1952 for the purpose of "Business (horse training) and residential purposes only" which is not a purpose specified in subclause 45(1). ML 483 is not a Scheduled interest, nor is it a lease which permits the land to be used solely or primarily either for business purposes or for constructing or occupying a private residence. Accordingly, it is neither a commercial lease nor a residential lease for the purposes of s 23B.

The lease contains a covenant on the part of the lessee to enclose the land with a good and substantial fence within 12 months from the commencement of the term, and to keep the same in good order and repair. The lessee had the right (but not any obligation) to remove all lessee's improvements, fixtures etc fixed or erected on the leased land on or before the determination of the lease. There is nothing about the lease or the purpose for which it was granted to suggest that the intention was other than to grant a right of exclusive possession. ML 483 is a lease of the type described in s 23B(2)(c)(viii).

(xiii) ML 503 was granted for a term of 21 years from 1 July 1954 for the purpose of "Business (holding grounds for goats) purposes" which is not a purpose specified in clause 45(1). ML 503 is not a Scheduled interest.

The lease covered an area of about 5028 acres and apart from the usual covenants, including a covenant to use the land only for the purpose for which it was leased, it imposed an obligation on the lessee within 3 months from the commencement of the lease to enclose the land with a good substantial fence. The validity of the lease has been questioned on the ground that it was granted for pastoral purposes contrary to s 69. Although the area granted is substantially greater than the areas covered by MLs 429, 442 and 443, for the same reasons as are expressed in relation to those leases, ML 503 was not granted for pastoral purposes and was valid. As the lease was granted for business or commercial purposes it is a commercial lease of the type described in s 23B(2)(c)(iii).

(xiv) ML 516 was granted for a term of 8 years from 1 July 1959 for the purpose of "Business (gardening) purposes only". If the lease was valid it permitted the lessee to use the land solely or primarily for the purpose of a "garden" which is one of the purposes described in subclause 45(1). It would also be within the definition of a commercial lease.

The lease was granted to Herbert William Ellis who is described as "gardener"; it covered an area of about 12½ acres. The applicants assert that as "gardening" is equivalent to "cultivation" there was no authority pursuant to s 69 for the lease to be granted under that section and further because the area granted exceeded 10 acres, the lease could not have been validly granted as a lease of garden lands under s 70. Support for the applicants' submission can be found in the Ordinance. In Division 3 of Part III (which deals with agricultural leases) one of the covenants that was required to be contained in an agricultural lease was a covenant to "cultivate the land to the extent and in the manner notified by the Administrator ..." (s 64(1)(c)). This suggests that the reference to "cultivation" in s 69 was intended to prohibit the granting of a miscellaneous lease for a purpose which would come within the provisions relating to agricultural leases and thus be required to comply with the more stringent provisions of Division 3 rather than merely those of Division 5. ML 516 was not validly granted as a miscellaneous lease. For reasons previously expressed, the registration of the lease under the Real Property Act did not remedy the invalidity. ML 516 is not a previous exclusive possession act.

(xv) ML 534 was granted in perpetuity commencing from 1 July 1968 for the purpose of "orchard and poultry farm". The purposes specified in subclause 45(1) include "orchard" and "poultry farm" which coincide with the purpose for which the lease was granted. ML 534 is a Scheduled interest.

(xvi) ML 535 was granted in perpetuity commencing from 1 July 1968 for the purpose of "orchard" which is a purpose specified in subclause 45(1). ML 535 is a Scheduled interest.

SPECIAL PURPOSE LEASES

91. Subclause 44(1) of Schedule 1 to the Native Title Act deals with special purpose leases granted under earlier South Australian legislation as well as those granted under the Special Purposes Leases Act (formerly the Special Purposes Leases Ordinance 1953) of the Northern Territory. In the period 1959 to 1975 nine leases were granted over parts of the claimed land pursuant to s 4 of the Special Purposes Leases Act. The following table sets out brief particulars of the leases in question:

(i) SPL 58 and SPL 59 were each granted for a term of years running from 10 December 1959. In the case of SPL 58 the term was 99 years, and in the case of SPL 59, it was for 21 years. The stated purposes for which the leases were granted were "business and residential purposes only" (SPL 58) and "private recreation area" (SPL 59). Neither of those purposes is specified in subclause 44(1). It is clear from the evidence that the two leases in combination were granted for the purpose of enabling the lessee to build and operate a motel. SPL 59 relates to land adjacent to SPL 58 and was granted to facilitate the business enterprise of the motel which was to be constructed on SPL 58. In these circumstances each lease is properly to be regarded as a lease which permits the lessee to use the land or waters covered by the lease solely or primarily for business or commercial purposes. Each is a commercial lease of the type described in s 23B(2)(c)(iii).

(ii) SPL 82 was granted for a term of 99 years from 1 October 1960 for the purpose of "golf course and for the recreation and amusement of members of the Alice Springs Golf Club Inc only". The purposes specified in subclause 44(1) include "golf course" and "golf club". The purpose for which the lease was granted is embraced within those two purposes. SPL 82 is a Scheduled interest.

(iii) SPL 92 was granted for a term of 21 years from 17 April 1961 for the purpose of "lookout and viewing facility for tourists". The purposes specified in subclause 44(1) include "tourist theme park or facility". The purpose for which the lease was granted is clearly a "tourist facility". SPL 92 is a Scheduled interest.

(iv) SPL 174 was granted for 25 years from 8 March 1966 for "quarrying purposes only". The Native Title Act defines the terms "mine" (in s 253) and "mining lease" (in s 245) as follows:

Mine includes:

(a) explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c)); or

(b) extract petroleum or gas from land or from the bed or subsoil under waters; or

(c) quarry;

but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than:

(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or

(e) processing the sand, gravel, rocks or soil by non-mechanical means.

A mining lease is a lease (other than an agricultural lease, a pastoral lease or a residential lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for mining.

Having regard to these definitions a lease granted for "quarrying purposes only" must be treated as a "mining lease" and even assuming it to grant a right to exclusive possession, it would not come within the scope of s 23B (2)(c)(viii) and is not a previous exclusive possession act.

(v) SPL 221 and SPL 222 were both granted in perpetuity with effect from 2 September 1969 following the surrender of SPLs 58 and 59. SPL 221 was granted for the purpose of "business (motel), ancillary" whereas the stated purpose of SPL 222 is "private recreation area and purposes ancillary to the purpose of Lot No 2488". Lot No 2488 is the land leased pursuant to SPL 221. One of the purposes specified in subclause 44(1) is "motel" and clearly the purpose for which SPL 221 was granted matches that description. SPL 221 is a Scheduled interest.

The purpose for which SPL 222 was granted is not included in the purposes specified in subclause 44(1) but having regard to the fact that the purpose of the grant was ancillary to a lease granted for the purpose of the business of a motel, it can properly be regarded as having been granted solely or primarily for business or commercial purpose. SPL 222 is a commercial lease of the type described in s 23B(2)(c)(iii).

(vi) SPL 337 was granted for a term of 50 years from 11 September 1972 for the purpose of "private sports site (speedway) and ancillary". One of the purposes mentioned in subclause 44(1) is "speedway" which matches the purpose for which the lease was granted. SPL 337 is a Scheduled interest.

(vii) SPL 364 was granted for a term of 10 years from 8 August 1975 for the purpose of "major wireless aerial site". One of the purposes mentioned in subclause 44(1) is "wireless aerial site" which matches the purpose for which the lease was issued. SPL 364 is a Scheduled interest.

AGRICULTURAL LEASES

92. Subclause 43(1) of Schedule 1 to the Native Title Act deals with leases of agricultural land, or agricultural leases, under Division 3 of Part III of each of the Crown Lands Ordinance 1912 (No 3) Crown Lands Ordinance 1912, the Crown Lands Ordinance 1924, the Crown Lands Ordinance 1927 ( North Australia), the Crown Lands Ordinance 1927 (Central Australia), section 25CG, 25DAA, 74A or 74D or Division 3 of Part III of the Crown Lands Act 1931-1991 or section 14 of the Agricultural Development Leases Ordinance 1956, or under the Agreement a copy of which is set out in the Schedule to the Rice Development Agreement Ordinance 1956 of the Commonwealth, other than:

(a) an agricultural (mixed farming and grazing) lease; or

(b) a lease that:

(i) permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

(ii) does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

93. In the period from 1944 to 1959 twelve agricultural leases were granted in relation to parts of the claimed land pursuant to Division 3 of Part III of the Crown Lands Ordinance 1912. The following table sets out brief particulars of the leases in question:

(i) Two Agricultural (Mixed Farming and Grazing) Leases each numbered AL 423 were granted in perpetuity for the purposes of "mixed farming and grazing". The first was granted on 3 October 1944 over an area of slightly more than 46 acres. It was later cancelled and a second lease was granted on 28 June 1954 for a term commencing on the same date as the original lease. The area of land was however reduced to a little more than 40 acres. By virtue of subclause 43(1)(a) AL 423 is not a Scheduled interest.

Each lease imposed obligations on the lessee, inter alia,

(a) to stock the land with not less than a specified number of cattle or sheep;

(b) to progressively clear and cultivate specified areas of the land;

(c) to establish a home on the land within 2 years after the commencement of the lease and, subject to any exemption granted for cause shown, to thereafter reside on the land for a period of 4 months in each year; and

(d) within the first 4 years of the lease to enclose the land with a substantial fence.

On any view each lease demonstrates an intention to grant a right to exclusive possession and not being a mining lease each is a lease of the type described in s 23B(2)(c)(viii).

(ii) ALs 499, 500, 501, 502, 503, 504, 514, 515, 522 and 704 were each granted in perpetuity with effect from various dates between 1 July 1950 and 1 July 1959, in each case for the purpose of "cultivation farm". Each is clearly an agricultural lease and therefore a Scheduled interest.

TOWN LEASES AND TOWN LAND SUBDIVISION LEASES

94. Clause 42 of Schedule 1 of the Native Title Act is refers to:

(1) A lease of town land under Division 4 of Part III of each of the Crown Lands Ordinance 1912 (No 3 ), the Crown Lands Ordinance 1912, the Crown Lands Ordinance 1924, the Crown Lands Ordinance 1927 (North Australia), the Crown Lands Ordinance 1927 (Central Australia) or section 25CF, 74A or 74D or Division 4 of Part III of the Crown Lands Act 1931-1991, other than a lease that:

(a) permits the lessee to use the land or waters covered by the lease solely or primarily for a harbour; or

(b) both:

(i) permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

(ii) does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

(2) A town land subdivision lease under Division 6 of Part III of the Crown Lands Act 1931-1991.

In the period from 1959 to 1982 six leases of the type referred to in either subclause (1) or subclause (2) of clause 42 were granted. The following table sets out particulars of the leases in question:

(i) LTL 1593 is a lease of town lands granted in perpetuity with effect from 1 July 1959 for the purpose of "business (garage and service station) and residential purposes". It is a Scheduled interest.

(ii) LTL 1598 is a lease of town lands granted in perpetuity with effect from 1 July 1959 for "residential purposes". It is a Scheduled interest.

(iii) LTL 2061 is a lease of town lands granted in perpetuity with effect from 1 July 1965 for the purpose of "business (industrial) and residential". It is a Scheduled interest.

(iv) LTL 2686 is a lease of town lands granted in perpetuity for "residential D purposes" It is a Scheduled interest.

(v) TLSL 9 and TLSL 10 are town land subdivision leases for a term of 6 months commencing (in the case of TLSL 9) on 1 July 1981 and (in the case of TLSL 10) on 1 July 1982. Each is a Scheduled interest. .

FREEHOLD ESTATES

95. On 8 November 1996 Power and Water Authority became the registered proprietor of a freehold estate in lot 5148 (area 34). The grant is a previous exclusive possession act attributable to the Northern Territory and is valid (Validation Act s 4A). The applicants concede that native title has been extinguished in relation to the area granted.

96. On 28 December 1995 Airservices Australia (a body corporate established under s 7 of the Airservices Act 1995 (Cth)) became the registered proprietor of a freehold estate in lot 8542 which was formed by the consolidation of former lots 8239 (area 164) and 2655 (not claimed). The grant of the freehold estate is a previous exclusive possession act only if it is valid (s 23B(2)(a)) and took place on or before 23 December 1996 (s 23B(2)(b)). As this grant took place on 8 November 1995 s 23B (2)(b) is satisfied. The question of the validity of the grant is however affected by the fact that it took place after 1 January 1994. It will be valid if it is an "intermediate period act" as defined by s 232A. The relevant part of s 232A is paragraph (2)(e) which requires that at any time before the act was done, either a grant of a freehold estate or lease (other than a mining lease) was made covering any of the land or waters affected by the act (s 232A(2)(e)(i)) or a public work was constructed or established on any of the land or waters affected by the act (s 232A(2)(e)(ii)). The land had not previously been the subject of a grant of a freehold estate or a lease.

The evidence of Anne Josephine Sleep (exhibit NT 35) establishes the following facts:

i) At the summit of the Macdonnell Range on the western side of Heavitree Gap (on land not subject to claim) there is a navigational aid and radio communications site owned by Airservices Australia.

ii) In 1967 an access road was constructed to the summit and in 1979, for safety reasons, the road was realigned to its present position with the approval of the Alice Springs Town Council.

iii) Since 1979 the access road has been situated on, inter alia, the area claimed as well as on other adjoining land.

iv) The road is used by many organisations (including Police and Emergency Services, television, radio and telecommunications organisations, and other government agencies and private organisations) for access to equipment installed at the summit with the approval of Airservices Australia.

v) The access road is maintained by Airservices Australia.

From these facts the following inferences are open:

a) The construction of the realigned access road in 1979 was carried out on behalf of the predecessor of Airservices Australia which at the time was the Commonwealth (See Civil Aviation Act 1988, s 49; Civil Aviation Legislation Amendment Act 1995, s 9);

b) The access road is open to and used by the public and is properly to be regarded as "a road" for the purposes of the definition of "public work" in s 253;

c) that at a time before the grant of the freehold estate was made to Airservices Australia, a public work was constructed or established on part of the land.

On the basis of these facts, the grant of a freehold estate to Airservices Australia on 8 November 1995 is an intermediate period act which by virtue of s 4A of the Validation Act, is valid. The grant is a previous exclusive possession act.

PUBLIC WORKS

97. Section 23B(7) of the Native Title Act 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.

and s 23C(2) provides:

(2) If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth:

(a) the 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; and

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

To understand the effect of these provisions it is necessary to refer first to the definition of "public work" in s 253 -

public work means:

(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

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

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

(iv) any major earthworks; or

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

and to s 251D, which states:

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.

(In these reasons, a reference to "adjacent land" in the context of the consideration of any matter relating to a public work is intended to refer to adjacent land of the type described in s 251D).

98. The respondent claims that there have been many instances of previous exclusive possession acts in respect of parts of the claimed land by the construction or establishment of public works.

There are a number of areas of claimed land which can readily be identified as being affected by public works and there are others in respect of which the evidence is inconclusive or in some cases deficient. In some cases the actual location of works has not been positively identified and in others the evidence does not touch upon the issue of whether the works were constructed or established by or on behalf of the Crown or other authority referred to in the definition. The identification of adjacent land has proved to be particularly difficult and in some instances nothing more than a general description in terms of the section has been relied upon. In such cases it will not be possible for the Court to make any definitive finding. Each of the areas which are said to be affected by a public work is dealt with below.

i) Areas 7 and 8 (Olive Pink Botanic Garden)

The respondent submits that buildings and structures established on land occupied by the Olive Pink Botanic Garden (Reserve 1281) (areas 7 and 8) including all land and waters within the boundary fence of areas 7 and 8 are public works as defined in the Native Title Act. In view of the conclusions expressed elsewhere concerning the Olive Pink Botanic Garden it is unnecessary to pursue the matter further.

ii) Area 31 (Explosives Reserve)

On 7 March 1985 the Northern Territory Minister for Mines and Energy declared NTP 1454 (area 31) to be the Alice Springs Government Explosives Reserve. The declaration was made pursuant to s 23(1) of the Dangerous Goods Act. The evidence establishes that the works relevant to the establishment of the explosives reserve were completed in 1980, prior to the declaration of the reserve. On the assumption that the Crown had the authority to construct the works prior to the declaration of the reserve, the applicants accept that the works in question are substantially "public works" as defined in s 253 and extinguish native title in the land on which the works are situated (s 23C) and whilst they do not accept that a fence is a public work or that, without more, the existence of a fence has any relevance in defining the area of adjacent land for the purposes of s 251D, in this instance it is accepted that the area of land surrounding the explosives compound, which is defined on three sides by the fenced boundaries of the reserve and on the south by a natural barrier, is necessary for, or incidental to, the operation of the public works. The applicants' concession is properly made. The whole of area 31 is affected by a previous exclusive possession act.

iii) Area 32 (Billygoat Hill)

During World War II the Australian Army was responsible for the installation of a number of water storage tanks on top of Billygoat Hill (area 32) and by 1958 there was a total of 11 tanks on the hill. The respondent says that all of the tanks and related works (piping etc) together with the whole of the balance of the land comprising area 32 is a public work for the purposes of the Native Title Act. All that presently remains is a few concrete pillars on which it is presumed one or more tanks may once have rested.

There is no evidence that any of the tanks were in fact fixtures in the sense of being affixed to the land. Indeed, in 1958, 10 of the tanks were described as "Squatters Tanks" which is suggestive of them simply resting on the ground and remaining in place by force of their own weight and the weight of the water within them.

In the absence of any other evidence it is not open to infer that the tanks themselves were fixtures although the contrary is probably the case in relation to the concrete pillars. However, there is no evidence as to what adjacent land was necessary for or incidental to, "the construction, establishment or operation" of the pillars.

iv) Area 33(Anzac Hill High School)

The Anzac Hill High School is situated on lot 2683 (area 33). It will be recalled that in 1995 the claim in relation to area 33 was amended so that -

The extent of the land which is subject to the application in land parcel 33 (lot 2683), being Anzac Hill High School is limited to that area of land which is satisfactory to the Mbanturanya/Arrente claimants to ensure the protection of the registered sacred site situated on that land. (exhibit A2.1)

The sacred site referred to is site 5650-0007 registered under the Northern Territory Aboriginal Sacred Sites Act 1989 but as there is no evidence to assist in defining the part of area 33 which is claimed it is not possible to make any meaningful finding.

The applicants accept that the High School buildings and land immediately surrounding them and used by the school constitute a public work but point out that about 40% of area 33 is outside and to the north of the school fence. The respondent asserts that the school buildings and all of the balance of area 33 other than "the area of land and waters within the registered sacred site (on the land) that is not reasonably required for access and maintenance of the public works" is a public work.

