Mansfield J
In this matter the Court considered whether the establishment of self-government of the Northern Territory, the establishment of the Kakadu National Park and the establishment and development of the Jabiru Township extinguished the native title rights of the Mirarr people in the area of the Jabiru Township and its immediate surrounds (the Jabiru land) located inside Kakadu National Park in central northern Australia.
The respondents included the Northern Territory Government, the Jabiru Town Development (JTD) Authority, the Commonwealth, the Director of National Parks and Wildlife and the Energy Resources of Australia Ltd.
The parties agreed that the Mirarr People held exclusive native title rights and interests in the Jabiru land but exclusive native title had been extinguished as a result of pastoral leases granted in the nineteenth century. The Court was asked to determine whether any of the executive or legislative acts had extinguished the Mirarr People's non-exclusive native title rights.
The Pastoral Leases and Grazing Licences
The parties agreed that some acts were not inconsistent with non-exclusive native title rights and interests. These were the grant of pastoral leases and grazing licences, the 1972 declaration of a wildlife sanctuary over land in the southern part of Jabiru, and the grant of licences to the JTD Authority. Furthermore, Mansfield J found that the proclamation of Kakadu National Park in 1979 and its vesting in the Director of National Parks and Wildlife was not inconsistent with the exercise of non-exclusive native title rights.
However, the extent of extinguishment resulting from a number of other acts was more contentious, including the grant of an Occupation (Development) Licence (ODL) in July 1965 to Mudginberri Station Ltd (Mudginberri), the Commonwealth acquisition of territory upon Northern Territory self-government in July 1978, a 40 year lease granted to the JTD Authority in June 1981, subsequent sub-leases granted by the JTD Authority in July 1981, and the