In view of the limited claim that is made in respect of area 33 and the other difficulties referred to, the best that be said is that to the extent that a public work is situated on the claimed land, the land is affected by a previous exclusive possession act.

v) Area 35 (Railway Line and Communications Tower)

A radio communications tower was constructed on part of lot 5192 (area 35) in 1975 at the time of the construction of the Tarcoola to Alice Springs railway line which itself runs through part of the lot. Both the railway line and communications tower were constructed by the Australian National Railways Commission. A manproof fence has been erected around the tower to protect it from interference or damage.

The respondent submits that the tower and railway line and all of the remaining land within area 35 constitute a public work. The applicants accept that the railway line and tower are public works which extinguish native title but say that there is no basis upon which to treat the whole of the area as land affected by those works.

As the whole of area 35 was within ML 503, a previous exclusive possession act, there is little purpose in debating the extent of the area of land that should be treated as adjacent land but it would seem that all land within the fenced area around the tower should be so treated and that as a general rule, for the purposes of public safety, land within a railway corridor should be regarded as being necessary for and incidental to the operation of the railway established within the corridor.

vi) Area 36 (Sadadeen Primary School)

The Sadadeen Primary and Special School is situated on lot 5651 (area 36), as is registered sacred site No 5650-0112.

As with the Anzac Hill High School, the application was amended so that -

The extent of the land which is subject to the application in land parcel 36 (lot 5651) being Sadadeen Primary School, is limited to that area of land which is satisfactory to the Mbarnturanya/Arrente claimants to ensure the protection of the registered sacred site situated on that land. (exhibit A 2.1)

The respondent submits that native title has been extinguished by public works in respect of the whole of lot 5651 "excluding the area of land and waters within the registered sacred site not reasonably required for access to the public works". The applicants accept that "the buildings of the school constitute public works and the land used for the operation of the school (is) also covered by s 251D".

A substantial part of area 36 was within ML 482 which is a previous exclusive possession act. There is no evidence as to the location within lot 5651 of the registered sacred site. In these circumstances it is not possible to make a conclusive finding other than to say that to the extent that a public work is situated on the claimed portion of area 36, it is affected by a previous exclusive possession act.

vii) Area 40 (Mt Blatherskite)

There is evidence that a 25,000 gallon galvanised iron water tank was constructed on lot 950 (area 40) during World War II. The respondent submits that the tank including an undefined area of adjacent land is a public work. The tank itself no longer exists although there is a flattened circular area of ground which could indicate the location where the tank stood. There is no evidence that the tank or any associated works were established by or on behalf of the Crown although it is likely that the work was carried out by the Allied Works Council on behalf of the American Army. As there is nothing before the Court to suggest that the tank was a fixture, the respondent's submission as to its status as a public work must fail.

viii) Area 41 (Survey Depot)

For some years until 1991 lot 1031 (area 41) was used as a survey depot by the relevant government department. The evidence suggests that this use commenced during the 1940s but no exact date is given. The witness statement of Terrence Leonard Gadsby, (a licensed surveyor who is presently the Manager, Land Information (Survey and Mapping) with the NT Department of Lands Planning and Environment), (exhibit NT 24) establishes that between 1968 and 1991 area 41 was, and still is, fenced with a manproof fence. There were two buildings on the land when Mr Gadsby commenced work at the site in 1968 and a third was constructed during the 1970s.

Mr Gadsby's evidence also touches upon an area of adjoining land. He says that part of lot 1605 adjacent to area 41 (area 45) was, during part of the 1970s, used as a storage area by the municipal authorities. Part of the lot was fenced and drums, sand, gravel and the like were kept there. Bitumen for road surfacing was also mixed at the site whilst another part of the lot was used as a carpark.

The respondent submits that all of the works described in Mr Gadsby's statement in relation to areas 41 and 45 are public works and it is said that all the land within the fencing is adjacent land. The applicants point out that Mr Gadsby does not state whether all or any of the buildings on area 41 were constructed by or on behalf of, or with the authority of, the Crown or a statutory authority. They also say that no basis is identified for concluding that the whole of the land within the fencing was necessary for, or incidental to, the operation of the works described.

Given the nature of the depot and the use to which it was put the Court is able to infer both that the works on area 41 were constructed by or with the authority of the Crown and that the use of the whole of the fenced area (i.e. the whole of area 41) was in fact necessary for the operation of the works.

The same conclusion cannot be drawn in relation to area 45 as to which there is no evidence of any building or structure in the nature of a fixture other than possibly the fence around part of the area. In any event there is no basis upon which it can be found or inferred that the fence was constructed by or on behalf of the Crown or a local government body or statutory authority. The evidence does not support the assertion that area 45 is affected by a public work.

ix) Area 44 (Old Explosives Magazine)

In about the mid 1960s an explosives magazine was established on lot 1602 (area 44). The magazine was created by tunnelling into a rockface. It was controlled by the Stores Section of the then Northern Territory Administration and was used to store ammunition and explosives for the Administration. The magazine was secured with a solid locked door and a small fully enclosed wire mesh fence and second locked gate. In 1968 Graeme Geoffrey Russell Braham, a former mechanical supervisor employed by the Commonwealth Department of Works in Alice Springs (whose witness statement is exhibit NT 22) supervised the venting of the magazine which was achieved by drilling holes through the rock from the outside, into the ceiling of the magazine. Mr Graham was also responsible for the installation of pipes and rotary vents.

The respondent submits that the magazine is a public work and that the whole of the balance of area 44 is adjacent land.

There can be no dispute that the magazine is a structure which is a fixture and it is clear from the evidence that it was constructed by or on behalf of the Commonwealth. It is also established by Mr Braham's evidence (contrary to the applicants' submission) that the area was fully enclosed by a wire mesh fence with a locked gate.

Given the nature and purpose of the structure and the relatively small area of land involved, it may be inferred that the whole of area 44 not actually occupied by the magazine was adjacent land.

x) Area 53 (Underground Concrete Shelters)

In 1970 the structures which are said to be a public work established on lot 3797 (area 53), were described as being the property of the Commonwealth and to consist of -

(a) 2 underground shelters each a room measuring 21' x 14' x 7' high at highest point of curved ceiling and walls of corrugated asbestos cement sheets supported by 2" angle iron trusses, earth floor, entry shaft of 6' x 6' x 10' deep with steel ladder attached to wall of similar construction to room, but with concrete floor fair condition with some rusting at the base of the angle iron trusses.

Raised concrete edge at top of shaft. Gallows or framework of 6" x 7" hardwood timber 8' high for raising heavy steel door or lid, fitting closely over shaft (only one lid). One gallows white ant eaten and weak. Ventilation shaft of 10" bore casing at rear of room extending about 15" above ground level.

(b) Concrete path 45' long x 3' wide connecting both shelters and extending beyond fenced area.

(c) Fenced on eastern and southern sides by 240' x 10' panels x 10 black barb wires with 3 wire droppers between posts. Posts are 7' high of 2" pipe set in concrete. Double gate of 2" piping and cyclone mesh.

There seems to be no doubt that the shelters described were built as air-raid shelters during World War II and were constructed by or on behalf of the Commonwealth. The applicants argue that the underground shelters having been built for a temporary purpose and being capable of being filled in, are not fixtures. With respect, such reasoning lacks any logical basis given the nature of the construction.

Area 53 is a square comprising 3640 square metres. Although there is no evidence as to the area of adjacent land that would have been incidental to the construction and operation of the air raid shelters it is fair to infer that given the extent of the excavation required and the purpose for which the shelters were constructed, the whole of area 53 should be treated as a public work.

xi) Area 70 (Army Blockhouse/Explosives Magazine)

A structure established on lot 5816 (area 70) which is described as "army blockhouse/explosives magazine" is said by the respondent to be a public work. The structure has concrete walls, concrete floor and a flat concrete roof and ceiling. Its interior is about 10 feet square and 9 feet high. The building has not been used for its intended purpose for some years and the evidence indicates that it is so solidly constructed that it would be costly to demolish it. There is no evidence to support any finding as to what adjacent area of land may have been required for its construction and operation.

Portion of area 70 is affected by ML 394 which is a previous exclusive possession act but there is no evidence as to the location of the structure in relation to the portion of area 70 covered by the former lease. All that can be said is that the structure itself is a public work.

xii) Area 93 (Alice Springs Fire Station)

The Alice Springs Fire Station is constructed on Lot 7728 (area 93). The building works commenced in about October 1996. The applicants accept that the works constitute a public work for the purposes of the Native Title Act but say that they do not constitute an intermediate period act and are therefore not valid.

The question of the validity of the works depends upon whether or not the original PL 1 was validly granted. This issue arises because one of the elements of an intermediate period act is that -

at any time before the act was done - a grant of a freehold estate or a lease (other than a mining lease) was made covering any of the land or waters affected by the act (s 232A(2)(e)(i)).

Area 93 has not been the subject of any prior grant of a freehold estate or a lease other than the original PL 1 issued in 1876 and then only for the period from the grant of the lease until the 1888 excision of the Telegraph Station Reserve.

The question as to the validity of PL 1 arises from the fact that the lease document issued in 1876 (or at least that relating to PL 2 which is presumed to be in identical terms to PL 1) purports to have been granted pursuant to the Waste Lands Act 1857 and the Waste Lands Amendment Act 1865-1866. Section 15 of the Northern Territory Act 1863 provided that save insofar as the 1857 and 1858 Acts were amended "they should be deemed to be incorporated herein, and shall, together with this Act, be read as one Act"; thus, it is said, the source of law for land in the Northern Territory was thereafter the Northern Territory Act 1863, incorporating the unamended provisions of the 1857 and 1858 Acts. The Northern Territory Act did not, unlike the 1857 Act, include any substantive provisions dealing with the leasing of land. On 30 November 1872 the Northern Territory Land Act 1872 was assented to. Section 6 of that Act provided:

6. From and after the coming into operation of this Act, all waste lands in the Northern Territory shall be sold, demised, or otherwise disposed of and dealt with in the manner and subject to the provisions of this Act, and not otherwise.

The term "waste lands" was defined to mean:

All lands in the Northern Territory vested in her Majesty which have not been, or may not hereafter be reserved for, or dedicated to any public purpose, or which have not been granted or lawfully contracted to be granted to any person in fee-simple... s.2.

Leases of waste lands are provided for in s 9 as follows:

9. All leases of waste lands pursuant to the provisions of this Act, shall be made by the Governor in the name and on behalf of her Majesty, and shall be executed in duplicate, whereof one part shall be signed by the Governor, and sealed with the seal of the Province and the other part shall be signed, sealed and delivered by the lessee.

The Act of 1872 provided, inter alia, that the Waste Lands Act (No 5 of 1857-58) and the Waste Lands Amendment Act (No 16 of 1865-66) shall not be of any force or effect whatever in the Northern Territory. The Northern Territory Act 1863 was not the subject of the repeal provisions. For the applicants it is said that whilst it may be that the lessee's right to a grant of the lease may have accrued under an earlier Act, the repeal of the earlier Acts required that any future grant must be made under and in accordance with the terms of the 1872 Act.

Various arguments have been raised by the respondent in reply to the applicants' submissions concerning the invalidity of PL 1 and although as an academic exercise it may be of interest to ponder what rights, if any, Mr Bagot may have legally enjoyed during the many years he occupied and operated his pastoral holding more than a century ago, it would seem that the simple answer to this issue is found in the Native Title Act itself. Section 242(1) provides:

242 (1) The expression lease includes:

(a) a lease enforceable in equity; or

(b) a contract that contains a statement to the effect that it is a lease; or

(c) 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.

The clear intention of the definition of the term lease in the Native Title Act is to avoid the type of theoretical discourse which PL 1 has provoked. If this were not so there would be no purpose in providing a definition which in effect says that if a document is called a lease or is treated as a lease then it is a lease for the purposes of the Act. It cannot be disputed that the document which was the original PL 1 was executed by the parties with the intention of creating a binding legal relationship; it was expressed to be a lease and was treated as such by both parties over a significant period of time. It is not without significance that unlike s 23B, which makes the validity of the acts referred to an express requirement, s 232A(2)(e)(i) does not raise any issue as to validity.

There is no question that PL 1 was a contract which contained a statement to the effect that it was a lease and it was certainly described as a lease. Whether Mr Bagot would have been entitled to enforce his rights as pastoral lessee in equity is a question which it is unnecessary to pursue.

In the result PL 1 must be regarded as a lease for the purposes of the Native Title Act; it follows therefore that the construction of the public work on area 93 which commenced in October 1996 whilst not a previous exclusive possession act, is a category A intermediate period act which is validated by the provisions of the Validation Act which correspond with s 22A of the Native Title Act.

xiii) Areas 99 and 100

The respondent's submission refers to government residences built on lots 7925 and 7926 (areas 99 and 100) which are said to be public works.

Both areas are within the town area of Alice Springs. Area 99 is on the south-east corner of the intersection of Stott Terrace and Hartley Street whilst area 100 is on the south-west corner of the same intersection. Both lots are currently vacant land and both are part of an area declared to be a Heritage Place under the Heritage Conservation Act (NT Gazette 30.6.1993). Lot 100 was formerly wholly within CLT 2686 which is a previous exclusive possession act.

The respondent relies upon the witness statement of Maurice Alfred Johns (exhibit NT 41) who has lived in Alice Springs since 1949 and who between 1949 and 1956 worked for the Commonwealth Department of Works and Housing and between 1956 and 1983 worked for the Animal Industry Division of the Commonwealth Department of the Interior. His evidence is that in 1949 there was a brick residence on the south-east corner of the intersection of Stott Terrace and Hartley Street (area 99) which was occupied successively, until the late 1960s, by two pathologists working for the Animal Industry Division of the Department of the Interior. During the 1970s the residence was occupied as a child care centre or kindergarten for about 5 years. It was demolished during the 1980s. A house on the south-west corner of the intersection (area 100) was for many years occupied by the government surveyor.

In his statement Mr Johns says that he believes that the residence on area 99 was built during the Second World War by the Commonwealth government to house professional employees. Counsel for the applicants objected to this aspect of the evidence, there being no stated basis for the belief. Mr Johns also asserts that there were a number of government constructed and owned houses in the same area as area 99, including the house on the south-west corner (area 100). This latter statement was not objected to.

I am prepared to accept both assertions as probative of the facts asserted. Mr Johns is a former employee of the Department of Works and Housing; the land in question has always been Crown land and in the relevant period it was under the administration of the Commonwealth; the two residences in question are known to have been occupied by professional employees of the Commonwealth. There is sufficient evidence to draw the inference that both residences were constructed by or on behalf of the Crown and that the area of each lot not occupied by the residences was adjacent land.

The whole of each of lots 99 and 100 is affected by a public work.

xiv) Area 106 (Mt Nancy)

There is evidence that there is presently a 20,000 gallon galvanised iron tank and a pipeline on part of area 106; and further that during World War II an army camp was constructed (at least in part) on the same area of land. The respondent submits that all of these structures, together with an area of adjacent land within a fence identified in document 467 in exhibit NT 15 are public works.

The army buildings have long since been removed and given the temporary purpose for which they were established they cannot be treated as having been fixtures. The tank which is no longer in use, does not appear to be fixed to the ground and given the nature of its construction (galvanised iron), could not reasonably be regarded as having been intended as a permanent structure. The pipeline running from the tank is above the ground and does not appear to be fixed in any way. There is no evidence that either the tank, the pipeline or a former pumphouse in the same area was constructed by or on behalf of the Crown or any other relevant authority.

During the period from 1949 to 1973 a significant portion of area 106 was covered by a series of miscellaneous leases notably MLs 429, 442 and 483 all of which are previous exclusive possession acts. There is no evidence as to whether the tank in question was on any of the land covered by these leases.

It has not been shown that area 106 is affected by a public work.

xv) Water Resources

The respondent submits that the area of land and waters necessary for or incidental to the operation of current production bores, current maintenance bores, gauging stations, rainfall stations and certain roads and tracks required for access to and maintenance of those works are public works. Each of areas 1, 3, 13, 14, 15, 17, 28, 30, 38, 87, 133, 134, 142, 166 and 167 is said to contain one or more bores.

A production bore is without doubt a "bore for obtaining water" and fits precisely within the definition of public work. Those bores which are referred to in the respondent's submission as "maintenance bores" are presumed to be the same as bores described in the evidence as "monitoring bores" which are used to monitor the level of water tables. The applicants argue that monitoring bores are not "bores for obtaining water" which is a superficially attractive argument which does not withstand scrutiny. A monitoring bore is a necessary adjunct of the process of obtaining water for human consumption and can properly be regarded as having been established for the purpose of obtaining water. In any event, the production bores and the monitoring bores are established in the same general vicinity and the land occupied by the monitoring bores is part of the area of land necessary for or incidental to the operation of the public work.

On area 1 there are 49 monitoring bores and 29 production bores all of which are situated within an area known as the "Roe Creek Borefield". The applicants have presented a lengthy and detailed argument aimed at establishing that the borefield on area 1 was invalidly established by reason of the currency of the reservation of the area for quarantine purposes at the time the borefield was established. It would indeed be a remarkable result to find that the major source of water for domestic consumption in Alice Springs is tainted with the kind of illegality suggested by the applicants but be that as it may, it is unnecessary to pursue the debate further in view of the conclusion expressed elsewhere that the reservation of area 1 extinguished native title. The same applies in respect of bores established on area 30 (Arid Zone Research Institute).

Areas 87 and 167 are both in part the subject of previous exclusive possession acts but it is not possible to make any finding as to whether the bores are established on land to which the previous exclusive possession acts relate.

All of the other areas on which bores are established are unalienated Crown land which have not been the subject of previous exclusive possession acts or other extinguishing acts. It may be inferred that there is no issue as to the validity of the establishment of these bores. There is however no evidence upon which to base a description of the area of land which is necessary for or incidental to their establishment and operation.

The operation of a water supply bore necessarily requires that the relevant authority have access to the bore and accordingly such roads or tracks which lead directly to the site of the bore and are used for gaining access to the bore are properly to be regarded as adjacent to the land on which the bore is established.

The question of whether gauging stations and rainfall stations are public works depends upon whether they are to be regarded as a "structure that is a fixture". Section 34 of the Water Act 1992 provides:

34. To enable effective planning for water resource development and environmental protection, it is the duty of the Controller to ensure as far as possible that a continuous program for the assessment of water resources of the Territory is carried out, including the investigation, collection, collation and analysis of data concerning the occurrence, volume, flow, characteristics, quality, flood potential and use of water resources, and for that purpose the Controller may -

a) systematically gauge stream flow, record climatic data and monitor groundwater levels;

(b) construct, operate, repair, maintain, alter and remove gauging, recording and monitoring stations and investigation and monitoring bores;

(c) sample and analyse water and waste; and

(d) co-operate with a State or the Commonwealth in the investigation of water resources which traverse the boundary between the Territory and the State.

and s 35 provides:

35. Where in the performance of the Controller's duty anything is attached to land, it shall be taken not to be -

(a) a fixture to the land for the purpose of giving the owner or occupier of the land a proprietary interest in it; or

(b) an improvement.

Whether or not a particular structure is to be regarded as a fixture will depend upon the context in which that question has to be determined but the general principles are well established and do not need to be recited here.

Section 35 of the Water Act does not, as the applicants seem to suggest, foreclose the issue with respect to structures which are constructed pursuant to s 34. All that s 35 does is to ensure that a structure which otherwise is properly to be regarded as a fixture is not to be so regarded in the circumstance described in paragraph (a). In the context of this proceeding, on the basis of the evidence adduced, no real conclusion can be reached as to the status of the gauging stations and rainfall stations as structures which are fixtures for the purposes of the definition of public work.

xvi) Alice Springs Town Council

Attached to the witness statement of Eugene Herbert Barry, the Director of Planning and Environmental Services of the Alice Springs Town Council (exhibit NT 21), there is a table setting out details of the assets of the Council situated on the claimed land. Mr Barry says that the Council is responsible for the control, management and maintenance of the listed assets, all of which were created prior to 1994. In addition, he says the Council is responsible for areas 13-22 (the bed and banks of the Todd and Charles Rivers) which are cleaned daily at an annual cost of approximately $80,000.

The assets identified in the table include things such as recreation equipment, paths, underground drainage systems with structures, a carpark, concrete foot and cycle paths, roads, public parks, unlined channels, flood retardation basins (some with channels), laneways, and a "letter box" pit.

The respondent submits that all of the assets cited in the witness statement, including adjacent areas, are public works. Further, it is said that where any of the listed works are located within a park, the entire area of the park is necessary for, or incidental to, the operation of the public works.

It is difficult from the brief descriptions contained in the attachment to Mr Barry's statement to gain a proper appreciation of the real nature of the assets described. There is of course no difficulty with roads, and it may well be inferred that "recreation equipment" would be both a structure and a fixture but apart from that it is difficult to identify which other assets are within the definition of public work. There may be circumstances in which a carpark may be treated as part of a road and it may also be that the construction of a flood retardation basin and unlined channels, would involve "major earthworks". No evidence, or argument, has been advanced in support of the proposition that where a public work is located within a park, the entire area of the park is necessary for, or incidental to, the operation of the public work. Nor does the evidence directly address the question of whether the assets were constructed or established by or on behalf of the Crown, a local government body or other statutory authority although in the circumstances it may be open to infer that they were so constructed or established.

It is not possible to make any meaningful finding as to the status of the assets referred to in Mr Barry's statement or as to the relevant adjacent areas of such of those assets as may be found to be public works.

xvii) Department of Transport and Works

The witness statement of Geoffrey Alexander Christensen, the Regional Manager, Transport Division of the NT Department of Transport and Works (exhibit NT 23) identifies a number of assets on the claimed land which are maintained by his department. The statement (para. 3) refers to a number of photographs (which are in evidence) which relate to:

a) The carpark at the Alice Springs Telegraph Station Historical Reserve ;

b) The access road to the Alice Springs Historical Reserve (from the entrance gate to the carpark areas);

c) The carpark at the Alice Springs Desert Park;

d) The access road to the Alice Springs Desert Park from Larapinta Drive to the carpark;

e) Undoolya Road (to the boundary of Undoolya Station); and

f) Stott Terrace.

In addition Mr Christensen's statement refers to photographs of other assets which the Department of Transport and Works was involved in creating or maintaining in the past but for which it no longer has primary responsibility. Such assets include roads, buildings, channels and recreation areas that are now the primary responsibility of other government departments or agencies.

The respondent submits that all of the works mentioned in Mr Christensen's evidence as works maintained or previously maintained by the Department of Transport and Works are public works.

To the extent that reference is made in paragraph 3 of the statement to roads, the applicants accept that the assets described are public works but they do not accept that the carpark is a public road. In particular reference is made to the carpark at the Alice Springs Telegraph Station Historical Reserve. This site was visited by the Court during the hearing. The carpark in question is not readily distinguishable from a road in that it consists of a series of branches from the access road which are sufficiently wide to permit the parking of motor vehicles on either side. Each branch is open ended so that vehicles may be driven in from one end and may exit from the other. There are also numerous parking bays immediately adjacent to the road itself. If the distinguishing characteristic of a road is that it be available to the public for the passage thereon of people and vehicles it would seem that the carpark at the Alice Springs Telegraph Station Historical Reserve is a road, and is accordingly a public work. The same considerations apply in respect of the carpark at the Alice Springs Desert Park.

xviii) Parks and Wildlife Commission

The Parks and Wildlife Commission of the Northern Territory (PWCNT) manages Crown land set aside by reservation for conservation and like purposes and land held by the Conservation Land Corporation under the Territory Parks and Wildlife Conservation Act, the Bushfires Act and the Parks and Wildlife Commission Act. It also manages protected areas under s 22 of the Territory Parks and Wildlife Conservation Act. In addition it has a role in the joint management of other areas of land pursuant to s 73 and s 74. According to the evidence (notably the witness statement of Kenneth Alan Johnson which is exhibit NT 27) the PWCNT manages the following areas affected by the application in this proceeding:

a) The Alice Springs Desert Park (Area 28);

b) The Alice Springs Telegraph Station Historical Reserve and extension area (Areas 5, 6, 10, 11, 25 and 26);

c) The West Macdonnell National Park (Area 24);

d) The Kuyunba Conservation Reserve (Areas 2 and 3);

e) The Ilparpa Wildlife Protected Area (Areas 133, 134, 151, 152 and 154);

f) The Joint Geological and Geophysical Wildlife Protected Area (Areas 9 and 12);

g) PWCNT Regional Office at the AZRI (Area 30).

Within each area the PWCNT manages a range of assets. The evidence concerning these assets, which is extensive, is detailed in Mr Johnson's initial statement (exhibit NT 27) and a supplementary statement (exhibit NT 27.1). The respondent submits that all those physical things the responsibility of the PWCNT mentioned or depicted in Mr Johnson's statements excluding the Herbarium, fences and roads described in exhibit 27.1, are public works.

The extent of the claims made and the responses of the applicants are such that little purpose will be served by examining each in detail, particularly as in a number of cases both parties rely upon photographs and maps as descriptive of their submissions. In the circumstances the Court's findings are stated without detailed reasoning. They are:

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

b) In respect of works established on the Alice Springs Telegraph Station Historical Reserve, the extension area and the West Macdonnell National Park, the Court accepts the analysis set out in paragraphs 4.1, 4.2 and 4.3 of the applicants' February 1999 submission which describes the works which are conceded to be public works by reference to Attachments 2 and 3A to their submission.

c) The only public works on the Kuyunba Conservation Reserve are bores (both production and monitoring) together with relevant adjacent land.

d) There are no public works within the Ilparpa Wildlife Protected Area .

e) There is no evidence of any public works within the Joint Geological and Geophysical Reserve.

f) The status of the land which comprises the Arid Zone Research Institute is dealt with separately elsewhere in these reasons.

xix) Department of Primary Industries and Fisheries

The Department of Primary Industries and Fisheries has responsibility for areas 29 and 30 (Arid Zone Research Institute) and area 1 (Quarantine Reserve). There are numerous buildings and structures which are fixtures on each area as well as some bores for obtaining water. In view of the conclusions expressed elsewhere in these reasons it is unnecessary to deal with the precise details of the public works established on the areas in question.

xx) Power and Water Authority

The witness statement of Jean Luc Revel (exhibit NT 33) identifies the assets of PAWA in respect of 96 of the 166 areas the subject of the proceeding. The assets are generally classified under the headings of electricity assets, water assets and sewer assets.

The respondent says that all of the assets identified (other than HV Electricity Substation 8454 on area 93, which was constructed in 1997) are public works. Relevant adjacent land is claimed to be:

i) Sealed and unsealed roads required for access to and maintenance of the public works referred to;

ii) The whole of the area of land and waters within the fencing on area 34. (PAWA has freehold title to area 34);

iii) The whole of the area of land and waters within the fencing and natural barriers around the Roe Creek Borefield (area 1);

iv) The whole of the area of land and waters within the fencing surrounding the Carmichael Water Tank (area 56);

v) The area of land and waters that is or was necessary for, or incidental to, the operation of the Sadadeen Water Tank and access road (area 145);

vi) The whole of the area of land and waters within the fencing surrounding the sewerage ponds on area 133.

All of the works as described appear to be public works within the definition in s 253 of the Native Title Act. Many of them are in fact established on areas which have been subject to previous exclusive possession acts and other past acts which have an extinguishing effect. So far as the claimed areas of adjacent land are concerned, it is obvious that access by road or track is required for both the establishment and the operation of the works. The operation of a public work necessarily requires that the work be maintained and the operation of works such as water supply facilities and sewerage ponds requires that the works be kept secure from unauthorised outside interference and in the absence of any evidence requiring a contrary conclusion it is open to infer that in the case of works of that type which are fenced, the whole of the land and waters within the fencing, being land and waters immediately adjacent to the works, should be treated as adjacent land for the purposes of s 251D.

xxi) Police, Pound and Commonage Reserves

Reference is made later in these reasons to a series of reservations made for police, pound and commonage purposes. Exhibit NT 18, a document entitled "Background History to the Alice Springs Police Pound and Commonage Reserves - May 1997", concludes with these observations:

The area of land under discussion in this brief history had been used for public purposes since the first proclamation for use for the police department in 1921. While the areas of land initially reserved were regazetted over time, or areas were swapped around to accommodate changing circumstances, there was little fundamental change in the use and tenure of the land.

Apart from the land being reserved for specific purposes, the main focus of the archival documents on which this history is based rests with the insight into the European use of the land. This did not change markedly in the type of use over the years, but the documents indicate that there was extensive use involving the storage of cattle and associated activities such as the supply of water, which led to storage facilities such as pens, fences and ramps. There was evidence of one `camp' consisting of buildings, otherwise the presence of dwellings was minimal. The area also contained the town garbage and sewerage works, the position of which changed over time.

The respondent submits that native title is extinguished by -

The works described in Exhibit NT 18 and associated source documents (police, pound and commonage reserves, etc) including the following -

(a) The whole of the area of land and waters within the fencing and natural barriers in the commonage, police and pound reserves identified in Exhibit NT 18 on Claim Nos 28, 37, 38, 39, 44, 65, 133, 134, 151, 152, 155, 161, 162, 163, 164, 165, 166 and 168.

(b) The whole of the area of land and waters reserved within the sanitary (Claim No 134) and garbage (Claim No 28) reserves identified in Exhibit NT 18.

(The applicants have pointed out that area 166 was not affected by any of the reserves).

The applicants' document "Supplementary Submission of Applicants : Public Works" dated 5 February 1999 contains (in Table 2) an exhaustive analysis of the works said to constitute public works within the various areas affected by the former reserves. The applicants' general approach is summarised in paragraph 14.6 of the submission in these terms:

The First Respondent asserts, without reference to the evidence, that the area the use of which was necessary for or incidental to the operation of the works described in Ex NT 18 and associated source documents is the whole of the land within the fencing and natural barriers in the commonage police and pound reserves. What is apparent from the documents is that there was never any concerted or extensive development of infrastructure ("works") on the lands concerned for the purposes for which it was reserved. Accordingly, to the extent that there were any public works on the reserves it cannot be said that all of the lands surrounding them and enclosed by the fencing and natural barriers referred to in the documents was necessary for or incidental to the operation of those works. As previously noted, the area of land on which a work is situated is not relevant for the purposes of s 251D. Furthermore, as appears from Table 2 it is not possible to fix with any certainty the location of many of the works identified in the documents. They may not have been on claimed land at all.

The applicants' submission on this issue is persuasive. It is not possible from the evidence to make any meaningful finding in relation to the establishment of any public works within the areas formerly covered by the police, pound and commonage reserves or as to any adjacent land. Similarly, there is no evidence to support the respondent's contention that any works that may have been established on either the sanitary reserve or the garbage reserve were public works for the purposes of the Native Title Act.

xxii) Alice Springs Telegraph Telegraph Station Reserve, other Reserves and the Seismic Array Facility

The respondent submits that the works described and/or depicted in Exhibit NT 15, documents 3-53 (the Alice Springs Telegraph Station Reserve), and documents 54-123 (other reserves and the seismic array facility) are public works.

It is unhelpful to simply refer to works "described and/or depicted in" a total of 124 separate documents in the expectation that the Court will be able to discern not only the nature of any buildings structures and other works which may fit the definition of a public work and the authority by which they were established, but also to assess what land and waters are to be treated as adjacent land. In the circumstances it is not possible to make any meaningful finding in relation to this submission.

It should be observed that following an agreement between the applicants and the Commonwealth, the applicants have recognised the interests of the Commonwealth in relation to areas 9 and 12 (the reserve for long term geological and geophysical research) and the Commonwealth has agreed that it would not rely upon the seismic monitoring installations in those areas as extinguishing native title (affidavit of Christopher Mark Athanastiou, Exhibit A 69).

xxiii) Reserve for Military Defence

Reference is made later in these reasons to a reservation for military defence (Reserve 888) which was proclaimed in 1938 and revoked in 1984. The respondent submits that a large number and variety of works depicted in certain aerial photographs which are in evidence are public works and that the whole of the area of the former reserve is adjacent land. In response the applicants say -

The works which the First Respondent maintains are public works have not been particularised and with the exception of roads, the location of such works if any, cannot be identified on the photographs. Furthermore, there is no evidence that any works depicted on the aerial photographs were constructed by or on behalf of the Crown, a local government body or a statutory authority.

To the extent that there are public works on any land formerly within the reserve for military defence there is no evidence which could lead to the conclusion that the whole of the area was necessary for or incidental to the operation of such works.

A view which I entirely endorse.

xxiv) Closed Roads

The respondent says that there are a number of roads and areas of land which were previously roads within the claimed land. As to the latter, eleven such areas are identified and copies of the relevant Gazette notices closing the roads in question are in evidence.

It is the respondent's case that by virtue of s 7 of the Control of Roads Act (formerly the Control of Roads Ordinance) all roads in the Northern Territory are the property of and are vested in the Territory. The Control of Roads Act defines the term "road" to mean:

(a) all streets, roads, courts, alleys, thoroughfares and culs-de-sac which were, immediately before the date when this Act comes into operation, public streets, roads, courts, alleys, thoroughfares, or culs-de-sac within the meaning of any law then in force in the Northern Territory; and

...

(c) land which, whether before or after the date when this Act comes into operation and whether within the limits of a mineral or gold field proclaimed under the Mining Act, or otherwise -

(i) is proclaimed, dedicated, resumed or otherwise established as a public street, road or thoroughfare;

(ii) is opened as a road or is declared to be a road by the Minister pursuant to this Act;

(iii) is reserved or left as a road in a sub-division of Crown land;

(iv) is conveyed or transferred to the Territory in fee simple and is accepted by the Territory as a road; or

(v) not being Crown land leased for purposes which include the construction of a road at the expense of the lessee, is used as a thoroughfare passing through or over Crown land whether alienated or otherwise.

The Native Title Act definition of public work includes a road 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 capacity. It is patent that not all "roads" under the Control of Roads Act will be public works under the Native Title Act. For example, land which has been left as a road in a sub-division of Crown land is a road under the Control of Roads Act (s 7(c)(iii)) but unless and until a road is constructed on that land by or on behalf of the Crown or other relevant authority, the land will not be a public work. It necessarily follows that by simply providing evidence of the closure of a road under the Control of Roads Act, the respondent cannot hope to assert that the land in question has been affected by a public work. Evidence of the construction of a road by or on behalf of the appropriate authority is needed. In the instances referred to by the respondent there is no evidence before the Court from which it can find that any of the closed roads were or are public works.

There is the further question as to whether the vesting of closed roads in question in the Territory pursuant to s 7 of the Control of Roads Act is a previous exclusive possession act. Section 23B(3) of the Native Title Act provides that the vesting of land by or under State or Territory legislation is taken to be the vesting of a freehold estate over the land for the purposes of s 23B(2)(c)(ii) if a right of exclusive possession of the land is expressly or impliedly conferred by or under the legislation. Given the very broad definition of "road" in the Control of Roads Act, and absent any express provision conferring a right of exclusive possession on the Territory in respect of land vested pursuant to s 7, there is no express or implied basis to conclude that such a right is conferred by the legislation. Nor does s 23(9C) assist the respondent's argument. The vesting of land in the Territory pursuant to s 7 of the Control of Roads Act is not in itself inconsistent with native title.

There is therefore no basis to assert that apart from the Native Title Act the vesting extinguishes native title.

GRAZING , OCCUPATION and MISCELLANEOUS LICENCES

99. The respondent identifies four categories of licences which are said to extinguish native title rights and interests. Three of the categories namely grazing, occupation and miscellaneous licences are derived from the provisions of the various Crown Lands Ordinances and can conveniently be dealt with together although each has its own distinguishing features. The fourth category, a pipeline licence granted under the Energy Pipelines Act 1981, will be dealt with separately.

100. In the period from 1941 to 1968 a total of 24 grazing licences were granted over parts of the claimed land pursuant to s 107 of the Crown Lands Ordinance 1931. All have since expired. Section 107(1) provided:

107 (1). The Administrator or any person thereto authorised by the Administrator may, under and subject to the regulations, grant licences to persons to graze stock or any particular kind of stock, on any Crown lands [which are not held under a lease or licence granted under this or any other Ordinance] or on any reserved or dedicated lands, for such period not exceeding one year, as is prescribed.

(The words in parenthesis were added by Ordinance No 4 of 1955)

At relevant times the Crown Lands Regulations made pursuant to s 131 of the Ordinance contained the following provisions:

70. All grazing licences shall commence on the first day of the month following the date on which the application was granted, and shall remain in force until the 30^th day of June in the year following, unless sooner surrendered, forfeited or cancelled.

71.(1) No improvements whatever shall be made on the area included in any grazing licence without the written consent of the [Administrator], and no claim for compensation may be made for improvements not approved by the [Administrator].

(2) Any improvements made on any grazing licence and approved by the [Administrator] shall be taken into consideration when the area included in the licence is being allotted as a pastoral lease.

72. (1) Where any licensee fails to comply with any term or condition of his licence, the [Administrator] may inform the licensee of such default, or by notice in the Gazette declare the licence is forfeited and the licence shall thereupon be and become forfeited.

(2) The [Administrator] may, at any time on giving the licensee three months' notice, cancel a grazing licence.

73. (1) Grazing licences may, at the discretion of the [Administrator] be renewed from time to time for a period not exceeding twelve months.

(2) Any holder of a grazing licence may make application for renewal on or before the thirty-first day of July immediately following the date of expiry of the licence.

In 1956 the Ordinance was amended by the addition of a new s 107A which provided that a licensee could apply to the Administrator for permission to make or erect specified improvements and that such permission could be granted or refused in the absolute discretion of the Administrator. Provision was also made for the payment of compensation for improvements in some circumstances.

101. Ninety-five occupation licences were granted under s 108 of the Crown Lands Ordinance 1931 in respect of parts of the claim area and a further 7 were granted under s 90 of the Crown Lands Act 1992. The last licence expired on 31 December 1997. As there is a slight variation in the sections under which these licences were granted their respective terms are set out below. Section 108 of the Crown Lands Act 1931 provided:

108.(1) The Administrator or any person thereto authorized 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.

[Prior to 1938 the issuing authority was the Board rather than the Administrator. In 1975 the section was amended to permit the granting of licences "for such purposes as the Administrator thinks fit"].

Section 90 of the Crown Lands Act 1992 now provides:

90.(1) The Minister may, under and subject to the Regulations, grant a licence to a person to occupy particular Crown lands for such purposes as the Minister thinks fit.

(2) Licences granted in pursuance of subsection (1) may be for such period not exceeding 5 years as is prescribed.

102. The Crown Lands Regulations, which remained substantially unchanged from 1931 to 1992, provided:

75. In addition to the purposes specified in section 108 of the Ordinance an occupation licence may be granted for recreation or garden purposes. [Subject to the Ordinance and these Regulations, an occupation licence may be granted on such conditions as the Administrator necessary or desirable and are specified in the licence]

(The words in parenthesis were added by Ordinance No 3 of 1958).

78. The land included in an occupation licence shall be used only for the purpose for which it is granted.

82.(1) The period of an occupation licence shall in the first instance be 12 months.

(2) The licence may be renewed annually, but so that the total period of the licence shall not exceed five years.

83.(1) Where any licensee fails to comply with any term or condition of his licence, the [Administrator] may inform the licensee of such default and the licence shall thereupon be and become forfeited.

(2) The [Administrator] may cancel an occupation licence on giving the licensee three months' notice.

86.(1) The [Administrator] may grant permission to the holder of an occupation licence issued under the Ordinance to erect any building or machinery on the area included in a licence which, in the opinion of the [Administrator], is necessary for carrying out the purposes of the licence, [but the Crown shall not be liable for any compensation whatever in respect of the building or machinery].

(The words in parenthesis were deleted by Ordinance No 7 of 1962).

(2) At the expiry or sooner determination of the licence, and provided all moneys due to the Crown in respect thereof have been paid in full, the licensee may remove any building or machinery erected by him on the land formerly included in the licence: Provided that any building or machinery remaining on the land formerly included in the licence after three months from the determination of the licence shall become the property of the Crown.

(Sub-regulation (2) was omitted by Ordinance No 7 of 1962 and the following sub-regulation substituted).

(2) At any time before, or within three months after, the expiration of the licence or its sooner determination (whether by forfeiture, cancellation or otherwise), the Administrator may, in his absolute discretion, grant permission to the licensee to take down, remove and carry away, either before the expiration or sooner determination of the licence or before such date after the expiration or determination as the Administrator considers reasonable, any building or machinery which the licensee has erected or set upon the land included or formerly included in the licence.

Sub-regulation (3) provided that if the Administrator did not give permission to the lessee to take down, remove and carry away the buildings or machinery erected under sub-regulation (1) the licensee was entitled to be paid compensation for the value of the buildings or machinery. Under sub-regulation (4), if the licensee erected buildings or machinery without permission granted in accordance with sub-regulation (1) and the Administrator did not give permission to the lessee to take down, remove and carry away the buildings or machinery, the Administrator might in his absolute discretion pay the licensee the value of the improvements. Sub-regulation (5) provided:

The Administrator shall not pay to the licensee the value of any building or machinery which, in the opinion of the Administrator, is not capable of being taken down, removed and carried away.

In 1979 regulation 86 was amended by replacing the expression building or machinery with the words building, machinery, equipment or any other improvement.

The regulations under the Crown Lands Act 1992 provide that:

26. Subject to the Act and these Regulations, an occupation licence may be granted on such conditions as the Minister considers necessary or desirable and are specified in the licence.

The land included in an occupation licence may only be used for the purpose for which it is granted (r 29) and the Minister in his or her discretion is to fix the area to be included in a licence (r 31). The initial period of a licence is twelve months but it may be extended from time to time, but not so that the total period of the licence exceeds five years (r 32). Regulation 33 provides:

33.(1) It is a condition of an occupation licence that the holder of the licence shall not erect or set up on the land included in the licence any building, machinery, equipment or other improvement except where the Minister, being of the opinion that such an improvement is necessary for the purposes of the licence, has granted prior permission in writing to him or her to do so.

(2) The permission of the Minister referred to in sub-regulation (1) may be subject to such terms as the Minister thinks fit in relation to the taking down, removal and carrying away of the building, machinery, equipment or other improvement and the payment or otherwise of an amount to the holder of the licence as compensation for such an improvement not capable of being taken down, removed or carried away or which the Minister does not permit to be taken down, removed or carried away.

If a licensee fails to comply with any term or condition of the licence, the Minister may inform the holder of the default and the licence is thereupon forfeited (r 35).

103. In the period from 1931 to 1974 a total of 171 miscellaneous licences were issued under either the Crown Lands Ordinance 1927 (Central Australia) or the Crown Lands Ordinance 1931 in respect of land within the general vicinity of Alice Springs but not all affected the claimed land.

Section 109 of the Crown Lands Ordinance 1931 (which was not materially different from s 98 of the Crown Lands Ordinance 1927 (Central Australia)) provided that the Administrator or a person authorised by the regulations could grant licences to go upon Crown lands or any lands subject to any lease, whether granted before or after the commencement of the Ordinance, or dedicated or reserved lands and to take from the land certain substances, which at various times, included live or dead timber or wood, stone, shell, sand, gravel, clay, earth, salt, bark and any other substance or article the property of the Crown.

Licences were not to be granted for any longer period than 12 months (s 109(3)). Subsection (4) listed certain exceptions to the reserved or leased lands over which licences could be granted. Section 109A, inserted in the Ordinance in 1964, authorised the Administrator to grant licences for a period not exceeding 12 months which authorised the use and occupation of certain lands reserved under s 103(1)(a). These licences were determinable on a month's notice and did not confer on the licensee an exclusive right of possession. Most miscellaneous licences over the claimed land were for the removal of sand, grave or stone.

The regulations relating to miscellaneous licences remained substantially unchanged throughout the period under consideration. Regulation 90 provided that the holder of a miscellaneous licence could not locate himself on the land to which the licence related except for such periods as were necessary "in the opinion of the Administrator to carry out the purpose of the licence". Licences could be granted for terms of 3, 6 or 12 months (r 91) and in the event that the licensee failed to comply with any term or condition of the licence the Administrator could inform the licensee of the default and the licence was thereupon forfeited (r 99). Neither the Act nor the regulations made any provision for assignment or renewal and licensees were not authorised to make any improvements on the land.

Most licenses were expressed "not [to] give the licensee an exclusive right to the area embraced by the licence".

104. The nature of the interest conferred by a grazing licence was considered by the High Court in The Queen v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69; 158 CLR 327. The particular question before the Court had to do with whether the holder of a grazing licence had an "estate or interest" in the subject land. The context in which the question arose was the definition of "unalienated Crown land" in s 3(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 which defined that term as "Crown land in which no person (other than the Crown) has an estate or interest". The grazing licensee claimed to have an estate or interest in the land.

105. In a judgment, which both Gibbs CJ and Brennan J expressly adopted, Mason J said (at p 344):

Much argument was directed to the significance of exclusive possession in the characterization of grazing licences. Ultimately, however, I do not think that it is an issue which takes the applicants very far, even if it be the case that exclusive possession is very often a characteristic of a proprietary right. The applicants contend that the grazing licensee is given exclusive possession of the interest granted in the sense that a grazing licence cannot be granted to another which would interfere with the exercise of the original licence. Even if the applicants are correct in submitting that more than one grazing licence cannot be granted over the same land at the same time because Crown land over which there is a grazing licence is "held under a ... licence" within s 107 of the Crown Lands Act, I do not think that it follows that a grazing licence confers on the licensee a right to exclusive possession. The terms and conditions of the licence do not suggest that it confers such a right.

My conclusion is that the intention evinced by the Crown Lands Act and the Crown Lands Regulations is that all that should pass to a grazing licensee is a personal right and no rights of proprietary nature. I say this notwithstanding the similarity between the rights conferred by a grazing licence and the classical definition of a profit à prendre:

" a profit à prendre confers a right to take from the servient tenement some part of the soil that tenement or minerals under it or some of its natural produce, or the animals ferae naturae existing upon it ..." (Alfred F. Beckett Ltd v Lyons (1967) 1 Ch 449 at p 482), per Winn L.J.)

The final paragraph of this passage has since been cited with approval in Wik by Toohey J (at p 112), Gummow J (at pp 196-7) and Kirby J (at p 245).

106. 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 land. Indeed, Mason J expressed the opinion that a grazing license held under s 107 of the Crown Lands Act did not confer a right to exclusive possession. The reasoning in Meneling and Wik leads inevitably to the conclusion that grazing licenses under s 107 of the Crown Lands Act 1931 do not grant a right to exclusive possession. The right to graze stock on land is not necessarily inconsistent with the continued existence in relation to that land of native title rights and interests. As in Wik, if there be any inconsistency between native title rights and interests and the rights conferred under a grazing licence, the native title rights and interests must yield to the extent of the inconsistency, to the rights of the grantee of the statutory right. As there are no grazing licences currently in force in relation to the claimed land, the question of the co-existence of native title rights does not arise.

107. The respondent submits that occupation licences confer a right of exclusive possession if the rights of the holder of the licence are inconsistent with any other contemporaneous occupation of the land. In its final written submission the respondent lists 65 occupation licences which are said to be of this character. The purposes for which the listed licences were granted include purposes such as horse training stable and camp, gardening, racing stable, storage and maintenance of equipment and messing, erecting machinery for screening sand, erection of screening plant, erection of machinery for supplying ready mixed concrete, sanitary contracting, access road, polo club playing field, sawmilling, bitumen depot, bore and pipeline, vehicle parking area, experimental and commercial growing of mushrooms, riding school, market gardening, firewood storage, stockcar racing, radio aerial, water pipeline, go-cart and motor cycle track, recreation, crushing metal and lime kiln, archery, stock piling of raw materials, gas storage tanks, operating "The Camp Oven Kitchen" and storage of contract materials.

108. A number of arguments are advanced in support of the respondent's submission that occupation licences are capable of conferring a right to exclusive possession, namely:

(a) An occupation licence is a creature of statute which under the Ordinance/Act confers extensive common law and statutory rights on the holder in respect of the use and occupation of land in a way that is inconsistent with any other contemporaneous occupation of the land, whether or not the licence amounts to an interest in land.

(b) Section 109A of the Crown Lands Ordinance expressly provided that licences granted in respect of reserved land did not confer on the licensee an exclusive right of possession of the land. As there is no such express exclusion in respect of a licence on unreserved land, a licence granted to occupy such land confers a right of exclusive possession if the purpose of the licence could only be achieved if exclusive possession was granted.

(c) The reservation of certain Crown rights of access do not necessarily indicate that exclusive possession was not granted.

109. These questions must be determined by reference to the relevant statutory provisions and the terms and conditions of the licences. A licensee's interest under s 108 of the Crown Lands Act 1931 can not relevantly be distinguished from that of the holder of a grazing licence under s 107 which the High Court held in Meneling conferred a non-proprietary right of a personal nature. The form of an occupation licence permitted the licensee to occupy Crown land for a particular, limited purpose subject to the provisions of the Ordinance and the Regulations. Under the regulations:

(a) The land could only be used for the purpose for which it was granted;

(b) A licence was in the first instance for a period of 12 months but might be renewed annually for a maximum period of only 5 years;

(c) The licence could be cancelled on 3months' notice;

(d) If the licensee failed to comply with a term or condition of the licence the Administrator could inform the licensee of the default whereupon the licence was forfeited;

(e) The licensee had to obtain permission to erect any buildings or machinery (and after 1979 any equipment or other improvements) and permission would only be given if in the opinion of the Administrator it was necessary for carrying out the purpose of the licence;

(f) Prior to 1962, no compensation was payable for buildings or machinery left on the land at the expiration or sooner determination of the licence: If not removed, after 3 months they became the property of the Crown;

(g) After 1962, compensation was payable only if the buildings or machinery were capable of being taken down, removed and carried away where the Administrator, in his absolute discretion refused permission for the buildings or machinery to be removed.

The Ordinance does not suggest that the licences were assignable, nor that there was an automatic entitlement to renewal.

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 and it follows 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.

110. By parity of reasoning it must be concluded that miscellaneous licences under the Crown Lands Ordinance 1931 were non-proprietary in nature and even those which did not contain an express provision that the licence did not give the licensee a right to exclusive possession, did not confer such a right.

PIPELINE LICENCE

111. The Energy Pipelines Act 1981 is an Act "to make provision for the construction, operation and maintenance of pipelines for the conveyance of energy-producing hydro-carbons, and for related purposes". Section 15 authorises the relevant Minister to grant a licence in respect of a proposed pipeline which may be granted on such terms and conditions as the Minister thinks fit (s 17). One such licence granted to Bulkships Container Pty Ltd on 28 February 1983 relates to a pipeline from Palm Valley to Alice Springs and affects portion of the claimed land.

112. The respondent makes particular reference to clauses 7 and 8 of the licence which provide that the licensee shall at all times during the currency of the licence permit the Northern Territory, its servants and agents to enter and move freely on the land on which the pipeline is situated or on which the pipeline is or is to be constructed and on all land adjacent thereto for the purpose of performing their duties or functions under the Act or any law in force in the Northern Territory or pursuant to the directions of the Minister (clause 7) and that the licensee shall permit the Northern Territory, its servants and agents to inspect any aspect of the works and facilities on the land on which the pipeline is situated or on which the pipeline is to be or is being constructed and on all land adjacent thereto (clause 8).

It is said that these provisions indicate that the Crown intended (subject to certain limited exceptions on behalf of the Crown) to grant the licensee an exclusive right of occupation which is wholly inconsistent with native title and extinguishes it with respect to the area of land covered by the licence. Alternatively, it is said that if the licence is not wholly inconsistent with native title rights and interests then the interests granted, at the very least, are inconsistent with any exclusive native title right to occupy the relevant areas, and extinguished any subsisting native title to that extent.

113. An analysis of the Energy Pipelines Act does not reveal a clear and plain intention to extinguish native title in respect of land affected by a pipeline constructed pursuant to a licence under s 15. In particular, no provision in the Act, nor any term of the licence, expressly confers on a licensee a right to exclusive possession of land. The scheme of the Act does not contemplate the acquisition of the property of the owners, occupiers or others with title to or rights in land nor is there anything in the legislation or the licence that suggests that the rights of persons entitled to the possession, occupation or use of, or of access to, land traversed by the pipeline, are not able to continue to exercise those rights.

114. The energy pipeline licence granted to Bulkships Container Pty Ltd does not operate so as to affect any pre-existing native title rights and interests in the land to which it applies.

MINING TENURES

115. Section 242 of the Native Title Act, which defines the expression "lease" provides in subsection (2) that -

In the case only of references to a mining lease, the expression lease also includes a licence issued or an authority given, by or under a law of the Commonwealth, a State or a Territory.

Section 245 provides:

245.(1) A mining lease is a lease (other than an agricultural lease, a pastoral lease or a residential lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for mining.

(2) Subject to subsection (4), subsection (3) applies to a mining lease if the lease was in force at the beginning of 1 January 1994 (the test time) and either or both of the following paragraphs apply:

(a) the following conditions are satisfied:

(i) a city, town or private residences had been wholly or partly constructed at the test time on a part of the land or waters covered by the lease;

(ii) the construction was permitted by the lease;

(iii) in the case of any private residences they had been, or were being, constructed as fixtures and it was reasonably likely at the test time that, if mining under the lease were to cease at any later time, they would continue to be used as private residences;

(b) the following conditions are satisfied:

(i) other buildings or works had been wholly or partly constructed as fixtures at the test time, on a part of the land or waters covered by the lease for carrying on an activity in connection with any city, town or private residences covered by paragraph (a);

(ii) the construction was permitted by the lease;

(iii) it was reasonably likely at the test time that, if mining under the lease were to cease at any later time, the buildings or works would continue to be used to carry on the same activity, or a similar activity, in connection with any city, town or private residences mentioned in paragraph (a).

(3) If this subsection applies to a mining lease, the lease is taken instead to consist of separate leases in respect of:

(a) the part of the land or waters in respect of which paragraph (2)(a) or (b), or both paragraphs, are satisfied; and

(b) the remainder of the land or waters.

(4) The Commonwealth Minister may, in writing, determine that a specified city, town, private residence, building or works is not to be taken into account for the purposes of subsection (3).

The definition of the term mine as it appears in s 253 is set out earlier in these reasons.

An act consisting of the grant of a mining lease is a category C past act (s 231).

Section 15 of the Native Title Act (and the corresponding provision of the Validation Act) provides that the non-extinguishment principle applies to a category C past act.

Subparagraph 23B(2)(c)(vii) of the Native Title Act provides that what is taken by subsection 245(3) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, (assuming that the reference in subsection 245(2) to "1 January 1994" were instead a reference to "24 December 1996") is a previous exclusive possession act.

There is no evidence that any part of the claimed land has been the subject of a previous exclusive possession act of the type referred to in s 23B(2)(c)(vii).

SAND AND GRAVEL PERMITS

116. Ten sand and gravel permits were issued under regulation 10 of the Control of Waters Regulations over parts of the claimed land from 1963 to 1978 authorising the permitees to take sand gravel from a particular area. Each permit was expressed not to give the permitee an exclusive right to the area embraced by the permit. The acts authorised by the permits did not grant a right to exclusive possession of the land to which they related and did not otherwise indicate a clear and plain intention to extinguish native title.

RESERVATION OF LAND FOR A PUBLIC PURPOSE

117. Various parts of the claimed land are or have been set aside for a public purpose, or are the subject of reservations under successive Crown Lands Ordinances/Acts.

In Mabo No 2 Brennan J said (at p 64):

A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title. A fortiori, a law which reserves or authorises the reservation of land from sale for the purpose of permitting indigenous inhabitants and their descendants to enjoy the native title works no extinguishment.

and at p 68:

Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose --at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title; construction of the building however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished.

118. In its final submission the respondent asserts that

Once a reserve for public purposes is declared, the public thereafter do not require a permit, or any other executive action of the Crown to enter. At the very least, from the time of declaration, Aboriginal people have lost the right to exclude the public from entering to utilise the reserve.

and further that -

... at the time of proclamation of a reserve for a particular purpose, the Crown exercises its right to occupy, control, manage, use or enjoy the area of land reserved for the specified purpose. In so doing, it extinguishes any such rights which may have been held by native title holders. The only native title rights and interests which may survive the act of proclaiming a reservation would be usufructuary rights which may be exercised in fact in a manner which does not interfere with the use of the land for the reserved purpose, subject to any relevant laws.

It is said that in a number of instances where parts of the claimed land have been reserved for a public purpose the evidence discloses that native title has been either wholly or partially extinguished by public works established on the land or by the use of the land in accordance with the purpose for which the land was reserved.

119. The respondent's proposition that at the time of proclamation of a reserve the only native title rights which survive the act of proclamation would be usufructuary rights which may be exercised in fact in a manner which does not interfere with the use of the land for the reserved purpose is not consistent with the test expressed by Brennan J in Mabo No 2 (at pp 69-70):

Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished to parcels of the waste lands of the Crown that have been validly appropriated for use (whether by dedication, setting aside, reservation or other valid means) and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of native title. Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (e.g., land set aside as a national park).

The concept of the "continuing concurrent enjoyment of native title over the land" is not essentially different from the conclusion expressed in Wik (at p 133) that absent a clear and plain intention to extinguish native title, "if inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees". The various areas of the claimed land which have been the subject of reserves or have been set aside for public purposes are discussed below.

i) Former Police, Pound and Commonage Reserves

In the period from December 1921 until June 1984 various parts of the claimed land were subjected to a series of proclamations (and revocations) of reserves for police, pound and commonage purposes. To a large extent the various reserves related to the same land. The respondent's document entitled "Background History to the Alice Springs Police, Pound and Commonage Reserves" (exhibit NT 18) does not provide evidence of the usage of the former reserves that was inconsistent with native title.

ii) Reserve for Aboriginal Purposes

Areas 5 and 6 are, or have been, subject to reserves for Aboriginal purposes. It appears that the reservation in respect of area 6 remains unrevoked. In addition, areas 17, 47, 48, 80, 88, 92, 94-96, 98, 145, 146, 148, 149 and 157-160 were in whole or in part, the subject of reservations for Aboriginal camping between 4 October 1933 and 18 October 1944. Although in the respondent's final submission (at para 154) it is asserted that native title has been partially extinguished by public works or use in accordance with the purposes of, inter alia, reserves for Aboriginals, no argument is addressed to the specific issue of Aboriginal reserves. It is difficult to see how the reservation of land for Aboriginal purposes or for a camping ground for Aboriginals could be interpreted as indicating a clear and plain intention to extinguish native title.

iii) Sanitary and Garbage Reserves

In December 1943 an area of about 83 acres was reserved pursuant to s 103 of the Crown Lands Ordinance 1931-1943 for the purpose of a sanitary reserve and on the same day an area of 18 acres was reserved for the purpose of a garbage reserve. Small portions of both areas are part of the claimed land. The two areas had formerly been part of the police and pound reserves referred to earlier. Both were revoked on 6 February 1958. There is no evidence as to the use of the garbage reserve nor does the evidence establish what part of the sanitary reserve was in fact used for the purpose for which the land was reserved. There is however some evidence that by December 1953 the sanitary reserve had been abandoned for some time and a new site established about half a mile to the west. It was said at the time (i.e. in 1953), by the Acting Administrator, that "[t]he old Sanitary Reserve is now well covered with pasture". From the available evidence it is not possible to conclude that the use of any part of either reserve was inconsistent with native title. Indeed, there is some evidence that suggests that the buildings used in relation to the sanitary reserve were in fact located on the adjacent commonage reserve. The reservation of the two areas of land does not disclose a clear and plain intention to extinguish native title.

iv) Areas 29 and 30 (Arid Zone Research Institute)

Area 30 (lot 800) was surveyed in 1952 and set aside for the Animal Industries and Agriculture Branch of the then Department of Primary Production as an Arid Zone Research Station. Subsequently, in 1954, NT portion 427 (area 29) which is immediately adjacent to the southern and eastern boundaries of lot 800, was surveyed and set aside for an extension to the Arid Zone Research Station. Neither area has ever been the subject of a reservation.

The evidence of David Alan Newton-Tabrett (exhibit NT 11) provides a detailed description of the past and current use of the two areas where what has since November 1967 been known as the Arid Zone Research Institute (AZRI) is conducted. The following is a summary of some major aspects of the evidence:

a) By 1959 the Animal Industry Branch (AIB) farm was established on lot 800 and NT portion 427. At that time the facilities on the site included two residential houses (a third house was built in the 1960s); a small animal breeding house; a farm office, two large cattle yards with sheds attached. an insufflation building for experimental purposes, a farm machinery shed and two other farm sheds; and, a "turkey nest" dam and two equipped bores.

b) The whole of lot 800 was boundary fenced in 1952 with cement fence posts and rabbit proof netting. NT portion 427 was boundary fenced at a later date but was securely boundary fenced when Mr Newton-Tabrett commenced employment with the AIB in 1959.

c) The AIB was responsible for biological (wildlife) research and an area close to the farm machinery sheds had been set aside for dingo research by the mid 1960s. This was enclosed by a big security fence and contained a number of pens for the study of dingoes. The CSIRO also had about 10 acres of land in the area for pasture introduction and a plant introduction nursery was constructed in the mid 1960s for this research.

d) By 1967, AZRI Laboratories had been established and were operational. In addition serology, pathology, nutritional, biology and botany facilities were in place.

e) In 1968 an area of irrigated fodder was set up in two sorghum trials and a long term lucerne production area. The Conservation Commission set up a large area in the late 1960s for nursery tree and plant propagation, and this was later adapted in part to endangered species breeding and research.

f) In 1972, the Department of Primary Industries and Fisheries (DPIF) set up an extensive and long term research program into grape varieties and olives. Further plantings were made of citrus and stonefruit to determine suitability for production in the area.

g) More recent major developments at the AZRI have included:

* Construction of a Controlled Environment Greenhouse (commenced in 1988).

* The transfer of all staff and functions to the AZRI site in 1989.

* Construction on the site of the Parks and Wildlife Commission Tom Hare Building and the transfer of all staff to this building as the local headquarters. The building was officially opened 30 May 1990.

* Surfacing, re-alignment and widening of major entrance roads and parking areas (Most of this was complete by 1991).

* Construction of the John Hayes Amenities Block adjacent to the DPIF complex and provision of a shade area (The building was opened on 28 June 1991).

* The original CSIRO plant industries block, now the Dahlenburg Block, has been developed into a major date variety introduction assessment and multiplication area (commencing in 1989).

* Security fencing and security gates have been constructed, to enclose the major buildings including residential houses, vehicle security parking areas and stockyards.

The extensive use made of areas 29 and 30 for the purposes and in the manner described is, and has been over an extended period, inconsistent with native title.

v) Reserve 888 (Reserve for Military Defence)

In November 1938 an area of 298 acres was reserved for the purpose of military defence (Reserve 888). The reserve was revoked in June 1984. The former reserve affected areas 80, 148, 159 and 160. In 1933 the land over which Reserve 888 was proclaimed had been declared to be a camping ground for Aboriginals under s 50(1) of the Aboriginals Ordinance 1918-1933. The declaration was not revoked until 1944, some years after the proclamation of Reserve 888. As the power to reserve land did not extend to land the subject of an existing reservation, there is some doubt as to the validity of the proclamation of Reserve 888. There is however no evidence that Reserve 888 was used for the purpose for which it was reserved and aerial photography of the area in the 1950s, 1970s, 1980s and 1990s shows that throughout this period it remained substantially undeveloped bushland. Even assuming the validity of the original proclamation there is no evidence that the use of the reserved land was inconsistent with native title.

vi) Reserve 889 (Alice Springs Golf Links Reserve)

In September 1952 an area of about 247 acres was reserved as a place for the recreation and amusement of the public for the purpose of golf links to be known as the Alice Springs Golf Links Reserve (Reserve 889). The land was located close to Alice Springs south of the Olive Pink Botanic Gardens adjoining Barrett Drive. On 14 September 1961 Special Purposes Lease 82 was granted for a term of 99 years over the land included in Reserve 889 for the purpose of a "golf course for the recreation and amusement of the members of the Golf Club". As previously indicated SPL 82 is a Scheduled interest. As any existing native title interests in respect of the land comprised in Reserve 889 (areas 73, 96, 157 and 158) were extinguished by SPL 82 it is unnecessary to consider the effect, if any, that the original reservation and use of the land may have had.

vii) Reserve 925 (Quarantine Reserve)

On 3 August 1949 an area of approximately 12 square miles (areas 1 and 3) was proclaimed as a reserve for the purpose of "Quarantine paddock for livestock" (Reserve 925). In 1970 the reserve was revoked as to an area of about 210 hectares (area 3) which was then proclaimed as part of an area reserved for the purposes of preservation of a place of historic interest (Kuyunba Reserve).

The Quarantine Reserve is divided into a number of paddocks, one of which is used for the purpose of confining livestock for quarantine purposes. There is evidence that the reserve has been used for other purposes. The witness statement of David Alan Newton-Tabrett (exhibit NT 11, para 7) establishes that as early as 1960 the Quarantine Reserve was securely boundary fenced. This was at a time when the land which later became NTP 942 (area 3) was still part of the reserve. Currently, the reserve area is fenced and secured by locked gates, and public access to all parts of the area is prohibited.

The concept of quarantine involves strict isolation (in this case of livestock) to prevent the spread of disease. The secure fencing and locking of gates as well as the exclusion of the public are all consistent with the use of the land for quarantine purposes. The fact that some of the land has been used for other purposes does not render the overall area any the less a facility for the quarantine of livestock.

The proclamation and use of the land as a "quarantine paddock" is inconsistent with native title.

viii) Reserve 1071 (Alice Springs Telegraph Station National Park)

By proclamation made on 11 October 1962 an area of "1096 acres 30 perches more or less" (areas 5, 6 and 10), was reserved pursuant to s 103 of the Crown Lands Ordinance 1931-1962 "for historical and recreation purposes to be known as Alice Springs Telegraph Station National Park and as Reserve 1071".

Area 5 was formerly part of an area reserved for the use and benefit of the Aboriginal natives of the Northern Territory by proclamation dated 7 December 1931. The reservation was revoked by proclamation dated 11 October 1962 which was published in the same issue of the NT Government Gazette (No 53, 7 November 1962) as the proclamation of the Alice Springs Telegraph Station National Park.

Area 6 was part of an area of 425 acres reserved for a similar purpose on 16 December 1936 and has been only partially revoked. The partial revocation by proclamation dated 29 September 1949 relates to an area of 20 acres which is not part of the claimed land. Area 6 is the balance of the original area and remains subject to the original reservation. This gives rise to a question as to the validity of the 1962 reservation insofar as it affects area 6. Section 103 of the Crown Lands Ordinance 1931 permitted the reservation of unalienated Crown land not the subject of any right of, or contract to, purchase. The expression "Crown land" was defined in s 5 to mean "all lands of the Crown or the Commonwealth in the Northern Territory other than reserved or dedicated land". As at 1962, area 6 remained as reserved land; accordingly it could not be the subject of a further reservation.

Area 10 does not have any relevant history prior to the proclamation of Reserve 1071.

On 17 May 1963 the Administrator committed the care, control and management of Reserve 1071 to the Northern Territory Reserves Board pursuant to s 13 of the National Parks and Gardens Ordinance 1959-1962, and on 1 January 1978 the management of the reserve was vested in Territory Parks and Wildlife Commission, a body established by the Territory Parks and Wildlife Conservation Ordinance 1976. Subsequently, on 30 June 1978, on the eve of self-government, the Administrator revoked the management arrangements for Reserve 1071 and on the same day declared -

each area of land specified in Schedule 2 (to the declaration) to be a reserve for the purpose or purposes for which it was reserved under the Crown Lands Ordinance by the proclamation referred to in Schedule 2 in relation to that reserve.

Schedule 2 to the declaration identifies a number of reserves including Reserve 1071, in respect of which the following particulars are shown:

Existing Name: Alice Springs Telegraph

Station National Park

Area: 445.3 ha.

Date of Proclamation: 11.10.62

Commonwealth Gazette No: 88 of 25.10.62

It will be noted that the area of 445.3 ha more or less equates to the area of 1096 acres 30 perches referred to in the 1962 proclamation.

It is clear that the intention of the Administrator's declaration was to declare the whole of the area referred to in the proclamation of 11 October 1962 (including area 6) to be a reserve. The Administrator's power to make a declaration under s 12(1) of the Territory Parks and Wildlife Conservation Ordinance was not affected by the fact that part of the land was subject to an earlier reservation under the Crown Lands Ordinance.

The declaration of 30 June 1978 did not extinguish native title. At the time s 12(7) of the Conservation Ordinance provided that upon the declaration of a park or reserve under subsection (1), all right title and interest, both legal and beneficial, held by the Crown in respect of the land vested in what was then the Territory Parks and Wildlife Commission which Commission can properly be regarded as an emanation of the Crown. It was constituted by a director appointed by the Administrator in Council and 4 members appointed by the relevant Ministers and it was required to perform its functions and exercise its powers in accordance with directions given by the Administrator in Council. Even if s 23B(3) of the Native Title Act is said to apply (a result which would depend upon whether the legislation expressly or impliedly conferred a right to exclusive possession) the vesting would not be a previous exclusive possession act unless apart from the Native Title Act it either extinguished native title or unless and until the land was used to any extent in a way that apart from that Act, extinguished native title (S 23B(9C)). Section 23B(9A) would not seem to be relevant as the vesting did not involve the establishment of a national or Territory park for the preservation of the natural environment of the area. The reserve was quite clearly established for historical purposes, being centred upon the preservation of the Old Telegraph Station and its environs. In fact, on 21 September 1979 the name of the reserve was changed to Alice Springs Telegraph Station Historical Reserve. The provisions in the Territory Parks and Wildlife Conservation Ordinance negate any suggestion of a clear and plain intention to extinguish native title. In particular this is demonstrated by s 122 which provides:

122.(1) Subject to subsection (2) and to the operation of this Ordinance in relation to parks and reserves, nothing in this Ordinance unless it expressly relates to Aboriginals 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.

(2) The operation of subsection (1) is subject to regulations made for the purpose of conserving wildlife in any area and expressly affecting the traditional use of the area by Aboriginals.

In 1979 the Territory Parks and Wildlife Conservation Act (No 2) was enacted. Section 14 provided that any estate or interest in any land held by the Commission should vest both legally and beneficially in the newly created Territory Parks and Wildlife Land Corporation. Effectively, the Corporation was to stand in the shoes of the Commission and accordingly, to the extent that the Commission's title was burdened by native title, so must the Corporation's title be burdened. In 1990 the Conservation Commission Act 1980 established the Conservation Land Corporation and vested the estate and interest of the Territory Parks and Wildlife Land Corporation in the new Conservation Land Corporation. Again, there was merely a substitution of one body for another. Nothing about the legislation by which this substitution was effected evidences an intention, and particularly not a clear and plain intention, to extinguish native title.

In the result, neither the reservation of areas 5, 6 and 10 nor the subsequent legislative vesting of the land has extinguished native title.

ix) Reserve 1281 (Olive Pink Botanic Gardens)

Areas 7 and 8 are presently covered by a native flora reserve (Reserve 1281) which was proclaimed in 1975.

On 1 October 1955 Occupation licence 368 was granted to Miss Olive Muriel Pink in respect of half an acre of land on what is now lot 1286 (area 7). The licence was renewed in 1960, 1966 and 1972, finally expiring on 31 March 1976. Early records establish that at least as early as February 1956 Miss Pink lived in a tent on the land and by May 1957 she had purchased a hut which was re-erected there and in which she lived for many years.

On 17 October 1956 area 7 was proclaimed as a Flora Reserve (Reserve 988) and on 13 January 1960 area 8 was proclaimed as a reserve for a similar purpose (Reserve 1052). On 13 May 1970 Reserves 988 and 1052 were revoked and the whole area re-proclaimed as Reserve 1281 for the purpose of a flora reserve. In 1975 Miss Pink died and trustees were appointed by notice published in the NT Gazette on 8 November 1972. Reserve 1281 was renamed the Olive Pink Flora Reserve. In 1996 approval was given for the renaming of the reserve as the Olive Pink Botanic Gardens.

The reserve had been fenced by the early 1960's and further improvements including a shed, employees' toilet, water tank and watering system were developed during the 1960s. In September 1986 the Alice Springs Town Council permitted the erection of a two metre high chain mesh fence which replaced the original fence on the northern, southern and western boundaries. The original barbed wire fence remains along the eastern boundary. In 1976 the trustees approved a development plan and in 1984 a visitor's centre including a residence was built in which a Curator lived for most of the time until March 1996. Between 1982 and 1985 walking tracks were established. Other facilities including a gazebo and a shade shelter have also been erected.

The reserve was first opened to the public in February 1985 and is now open during the hours 10am to 6pm daily; outside those hours the gate is kept locked.

The shade shelter referred to above was built in 1997, but otherwise all other structures within the reserve were constructed prior to December 1996 out of public funds made available through the NT Department of Lands, Planning and Environment and the Parks and Wildlife Commission of the NT and their predecessor agencies. Some assistance was received from the Rotary Club for the construction of the gazebo and from a private bequest for the construction of the shade shelter.

An important registered Aboriginal site (known as Thararle Tneme) is situated on area 8. The Aboriginal Areas Protection Authority gave authority for the current use of the area in question which is accessed by walking tracks and has interpretative signs displayed on it.

The use of Reserve 1281, at least since 1986 when a substantial fence was constructed on three sides of the area, and the exclusion of the public except during specified times, is inconsistent with the continuation of native title in respect of the whole area.

x) Reserve 1248 (Geological and Geophysical Research)

On 26 February 1969 NTP 1510 and Lot 5124 (areas 9 and 12 respectively) were reserved pursuant to s 103 of the Crown Lands Ordinance 1931 for the "purposes of long-term geological and geophysical research" (Reserve 1248).

The same area was on 1 May 1984 declared a protected area pursuant to s 22 of the Territory Parks and Wildlife Conservation Act. Section 22(1) merely authorises the Administrator to declare an area of land, including alienated and reserved land, as a protected area, in relation either to wildlife generally or to a specified species. In a declaration under s 22(1) the Administrator may specify an article which may not be taken into a protected area without authority. Other sections of the Act authorise the displaying of notices indicating that the area is a protected area (s 23(1)); prohibiting the taking of wildlife from a protected area (s 23A); and restricting the presence of weapons, traps and other articles in a protected area (s 24).

Neither the reservation of the land nor its declaration as a protected area is inconsistent with native title. No other basis relating to the use of the land pursuant to the reservation or the declaration is advanced as having that effect.

xi) Reserve 1294 (Historical and Recreational Reserve)

Area 11 was proclaimed as a reserve for "historical and recreational purposes" on 28 October 1970 (NTG 43/1970) and is designated as Reserve 1294. The land is a small area of approximately 1.7 hectares adjacent to the western boundary of Reserve 1071. The land, which remains as unalienated Crown land, was placed under the control of the NT Reserves Board in December 1970 and is presently managed by the Conservation Commission. The purpose for which the reserve was proclaimed does not disclose a clear and plain intention to extinguish native title and there is no evidence as to the use of the reserve which would have such an effect.

xii) Reserve 1602 (Public Park)

Area 23 (lot 6480) is part of an area (then known as lot 4755) comprising 5.06 hectares which was reserved for a public park (Reserve 1602) in July 1977. The reserve which was partially revoked (as to 5860 square metres) in July 1986 was not created for a purpose that is inconsistent with native title nor is there evidence concerning its use that would affect the continuation of any such rights. From 1950 to 1971 the land in question was the subject of a previous exclusive possession act (ML 456).

xiii) Reserve 1708 (Municipal Purposes Reserve)

Areas 13-22 (inclusive) were proclaimed a reserve for municipal purposes (Reserve 1708) on 8 December 1983 (NTG G50 16.12.1983). Areas 13-19 are part of the bed of the Todd River and areas 20-22 are part of the bed of the Charles River. On 24 January 1984 the Alice Springs Town Council was appointed as trustee of Reserve 1708. Neither the reservation of the land nor the appointment of a trustee created an interest in the land inconsistent with native title.

In 1932 a small portion of area 18 (5 acres 3 roods) was surveyed and annotated on an old public plan as a gravel reserve but there is no evidence that it was ever declared as such nor is there any evidence as to its use.

xiv) Reserve 1789 (Kuyunba Reserve)

On 7 May 1970 the land known as Kuyunba Reserve (Reserve 1789) (areas 2 and 3) was proclaimed under s 103 of the Crown Lands Ordinance 1931-1969 as a reserve "for the purposes of preservation of a place of historic importance". The area was declared a reserve under s 12(1) of the Territory Parks and Wildlife Conservation Act on 21 November 1980. Notwithstanding that by subsection 12(7) upon the declaration of the park all right, title and interest both legal and beneficial held by the Territory in respect of the land (including any subsoil) within the park, vested in the Corporation, for reasons that are more fully explained earlier in these reasons, the vesting of the land is not a previous exclusive possession act (s 23B(9C)).

Approximately 86% of the reserve is a registered site under NT sacred sites legislation. The purpose for which the land was reserved, is not inconsistent with native title.

xv) Areas 25 and 26 (Proposed Telegraph Station Reserve Extension)

Area 25 (NTP 1927) is the subject of CLP 595 granted to the Conservation Land Corporation on 23 December 1986. Reference has been made earlier to the purpose for which the lease was issued and the conclusion that the lease is not a previous exclusive possession act.

NTP 1927 includes an area formerly known as NTP 1453, the subject of SPL 364 to which reference is made earlier. SPL 364 is a previous exclusive possession act. NTP 1453 was cancelled in 1981 and added to NTP 1927.

Area 25 also includes part of a road which was closed in 1985 and later included in NTP 1927.

Although it appears that NTP 1927 was proposed as an extension to the Telegraph Station Reserve it has never been declared to be a reserve or park under either the Crown Lands Act or the Territory Parks and Wildlife Conservation Act.

Area 26 (NTP 5774) is the subject of CLP 445 granted to the Conservation Land Corporation on 24 April 1986. Reference has been made earlier to the purpose for which the lease was granted and the conclusion that the lease is not a previous exclusive possession act.

NTP 5774 was proposed as an extension to the Telegraph Station Reserve but no action has ever been taken to declare the area a reserve or a park under either the Crown Lands Act or the Territory Parks and Wildlife Conservation Act.

At the time CLP 445 was granted, the Conservation Land Corporation granted an easement for a right of way to the Aboriginal Development Corporation which holds Special Purposes Lease 554 in respect of Lot 5123 which is entirely surrounded by NTP 5774. As the terms of the easement do not grant the Aboriginal Development Corporation a right to exclusive possession of the land to which it relates it does not extinguish native title.

xvi) West Macdonnell National Park

Area 24 is the subject of CLP 770 granted to the Conservation Land Corporation on 16 August 1990. Reference has been made earlier to the purpose for which the lease was issued and to the conclusion that the lease is not a previous exclusive possession act.

On 30 September 1990 the Administrator, pursuant to s 12(1) of the Territory Parks and Wildlife Conservation Act declared the whole of the land comprised in CLP 770 to be a park known as Simpson's Gap Extension. Subsequently the name was changed to West Macdonnell National Park (NTG G10, 8.3.1995).

For reasons more fully explained earlier in these reasons the vesting of the land in the Conservation Land Corporation pursuant to s 12(7) upon the declaration of the park is not a previous exclusive possession act.

xvii) Storm Water Channels and Retardation Drains, Drains etc

Areas 77, 78, 79, 84 and 85 have been set aside for and are used as unlined storm water channels, and areas 81, 82 and 104 have been set aside for and are used for the purpose of flood retardation dams. The applicants' claim in respect of these areas is expressed as not to interfere with the use of the land for those purposes. Each of the areas in question is within or adjacent to a relatively recent subdivision of land for residential purposes. The current use of the land for the purposes described is inconsistent with the continuation of native title.

Other areas which have been set aside for water supply and drainage purposes are:

Area 32 - set aside for water supply purposes in 1972;

Area 38 - set aside as a drainage area in 1993; and

Area 39 - set aside as a drain in 1993.

In addition area 52 is said to be used for drainage purposes although there is no evidence to suggest that the land has been specifically set aside for that purpose.

The evidence does not support a finding that the setting aside and/or use of these areas for the purposes indicated is inconsistent with native title.

INCONSISTENT LEGISLATIVE REGIMES

120. The respondent asserts that native title has been extinguished by reason of the establishment of various legislative regimes which are said to be inconsistent either in whole or in part with the continuation of native title. Each category is dealt with below.

i) Water

The respondent points out that the application in this proceeding includes a claim to the ownership of property in water within the claimed land. It is said that the creation of various rights and legal regimes under the Control of Waters Ordinance 1938 (now replaced by the Water Act 1992) and the regulations made thereunder are inconsistent with and thereby extinguish any native title rights of ownership of water. As the evidence does not support the applicants' claim to ownership of the water resources of the claimed land the real issue in regard to water is whether the undoubted native title right of use has been affected by legislative intervention.

The Control of Waters Ordinance 1938 provided in s 3:

3(1) The property in, and the right to the use and flow and to the control of, the water at any time in any lake, spring or watercourse shall, until appropriated by other persons under this or some other Ordinance vest 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.

The vesting of "the property in, and the right to the use and flow and the control of" the water described, which the respondent relies upon as extinguishing any native title right to ownership, use and control of waters is severely qualified by paragraphs 3(1)(a) and (b). 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.

Section 9 of the Water Act 1992 which has replaced the Control of Waters Ordinance, provides:

9. (1) In this Division, "water means -

(a) the water flowing or contained in a waterway; or

(b) ground water.

(2) Subject to this Act, the property in and the rights to the use, flow and control of all water in the Territory is vested in the Territory and those rights are exercisable by the Minister in the name of and on behalf of the Territory.

Although s 9 does not contain the qualifications to the vesting which are found in the former s 3, the section is expressed to apply "subject to this Act", and as s 10 provides, inter alia, that "a person may take water from a waterway for domestic purposes" the native title right to use water within the claimed land for the purpose of sustenance is unaffected.

ii) Minerals

The application includes a claim to the absolute ownership of property in all natural resources, including rights of extraction of "all ochres, soils, mineral ores and associated substances".

In their respective submissions the parties have addressed various issues raised by Commonwealth and Territory legislation affecting the ownership and vesting of minerals and to related questions but as the applicants have pointed out, their principal concern in relation to the exploitation of minerals in the claim area stems from questions relating to access to land and although they and their ancestors have traditionally used ochre and other substances which could be construed as minerals for ceremonial purposes, there is no evidence that they are, or were, obtained from any of the claimed land.

It is also appropriate to observe that nothing in the evidence of the applicants' witnesses suggests that their traditional laws and customs related to the extraction or use of minerals or other substances extracted from the ground. In the circumstances the question of native title rights to minerals is not one which is an issue in this proceeding.

iii) Flora and Fauna

The applicants' claim to the exclusive use and enjoyment of natural resources in the claim area would include flora and fauna and the right to hunt, fish, forage and gather such resources.

There can be no question that the traditional laws and customs of the applicants and their ancestors related to the use of the food resources of their country for sustenance.

The respondent says that by the creation of inconsistent rights and legal regimes under the Territory Parks and Wildlife Conservation Act and its predecessors, native title rights in relation to flora and fauna have been extinguished, in whole or in part. In the alternative it is submitted that the right to hunt and gather flora and fauna, within strict limitations, are the only rights preserved by legislation dealing with these subjects.

In its submission the respondent asserts that section 29 of the Wildlife Conservation and Control Ordinance 1963 vested property in fauna in the Crown. It is said that such vesting of property, in conjunction with statutory control and prohibition on unauthorised taking and use of fauna goes beyond regulation of the exercise of common law entitlements and has the effect of extinguishing claimed native title rights in fauna but the basis of this proposition is flawed. Section 29 of the Wildlife Conservation and Control Ordinance 1963, in the form originally enacted provided:

29. Protected animals, partly protected animals and game are the property of the Commonwealth until they are lawfully taken or killed by a person.

The section was repealed by the Wildlife Conservation and Control Ordinance 1968 and the following new section inserted:

29.

(1). Subject to the next succeeding sub-section, protected animals, partly protected animals and game are the property of the Commonwealth.

(2). When a person lawfully kills or takes into his possession or control any animal that is protected or partly protected or is game, the animal becomes the property of that person unless the killing or taking was done by him as the servant or agent of another person, in which case the animal becomes the property of that other person.

(3). When an animal that has become the property of a person by reason of the last preceding sub-section escapes from his possession or control it becomes the property of the Commonwealth.

(The definitions and other provisions relating to protected and partly protected animals and game effectively extend to all species except fish).

No reference is made in the respondent's submission to s 54 of the Ordinance which (as amended in 1964) provided:

54.(1) The provisions of this Ordinance, except sections 36, 43 and 49 of this Ordinance shall have no operation with respect to an Aboriginal native of Australia.

(2) The provisions of sections 17 and 18 of this Ordinance apply in relation to an Aboriginal only in respect of the sanctuary firstly described in the Third Schedule but have no application where that sanctuary is the tribal land of the Aboriginal.

Sections 17 and 18 involved prohibitions on entering or being in sanctuaries without lawful excuse and taking fire-arms or traps into sanctuaries. The three sections referred to in s 54(1), which were to apply to "Aboriginal natives", were those prohibiting sale or barter of protected animals without a permit, importing exotics such as sparrows, starlings and Indian mynas and keeping pets and releasing pests.

The Wildlife Conservation and Control Ordinance was repealed by the Territory Parks and Wildlife Conservation Ordinance 1976 which introduced a new regime in relation to the regulation of the hunting and sale of wildlife. The new Act also provided in s 46:

46. All plants on Crown land or plants that are wildlife on land leased from the Territory are the property of the Territory.

However, section 112(1) provides that nothing in the Ordinance (now Act) prevents Aboriginals who have traditionally used an area of land or water from continuing to use the area of land or water for hunting, for food gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes.

The Northern Territory legislation is clearly distinguishable from that which was under consideration in Eaton v Yanner (unreported Queensland Court of Appeal, 27 February 1998) and does not go beyond the mere regulation of the exercise of the common law native title rights of the applicants to hunt and gather food resources for their own sustenance.

iv) Aboriginal People

The Northern Territory Aboriginals Act 1910 (SA) and subsequent legislation, in particular The Aboriginals Ordinance 1918, provided for the declaration of prohibited areas from which Aboriginal people were excluded except by virtue of a permit or exclusion. Prohibited areas were declared from time to time under the 1918 Ordinance which extended to all of the claimed land except area 2 and parts of areas 1 and 3. The respondent asserts that native title has been wholly extinguished with respect of such prohibited areas.

The constitutional validity of the Aboriginals Ordinance 1918 was considered and upheld by the High Court in Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1. The Ordinance was repealed by the Welfare Ordinance 1953.

In Kruger the High Court was of the view that the intention of Aboriginals Ordinance 1918 was for the protection and advancement of Aboriginal people albeit that current perceptions of protection and advancement differ from those held at the time the Ordinance was in effect. It would be quite contrary to the beneficial intention of the Ordinance for it to be construed as evidencing a clear and plain intention that the declaration of a prohibited area should adversely affect native title rights and interests. Furthermore, the exclusion of Aboriginal people from prohibited areas was not absolute as declarations did not apply to those Aboriginals entitled to be or remain within the area with the permission of the Protector of Aborigines.

The respondents' submission must be rejected.

v) Local Government

The respondent says that by-laws created pursuant to the Local Government Act which apply to all public places within the municipal area of the Alice Springs Town Council and which prohibit the lighting of fires, the taking of birds and animals, interfering with flora and camping are inconsistent with the continued existence of any native title right to occupy or obtain sustenance from such places and extinguish native title to that extent. Apart from this bare assertion, the respondent advances no argument to supply its submission.

The respondent's position is a curious one. First, it is noted that although the Alice Springs Town Council was from the outset a party to the proceeding, it chose not to take any part in it and accordingly cannot be said to support the respondent's argument. Second, the term "public place" as used in the by-laws to which the respondent refers is defined as "any place within the municipality which is open to or used by the public".

The Court is able to take judicial notice of the fact that not only are the beds of the Todd and Charles Rivers places within the municipality which are open to the public but they are extensively used by members of the public, particularly Aboriginal people, as a place to camp. Whether or not such people first obtain a permit to camp pursuant to the by-laws does not appear from the evidence but it would be stretching credibility somewhat to suggest that those who camp in the Todd and Charles Rivers do so strictly in accordance with the by-laws.

Be all that as it may, the by-laws to which reference is made by the respondent do no more than regulate the conduct of all people, Aboriginal and non-Aboriginal, and do not evidence a clear and plain intention to thereby extinguish native title.

vi) Soil Conservation

On 3 July 1980 an area of land which is part of area 28 was declared to be a "Restricted Use Area" pursuant to the provisions of s 20B of the Soil Conservation and Land Utilization Act. The Soil Conseration and Land Utilization Act is an Act "to make provision for the prevention of soil erosion and for the conservation and reclamation of land". A declaration under s 20B may be made if "an area of land is subject to soil erosion through use or continued use of it by the public". (S 20B (2)). Section 20C(1) provides that, unless with the written permission of the proper authority, a person within a restricted use area shall not -

(a) unless he is on an exempted road, have in his possession or use a motor vehicle;

(b) remove or damage any vegetation;

(c) take or remove any sand, gravel, rock, clay or earth;

(d) interfere with any erosion prevention works; or

(e) cause water or other fluid to be drained or to flow over the area.

The respondent says that the declaration of a restricted use area over part of area 28 has extinguished any native title rights to do any of the things specified in s 20C(1).

The declaration of an area as a restricted use area does not prohibit access to the land and it does not confer a right to possession of the land on any person. The purpose of the legislation is quite specifically directed to the conservation of eroded land; it does not reveal a clear and plain intention to extinguish native title. Rather it merely regulates the enjoyment of the land by those who are otherwise entitled to its use by creating a regime of control that is consistent with the continued enjoyment of native title. (See Mabo No 2, per Brennan J at p 64).

vii) Defence

During World War II, pursuant to Regulation 4 of the National Security (General) Regulations, the relevant Minister could declare a place to be a prohibited place and in addition certain other places were deemed to be prohibited places. Regulation 4(2) provided that -

A person shall not without lawful authority (proof whereof shall lie upon him) enter approach, inspect, passover or be in or in the neighbourhood of a prohibited place.

Area 32 and area 106 are said to have been within prohibited places although the applicants have raised a number of issues which raise some doubt as to whether this is strictly so. The respondent says that native title in respect of those areas was wholly extinguished as access to them by native title holders was completely prohibited.

It is beyond question that the National Security Regulations were intended to provide only a temporary regime of regulation during wartime. Indeed, to be otherwise, they would not have been a valid exercise of constitutional power. The applicants say of the Regulations in response to the respondents' submission:

They constituted a temporary intrusion on the rights of individuals for the general purpose of national security. In short, they were a short term measure which was protective of native title (as of the property rights of other members of the Australian community) and cannot be said to have had an extinguishing effect.

That this is so is put beyond question by s 5 of the National Security Act 1939 under which the Regulations were made. Section 5(1)(b)(ii) provided:

5.(1) Subject to this section, the Governor-General may make regulations for securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth, and in particular -

(a) ...

(b) for authorizing

(i) ...

(ii) the acquisition, on behalf of the Commonwealth, of any property other than land in Australia.

It is clear that native title was not extinguished in relation to any areas affected by a declaration pursuant to regulations made under the National Security Act.

SUMMARY OF EXTINGUISHING ACTS

121. The conclusions expressed above relating to the extinguishment of native title can be summarised as follows:

Leasehold interests:

i) Each of the leasehold interests specified below is a previous exclusive possession act which has extinguished native title in respect of the whole or part of one or more areas of claimed land.

a) Scheduled interests: (s 23B(2)(c)(i))

CLP 455

CLT 550

CLT 721

ML 38

ML 434

ML 534

ML 535

SPL 82

SPL 92

SPL 221

SPL 337

SPL 364

AL 499

AL 500

AL 501

AL 502

AL 503

AL 504

AL 514

AL 522

AL 704

LTL 1593

LTL 1598

LTL 2061

LTL 2686

TLSL 9

TLSL 10

b) Commercial leases that are neither on agricultural lease nor a pastoral lease (s 23B(2)(c)(iii)):

CLT 1132

CLT 1136

ML 394

ML 429

ML 430

ML 442

ML 443

ML 456

ML 482

ML 503

SPL 58

SPL 59

SPL 222

c) Community Purpose Lease (s 23B(2)(c)(vii))

ML 271

d) Leases (other than mining leases) that confer a right of exclusive possession over particular land or waters (s 23B(2)(c)(viii)

CLP 764

CLT 101

CLT 104

CLT 411

CLT 511

ML 483

AL 423

Freehold Estates

ii) Native title has been extinguished by the grant of a freehold estate in relation to each of area 34 and area 164.

Public Works

iii) a) Native title has been extinguished by public works affecting the whole of each of areas 31, 35, 41, 44, 53, 93, 99 and 100.

b) To the extent that other parts of the claimed land have been affected by the construction or establishment of public works, native title has been extinguished in relation to the land or waters on which the public work is constructed, established or situated and in respect of 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.

Reservations etc

iv) Native title has been extinguished by the following reservations, setting aside or use of land which is inconsistent with native title:

Reserve 889 (Alice Springs Golf Links Reserve)

Reserve 925 (Quarantine Reserve)

Reserve 1281 (Olive Pink Botanic Gardens)

Arid Zone Research Institute (Areas 29 and 30)

Storm water channels and retardation dams

(Areas 77, 78, 79, 81, 82, 84, 85 and 104)

SECTION 47B

122. One of the amendments made to the Native Title Act in 1998 was the introduction of s 47B which has the effect of mitigating some of the consequences of acts which have otherwise extinguished native title. The circumstances in which the section has application are expressed in subsection (1) which provides:

47B(1) This section applies if:

(a) a claimant application is made in relation to an area; and

(b) when the application is made, the area is not:

(i) covered by a freehold estate or a lease; or

(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

(iii) subject to a resumption process (see paragraph (5)(b)); and

(c) when the application is made, one or more members of the native title claim group occupy the area.

In general terms it may be said that the section applies in respect of unalienated and unreserved Crown land. In this proceeding no part of the claimed land is "subject to a resumption process" as described in paragraph (5)(b) of the section but there are many parts of the claimed land which are not covered by either a freehold estate, a lease or a reservation or other use as described in paragraph (1)(b)(ii).

In circumstances in which s 47B applies, the consequence is (as stated in subsection (2)) that:

(2) For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

The construction and application of the section would present no serious difficulty in a situation where for example the indigenous population has continued to occupy land without disturbance during a period when the land has been the subject of say a lease which is a Scheduled interest. But in the context of the present application the section throws up a number of issues which are not without some difficulty.

123. The section applies if a claimant application (which this application is) is made "in relation to an area of land". The use of the singular in paragraph (1)(a) is consistent with s 13(1) of the Act which authorises the making of the application. In that section reference is made to an application "in relation to an area". The ordinary rules of statutory interpretation applicable to Commonwealth statutes require that in appropriate cases the singular include the plural and there is no suggestion that where (as in this case) two or more unconnected areas of land are included in a single application, the application is in any way deficient. Indeed, the applicants would say that their native title continues to exist in relation to the whole of the land and waters within the limits of their traditional country and that the fragmentation of the claim into separate parcels merely takes account of prior extinguishing acts recognised by the common law and the Native Title Act. In this sense the application can be regarded as relating to a single area, or at least what is left of that area after taking account of the extinguishment of native title.

124. Two related questions are thrown up by paragraph (1)(c). The first is what is meant by "occupy" and the second is what is "the area" referred to. In referring to "the area" paragraph (1)(c) presumably refers to "the area" in relation to which the application is made that is, the area referred to in paragraph (1)(a). If the application is regarded as having been made in respect of two or more separate areas, then the question of occupation would need to be addressed separately in relation to each of such areas. On the other hand, if the application is to be regarded as having been made to separate fragments of a single area then it would seem that occupation of any part of the claimed land would satisfy the requirement of paragraph (1)(c).

In the absence of binding authority applicable to the construction of this particular provision it is necessary to apply a meaning which is both consistent with the objects of the legislation and sensible. Some guidance is found in the judgment of Toohey J in Mabo No 2. His Honour there said at p 188-190:

The requirements of proof of traditional title are a function of the protection the title provides. It is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights. Presence would be insufficient to establish title if it was coincidental only or truly random, having no connexion with or meaning in relation to a society's economic, cultural or religious life. It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title. Thus traditional title is rooted in physical presence. That the use of land was meaningful must be proved but it is to be understood from the point of view of the members of the society.

North American cases have begun to articulate factors which will indicate this kind of presence on, or use of, land. Any such articulation cannot be exhaustive.

First, presence on land need not amount to possession at common law in order to amount to occupancy. United States and Canadian cases have required proof of occupancy be reference to the demands of the land and society in question "in accordance with the way of life, habits, customs and usages of the [indigenous people] who are its users and occupiers". In Hamlet of Baker Lake the Canadian Federal Court held that the Inuit succeeded in showing that they occupied their land. Mahoney J said:

The absence of political structures like tribes was an inevitable consequence of the modus vivendi dictated by the Inuit's physical environment ... Furthermore, the exigencies of survival dictated the sparse, but wide ranging, nature of their occupation.

...

The nature, extent or degree of the Aborigines' physical presence on the land they occupied, required by the law as an essential element of their Aboriginal title is to be determined in each case by a subjective test. To the extent human beings were capable of surviving on the barren lands, the Innuit were there; to the extent the barrens lent themselves to human occupation, the Inuit occupied them.

This aspect of occupancy need not be pursued further since the economy of the Meriam people on the Islands was, compared with that described in Hamlet of Baker Lake, settled and intensive. It is clear, however, that a nomadic lifestyle is not inconsistent with occupancy.

Secondly, it has been said that to amount to occupancy presence on land must have been established "long prior" to the point of inquiry. That is necessarily a relative concept. In Milirrpum Blackburn J was content to approach the plaintiffs' claim as requiring proof of occupancy from a "time in the indefinite past". He rejected the expression "from time immemorial", though used in the statement of claim, as having technical connotations that were of no relevance to the plaintiffs' case. Blackburn J thought it necessary that the plaintiffs prove occupancy from the acquisition of English sovereignty, a view also taken by Mahoney J in Hamlet of Baker Lake. If occupation by an indigenous people is an established fact at the time of annexation, why should more be required? In any event, in the present case, the defendant did not argue that the plaintiffs failed because their presence on the Islands was too recent.

Thirdly, it was said in United States v Santa Fe Pacific Railroad Co:

If it were established as a fact that the land in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais has "Indian title". (Emphasis added).

This principle of exclusive occupancy is justified in so far as it precludes indiscriminate ranging over land but it is difficult to see the basis for the rule if it precludes title merely on the ground that more than one group utilizes land. Either each smaller group could be said to have title, comprising the right to shared use of land in accordance with traditional use; or traditional title vests in the larger "society" comprising all the rightful occupiers. Moreover, since occupancy is a question of fact, the "society" in occupation need not correspond to the most significant cultural group among the indigenous people.

125. Given the context in which s 47B was enacted, namely as part of Parliament's response to the decision in Wik, it is reasonable to assume that in referring to the occupation of land in s 47B(1)(c) the legislature had in mind what had previously been said by the High Court concerning the occupation of land by the indigenous people. By application of the general thrust of the passage from the judgment of Toohey J quoted above to the facts of this case, the following general principles would appear to be appropriate to apply:

a) Lot and portion boundaries, which have been established by the Northern Territory authorities for administrative purposes have no relevance in defining areas in relation to which native title exists;

b) Separated parts of the claimed land (whether made up of a single or of multiple lots and/or portions) which are remote from each other need not necessarily be regarded as separate areas for the purpose of paragraph (1)(c);

c) The occupation of land should be understood in the sense that the indigenous people have traditionally occupied land rather than according to common law principles and judicial authority relating to freehold and leasehold estates and other statutory rights. The use of traditional country by members of the relevant claimant group which is neither random nor co-incidental but in accordance with the way of life, habits, customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.

(d) In applying s 47B regard should be had to the portion or portions of the claimed land actually occupied in the sense described above at the time the application is made.

126. The applicants adduced evidence from a group of 18 witnesses touching upon their use of the claimed land from which they seek to establish that at the time the application was made one or more members of the claimant group occupied parts of the claimed land which have been subjected to extinguishing acts. To some extent the evidence was repetitious and in a number of cases it related to areas which have not been affected by prior extinguishing interests. It is not proposed to recount every detail of their evidence but rather to express in summary form the conclusions which can be drawn from it.

i) Rosie Ferber Ampetyane is a senior member of the Mparntwe group. She has at all times relevant to this application resided at Amoonguna and at Mpweringke outstation (which is approximately 50 km north of Alice Springs) neither of which are on claimed land. She has at times collected bush medicine from the Middle Park area (area 70) and around the Old Telegraph Station and has been actively and extensively involved in assisting in the protection of sacred sites including a number of important sites on claimed land and for that purpose has frequently visited those parts of the land. This evidence is sufficient to establish that when the application was made Ms Ferber occupied at least part of area 70 of the claimed land.

ii) Eli Rubuntja Pengarte resides at the Anthepe Town Camp and has done so since 1975. He is a member of the Mparntwe group. The Anthepe Camp is situated close to, and to the west of, Stuart Highway south of Heavitree Gap. The evidence establishes that Mr Rubuntja and others hunt and gather food and observe traditional ceremonial activities in the general area of Anthepe on land which in this application is identified as areas 62, 151, 152, 153, 154, 155, 161, 162 and 163 and it can fairly be said that when the application was made Mr Rubuntja occupied those areas.

iii) Sabella Turner Kngwarraye is a member of the Antulye group. At the time the application was made she resided at Ilpeye Ilpeye Town Camp on the east side of Alice Springs adjacent to surrounding vacant Crown land. The evidence establishes that at the relevant time Ms Turner used the land to the east of Ilpeye Ilpeye and the west of the Undoolya Station boundary for the purpose of hunting and collecting bush food and medicine and that she used land in the vicinity of sites known as Arnkarre Atherrke-Atherrke (site 76) and Irrlparle (site 74) and vacant Crown land between Ross Highway and Amoonguna to obtain firewood and gather bush food and medicine. These activities are sufficient to establish that when the application was made she occupied areas 27, 135, 136, 138, 139, 140, 143 and 167.

iv) Renee McLean Ampetyane is a member of the Irlpme group. She resided at a camp at Middle Park (area 70) for a period of 7 years including the time when the application was made. She and her sisters used the land surrounding the camp to gather food and medicine, collect firewood and obtain water from a soakage in the bed of the Todd River. These activities establish that when the application was made Ms McLean occupied areas 70, 122 and 123.

v) Myra Hayes Ampetyane is connected to both the Mparntwe and the Antulye groups. Since 1990 she has lived permanently on vacant Crown land at a site known as Irrkerlantye Atwatye (site 33) at a camp commonly known as White Gate. The camp is located centrally in relation to areas 137, 138, 139, 143 and 144 all of which are used for the purpose of collecting firewood and gathering bush food and medicine. In addition Ms Hayes and members of her family travel over and hunt and gather bush food on area 140. On occasions she camps at the site known as Aherre-Aherre (site 19) on area 137. There are places within these areas which are used for bush camps in relation to the training and initiation of young men. Ms Hayes' activities in relation to the land establishes that when the application was made she occupied areas 137, 138, 139, 140, 143 and 144.

vi) Frank Stevens Peltharre is a member of the Mparntwe group and resided at Sixteen Mile outstation (about 30 km north of Alice Springs) at the time the application was made. His evidence deals with his activities in relation to assisting government officials in the protection of sacred sites on areas 87, 141, 142, 147, 166 and 168. Although the protection of sites is an important traditional activity, the fact that a person from time to time enters upon the land in question in pursuit of that activity is not, by itself, sufficient to amount to occupation of the land.

vii) Robert Francis Stuart Kngwarraye is a member of the Mparntwe group. He resided in Alice Springs when the application was made. His evidence deals mainly with his use of area 27 which is currently the subject of CLP 764 in favour of the Mbantarinya Aboriginal Corporation. A second aspect of Mr Stuart's evidence is in all material respects the same as that of Frank Stevens, and for the reasons expressed above Mr Stuart cannot be regarded as having occupied the areas in question at the relevant time.

viii) Patrick McMillan Perrurle resided at Uyenpere Atwatye (site 51) (sometimes known as Hidden Valley) on area 146 when the application was made. He is a member of the Mparntwe group. At the relevant time Mr McMillan used the land to the east and south of his camp for hunting, obtaining water and gathering firewood, bush food and medicine. He would share the results of his hunting with other members of his family in accordance with traditional Aboriginal practices. These activities establish that when the application was made he occupied areas 27, 139, 140, 146, and 150.

ix) Veronica Golder Pengarle is a member of the Mparntwe group. She has resided at the Ilpeye Ilpeye town camp for over 15 years. Her evidence deals with her activities in collecting firewood, bush tucker and bush medicine on land close to Ilpeye Ilpeye which is identified as areas 138, 139, 140,143 and 144. She also collects bush tucker on the Mbantarinya Aboriginal Corporation lease (area 27). All of the areas mentioned have been dealt with in the evidence of other witnesses. There are however two other matters referred to by Ms Golder. She says that during 1993 and 1994 she was involved in a tree planting project on Billygoat Hill (area 32) which was organised by Greening Australia. That activity does not amount to occupying area 32 in any relevant sense. Her evidence also deals with another part of the claimed land. At paragraph 5 of her witness statement (exhibit A 64) she states:

I also regularly visit Ankerre-ankerre (Coolibah Swamp) (site 47) to collect alpmenye (bark from the coolibah tree). This is the country shown on the map as Claim Area 142. This bark is burned to make ash to chew with ingkwerlpe (native tobacco) or tobacco. I walk to Ankerre-ankerre. I have been doing that since I have been living at Ilpeye Ilpeye.

Area 142 was subdivided in 1994 to form lots 8163 - 8166. The land has a frontage to Stott Terrace close to, but on the opposite side of Stott Terrace, from Sadadeen High School. It is in reasonable proximity to Ilpeye Ilpeye. Given Ms Golder's continued involvement in the use of her traditional country for the gathering of food and medicine and her long term residence at Ilpeye Ilpeye it is appropriate to regard her continued use of the resources of area 142 as part of her continued occupation of her traditional country.

127. It is unnecessary to canvass the evidence of the remaining witnesses of the group referred to in the preceding paragraph. In some cases their evidence relates to areas which have been found to have been occupied by one or more members of the claimant group at the time when the application was made and in other cases it relates to areas which have not been affected by any prior extinguishing interest. It is sufficient to say that in each case the evidence is along similar lines to that summarised above and establishes occupation of the areas referred to at the relevant times. The names of the witnesses and the areas to which their evidence relates are as follows:

i) Teresa Webb Angale (Irlpme group)

Areas 135, 136 and 137

ii) Brian Kevin Stirling Kemarre (Mparntwe group)

Areas 27, 137, 138, 139, 140, 143 and 146

iii) Jean Stuart Kemarre and her daughter

Rona Stuart Kemarre (Atulye group)

Areas 80, 88, 92, 94, 147, 148 and 150

iv) Marie Elena Ellis Kemarre/Perrurle and her sister

Roseanne Philamena Ellis Kemarre/Perrurle

Areas 135, 136 and 137

v) Felicity Hayes Angale

Areas 116, 131 and 132

vi) Patricia Anne Miller Kemarre and her sister

Karen Liddle Kemarre (Mparntwe group)

Areas 27, 89, 90, 129, 133, 134, 136, 137, 138, 143, 144 and 167

128. The provisions of s 47B do not apply to land covered by a lease (and thus does not apply to area 27) and further have relevance only in relation to land in relation to which native title has been extinguished by the creation of a prior interest in the land. Areas which were occupied by one or more members of the claimant group when the application was made but which have not been the subject of a prior extinguishing interest are areas 80, 88-90, 92, 94, 116, 129, 131-134, 137, 147, 148, 150 and 151. The section does however operate so as to require that any extinguishment of native title by the creation of a prior interest be disregarded in relation to areas 62, 70, 122, 123, 135, 138-140, 142-144, 145, 152-155, 161-163 and 167.

CONCLUSIONS

129. The applicants are entitled to a determination of native title which reflects the findings expressed in these reasons.

Section 225 of the Native Title Act sets out the information which such a determination must contain. The section provides:

225. 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.

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

Consistent with the Court's findings the determination area comprises:

a) Areas 2, 5, 6, 9 to 22 (inclusive), 24, 26, 32, 38, 39, 42, 43, 45, 46, 51, 52, 55, 57 - 62 (inclusive), 70, 72, 74 - 76 (inclusive) 80, 83, 88 - 90 (inclusive), 92, 94, 95, 98, 101 - 103 (inclusive) 105, 109 - 111 (inclusive), 116, 117, 120 - 140 (inclusive), 142 - 144 (inclusive), 146 - 155 (inclusive), 161 - 163 (inclusive) and 165 - 168 (inclusive).

b) Those parts of areas 25, 28, 33, 36, 40, 49, 54, 71, 87, 106, 108, 112, 118, 119, 141, 145 and 156 which have not been the subject of a previous exclusive possession act or a category A intermediate period act.

EXCLUDING any land or waters on which a public work is or has been constructed or established and any adjacent land.

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

131. Consistent with the Court's findings the determination will provide:

i) Native title exists in respect of the determination area.

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

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

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

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

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

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

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

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

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

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

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

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

133. One of the determinations that the Court is required to make is whether the native title is to be held in trust, and if so, by whom (s 56(1)). For the purpose of complying with its obligations under s 56(2) the Court requests that Myra Hayes Ampetyane as a representative of the persons who it is proposed will be included in the determination as the common law holders to indicate whether the common law holders intend to have the native title held in trust by:

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

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

In the event that the common law holders give such nomination within the period specified, the Court will determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders (s 56(2)(b)), otherwise the Court will determine that such rights and interests are to be held by the common law holders (s 56(2)(c)).

(EXPLANATORY NOTE: The appendix identifies the Northern Territory portion/lot number for each claimed area. The current tenure status is indicated immediately below the NT portion or lot number. Particulars of prior acts which extinguish native title in respect of either the whole or part of the area are marked with an asterisk (*). In each case where a prior extinguishing act is required to be disregarded the notation "s 47B applies" has been added).

Area 1. NTP 538

*Reserve 925 (Alice Springs Quarantine Reserve)

Area 2. NTP 935

Reserve 1289 (Kuyunba Conservation Reserve)

Area 3. NTP 942

Reserve 1289 (Kuyunba Conservation Reserve

*Formerly part of Reserve 925 (Quarantine Reserve)

Area 4. Withdrawn from claim

Area 5. LOT 941

Reserve 1071 (Alice Springs Telegraph Station Historical Reserve)

Area 6. LOT 943

Reserve 1071 (Alice Springs Telegraph Station Historical Reserve)

Area 7. LOT 1286

*Reserve 1281 (Olive Pink Botanic Gardens)

Area 8. LOT 1325

*Reserve 1281 (Olive Pink Botanic Gardens)

*1/1/20 - 31/12/40 - Partly within ML 38

Area 9. NTP 1510

Reserve 1248 (Geological and Geophysical purposes)

Area 10. NTP 1686

Reserve 1071 (Alice Springs Telegraph Station Historical Reserve)

Area 11. LOT 2314

Reserve 1294 (Alice Springs Telegraph Station National Park)

Area 12. LOT 5124

Reserve 1248 (Geological and Geophysical purposes)

Area 13. LOT 5140

Reserve 1708 (Municipal purposes)

Area 14. LOT 5141

Reserve 1708 (Municipal purposes)

Area 15. LOT 5142

Reserve 1708 (Municipal purposes)

Area 16. LOT 5804

Reserve 1708 (Municipal purposes)

Area 17. LOT 5805

Reserve 1708 (Municipal purposes)

Area 18. LOT 5806

Reserve 1708 (Municipal purposes)

Area 19. LOT 5807

Reserve 1708 (Municipal purposes)

Area 20. LOT 5808

Reserve 1708 (Municipal purposes)

Area 21. LOT 5809

Reserve 1708 (Municipal purposes)

Area 22. LOT 5810

Reserve 1708 (Municipal purposes)

Area 23. LOT 6480

Reserve 1602 (Public Park)

*1/7/50 - 30/6/71 Wholly within ML 456

Area 24. NTP 688

CLP 770 (West Macdonnell National Park)

Area 25. NTP 1927

CLP 595 (Conservation Land Corporation)

*8/8/75 - 17/9/80 Partly within SPL 364

Area 26. NTP 5774

CLP 445 (Conservation Land Corporation)

Area 27. NTP 8043

*CLP 764 (Mbantarinya Aboriginal Corporation)

Area 28. LOT 8212

CLP 1116 (Conservation Land Corporation - Desert Park)

*28/9/61-16/4/82 Partly within SPL 92

Area 29. NTP 427

*Crown land set and used for Arid Zone Research Station extension

Area 30. LOT 800

*Crown land set aside and used for Arid Zone Research Station

Area 31. NTP 1454

Crown land set aside and used for Alice Springs Government explosives reserve

*Public work (whole)

Area 32. LOT 2669

Crown land set aside for water supply purposes

Area 33. Lot 2683 (Note 1)

Crown land set aside for Anzac Hill High School

Area 34. LOT 5148

*Freehold Title granted to Power and Water Authority

Area 35. LOT 5192

Crown land set aside for a railway corridor

*1/7/54 - 30/6/75 Wholly within ML 503

*Public work (whole)

Area 36. Lot 5651 (Note 2)

Crown land set aside for Sadadeen Primary and Special School

*1/7/52 - 30/6/71 Partly within ML 482

Area 37. LOT 7819

Crown land set aside for a gem field

*14/9/87 - 26/8/91 Wholly within CLT 721

Area 38. LOT 8237

Crown land set aside for a drainage area

Area 39. LOT 8238

Crown land set aside as a drain

Area 40. LOT 950

Unalienated Crown land

*1/7/43 - 14/9/65 Partly within ML 271

Area 41. LOT 1031

Unalienated Crown land (Lands Department Survey Depot)

*Public work (whole)

Area 42. LOT 1285

Unalienated Crown land

Area 43. LOT 1343

Unalienated Crown land

Area 44. LOT 1602

Unalienated Crown land

* Public work (whole)

Area 45. LOT 1605

Unalienated Crown land

Area 46. LOT 2421

Unalienated Crown land

Area 47. LOT 2435

Unalienated Crown land

*1/7/59 - 14/2/69 Wholly within AL 704

*1/7/68 - 1/10/84 Wholly within ML 535

Area 48. LOT 2436

Unalienated Crown land

*1/7/59 - 14/2/69 Wholly within AL 704

*1/7/68 - 21/2/80 Wholly within ML 534

Area 49. LOT 2494

Unalienated Crown land set aside for drainage purposes

*1/7/48 - 21/5/56 Partly within ML 394

Area 50. LOT 2656

Unalienated Crown land

*3/9/85 - 26/6/87 Wholly within CLP 455

Area 51. LOT 2670

Unalienated Crown land

Area 52. LOT 3203

Unalienated Crown land used for drainage purposes

Area 53. LOT 3797

Unalienated Crown land

*Public work (whole)

Area 54. LOT 4291

Unalienated Crown land

*1/7/50 - 10/5/65 Partly within ML 442

Area 55. LOT 4438

Unalienated Crown land

Area 56. LOT 4442

Unalienated Crown land

*1/7/49 - 29/8/60 Wholly within ML 430

*10/12/59 - 28/6/72 Wholly within SPL 59

*2/9/69 - 5/2/80 Wholly within SPL 222

* Public work (part)

Area 57. LOT 4619

Unalienated Crown land

Area 58. LOT 4620

Unalienated Crown land

Area 59. LOT 4621

Unalienated Crown land

Area 60. LOT 4622

Unalienated Crown land

Area 61. LOT 4623

Unalienated Crown land

Area 62. LOT 5153

Unalienated Crown land

*1/7/54 - 30/6/75 Wholly within ML 503

s 47B applies

Area 63. LOT 5184

Unalienated Crown land

*1/7/54 - 31/7/59 Wholly within ML 434

*1/7/59 - Wholly within LTL 1593

Area 64. LOT 5242

Reserve 1666 (Public Recreation)

*1/7/52 - 30/6/71 Wholly within ML 482

*1/7/82 - 31/12/82 Wholly within TLSL 10

Area 65. LOT 5569

Unalienated Crown land (Westland Park)

*1/7/44 - 14/3/75 Wholly within AL 423

*1/7/81 - 13/7/81 Wholly within TLSL 9

Area 66. Withdrawn from claim

Area 67. LOT 5767

Unalienated Crown land

*1/7/50 - 10/5/65 Wholly within ML 442

Area 68. LOT 5768

Unalienated Crown land

*1/7/50 - 10/5/65 Wholly within ML 442

Area 69. LOT 5769

Unalienated Crown land

*1/7/50 - 10/5/65 Wholly within ML 442

Area 70. LOT 5816

Unalienated Crown land

*1/7/48 - 21/5/56 Partly within ML 394

s 47B applies

Area 71. LOT 6449

Unalienated Crown land

*1/1/20 - 31/12/40 Partly within ML 38

Area 72. LOT 6453

Unalienated Crown land

Area 73. LOT 6465

Unalienated Crown land

*30/10/60 - 24/6/83 Wholly within SPL 82

*27/3/83 Wholly within CLT 101

Area 74. LOT 6742

Unalienated Crown land

Area 75. LOT 6743

Unalienated Crown land

Area 76. LOT 6744

Unalienated Crown land

Area 77. LOT 7384 (Note 3)

Unalienated Crown land

*1/6/85 - 1/6/87 Wholly within CLT 411

*Storm water channel

Area 78. LOT 7385 (Note 3)

Unalienated Crown land

*1/6/85 - 1/6/87 Wholly within CLT 411

*Storm water channel

Area 79. LOT 7386 (Note 3)

Unalienated Crown land

*19/12/85 - 1/6/87 Wholly within CLT 511

*Storm water channel

Area 80. LOT 7393

Unalienated Crown land

Area 81. LOT 7411 (Note 4)

Unalienated Crown land

*Retardation dam

Area 82. LOT 7412 (Note 4)

Unalienated Crown land

*Retardation dam

Area 83. LOT 7413

Unalienated Crown land

Area 84. LOT 7417 (Note 3)

Crown land set aside for drainage, water supply and sewerage purposes *Storm water channel

Area 85. LOT 7418 (Note 3)

Crown land set aside for drainage, water supply and sewerage purposes *Storm water channel

Area 86. LOT 7422

Unalienated Crown land

*1/7/59 - 21/5/62 Wholly within LTL 1598

*1/7/65 - 5/5/67 - Wholly within CTL 2061

Area 87. LOT 7466

Unalienated Crown land

*1/1/20 - 31/12/40 Partly within ML 38

Area 88. LOT 7583

Unalienated Crown land

Area 89. LOT 7708

Unalienated Crown land

Area 90. LOT 7709

Unalienated Crown land

Area 91. LOT 7717

Unalienated Crown land

*1/7/49 - 22/2/65 Wholly within ML 429

Area 92. LOT 7727

Unalienated Crown land

Area 93. LOT 7728

Unalienated Crown land set aside for Alice Springs Fire Station

*Public work (whole)

Area 94. LOT 7741

Unalienated Crown land

Area 95. LOT 7742

Unalienated Crown land

Area 96. LOT 7859

Unalienated Crown land

*30/10/60 - 24/6/83 Wholly within SPL 82

*27/3/83 Wholly within CLT 101

Area 97. LOT 7862

Unalienated Crown land

*1/7/54 - 30/6/75 Wholly within ML 503

Area 98. LOT 7882

Unalienated Crown land

Area 99. LOT 7925

Unalienated Crown land

*Public work (whole)

Area 100. LOT 7926

Unalienated Crown land

*Public work (whole)

*1/7/69 - 23/6/88 Wholly within CTL 2686

Area 101. LOT 8047

Unalienated Crown land

Area 102. LOT 8051

Unalienated Crown land

Area 103. LOT 8053

Unalienated Crown land

Area 104. LOT 8054 (Note 4)

Unalienated Crown land

*Retardation dam

Area 105. LOT 8063

Unalienated Crown land

Area 106. LOTS 8064 and 8471

Unalienated Crown land

*1/7/49 - 22/2/62 Partly within ML 429

*1/7/50 - 10/5/65 Partly within ML 442

*1/7/52 - 30/6/73 Partly within ML 483

Area 107. LOT 8065

Unalienated Crown land

*1/7/49 - 22/2/65 Wholly within ML 429

Area 108. LOT 8066

Unalienated Crown land

*11/7/92 - 9/2/81 Partly within SPL 337

Area 109. LOT 8067

Unalienated Crown land (Teppa Hill)

Area 110. LOT 8068

Unalienated Crown land (Perta Hill) (Occupation Licence 3114)

Area 111. LOT 8069

Unalienated Crown land

Area 112. LOT 8070

Unalienated Crown land

*1/7/50 - 10/5/67 Partly within ML 442

Area 113. LOT 8071 (Now lot 8071 and lot 8610)

Unalienated Crown land

*1/7/49 - 29/8/60 Wholly within ML 430

*10/12/59 - 28/6/72 Partly within SPL 58, balance within SPL 59

*2/9/69 - 5/2/80 Partly within SPL 221, balance within SPL 222

*2/9/96 - 1/3/98 lot 8610 wholly within CLT 1132

Area 114. LOT 8072

Unalienated Crown land

*1/7/49 - 29/8/60 Wholly within ML 430

*10/12/59 - 20/6/72 Wholly within SPL 59

*2/9/69 - 5/2/80 Wholly within SPL 222

Area 115. LOT 8073

Unalienated Crown land

*1/7/49 - 29/8/60 Wholly within ML 430

*10/12/59 - 20/6/72 Wholly within SPL 59

*2/9/69 - 5/2/80 Wholly within SPL 222

Area 116. LOT 8074

Unalienated Crown land

Area 117. LOT 8075

Unalienated Crown land

Area 118. LOT 8076

Unalienated Crown land

*1/7/50 - 10/5/65 Partly within ML 442

Area 119. LOT 8077

Unalienated Crown land

*1/7/50 - 10/5/65 Partly within ML 442

Area 120. LOT 8078

Unalienated Crown land (Occupation Licence 3116)

Area 121. LOT 8079

Unalienated Crown land

Area 122. LOT 8080

Unalienated Crown land

*1/7/48 - 21/5/56 Partly within ML 394

s 47B applies

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

Unalienated Crown land.

*1/7/48 - 21/5/56 Wholly within ML 394

*1/10/94 - 30/9/98 lot 8712 wholly within CLT 1136

s 47B applies

Area 124. LOT 8082

Unalienated Crown land

Area 125. LOT 8083

Unalienated Crown

Area 126. LOT 8086

Unalienated Crown land

Area 127. LOT 8087

Unalienated Crown land

Area 128. LOT 8088

Unalienated Crown land

Area 129. LOT 8089

Unalienated Crown land

Area 130. LOT 8090

Unalienated Crown land

Area 131. LOT 8091

Unalienated Crown land

Area 132. LOT 8092

Unalienated Crown land

Area 133. LOT 8093

Unalienated Crown land

* Public work (part)

Area 134. LOT 8097

Unalienated Crown land

Area 135. LOT 8098

Unalienated Crown land

*1/7/40 - 12/7/55 Partly within ALs 499-504, 514, 515 and 522

s 47B applies

Area 136. LOT 8099

Unalienated Crown land

Area 137. LOT 8100

Unalienated Crown land

Area 138. LOT 8101

Unalienated Crown land

*1/7/50 - 30/6/71 Partly within ML 456

*1/7/52 - 30/6/71 Partly within ML 482

s 47B applies

Area 139. LOT 8102

Unalienated Crown land (Occupation Licence 3102)

*1/7/52 - 30/6/71 Partly within ML 482

s 47B applies

Area 140. LOT 8103

Unalienated Crown land

*1/7/52 - 30/6/71 Partly within ML 482

s 47B applies

Area 141. LOT 8104

Unalienated Crown land

*1/1/20 - 31/12/40 Partly within ML 38

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

Unalienated Crown land

*1/1/20 - 31/12/40 Partly within ML 38

s 47B applies

Area 143. LOT 8106

Unalienated Crown land

*1/7/52 - 30/6/71 Wholly within ML 482

s 47B applies

Area 144. LOT 8107

Unalienated Crown land

*1/7/50 - 30/6/71 Partly within ML 456

*1/7/52 - 30/6/71 Partly within ML 482

s 47B applies

Area 145. LOT 8108

Unalienated Crown land

*1/7/52 - 30/6/71 Partly within ML 482

* Public work (part)

Area 146. LOT 8109

Unalienated Crown land

*1/7/52 - 30/6/71 Partly within ML 482

s 47B applies

Area 147. LOT 8110

Unalienated Crown land

Area 148. LOT 8111

Unalienated Crown land

Area 149. LOT 8112

Unalienated Crown land

Area 150. LOT 8113

Unalienated Crown land

Area 151. LOT 8114

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

Area 152. LOT 8115

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

*1/7/54 - 30/6/75 Partly within ML 503

s 47B applies

Area 153. LOT 8116

Unalienated Crown land

*1/7/54 - 30/6/75 Wholly within ML 503

s 47B applies

Area 154. LOT 8117

Unalienated Crown land

Partly within an area declared a protected area under Territory Parks and Wildlife Conservation Act (Alice Springs Sewerage Ponds)

*1/7/54 - 30/6/75 Partly within ML 503

s 47B applies

Area 155. LOT 8118

Unalienated Crown land

Partly within an area declared a protected area under Territory Parks and Wildlife Conservation Act (Alice Springs Sewerage Ponds)

*1/7/54 - 21/6/75 Partly within ML 503

s 47B applies

Area 156. LOT 8119

Unalienated Crown land

*1/7/50 - 9/4/65 Partly within ML 443

Area 157. LOT 8120

Unalienated Crown land used as an energy supply easement

*30/10/60 - 24/6/83 Wholly within SPL 82

*27/3/83 Partly within CLT 101

Area 158. LOT 8121

Unalienated Crown land

*30/10/60 - 24/6/83 Wholly within SPL 82

*27/3/83 Partly within CLT 101

Area 159. LOT 8122

Unalienated Crown land

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

Area 160. LOT 8123

Unalienated Crown land

*14/3/86 - 16/4/86 Wholly within CLT 550

Area 161. LOT 8169

Unalienated Crown land

Area 162. LOT 8170

Unalienated Crown land

Area 163. LOT 8171

Unalienated Crown land

Area 164. LOT 8239

On 1/3/95 lot 8239 was amalgamated with lot 2655 to form

a new lot 8542

*28/12/95 Freehold title granted to Airservices Australia.

Area 165. LOT 8240

Unalienated Crown land

Area 166. LOT 8287

Unalienated Crown land

Area 167. LOT 8288

Unalienated Crown land (Occupation Licence 3122 over part)

*1/7/43 - 14/9/65 Partly within ML 271

s 47B applies

Area 168. LOT 8391

Unalienated Crown land set aside for extension to garbage dump

NOTE 1: The extent of the land which is subject to the application in area 33 is limited to that area of land which is satisfactory to the claimants to ensure the protection of the registered sacred site situated on that land.

NOTE 2: The extent of the land which is subject to the application in area 36 is limited to that area of land which is satisfactory to the claimants to ensure the protection of the registered sacred site situated on that land.

NOTE 3: The native title rights claimed over areas 77, 78, 79, 84 and 85 are such that they will not interfere with the current usage of that land as unlined storm water channelling.

NOTE 4: The native title rights claimed over areas 81, 82, and 104 are such that they will not interfere with the two retardation dams on that land.

I certify that this and the preceding

179 pages are a true copy of the

Reasons for Judgment of the

Honourable Justice Olney.

Executive Assistant

Dated: 9 September 1999

Counsel for the applicants: Mr B. Keon-Cohen QC and later

Mr J. Basten QC with (in each case)

Mr R. Howie

Solicitor for the applicants: Mr C. Athanasiou, (Native Title Unit,

Central Land Council).

Counsel for the first respondent: Mr T. Pauling QC (Solicitor-General for the Northern Territory) with Ms R. Webb and Mr P. Walsh

Solicitor for the first respondent: Solicitor for the Northern Territory

The other respondents did not appear

Heard (at Alice Springs):

1 - 4, 7 - 11, 14 - 18, 21 - 23 July 1997

9 - 13, 16 - 19 February 1998

2 - 6 March 1998, 26 - 27 October 1998

8 - 9 February 1999.

Date of Judgment: 9 September 1999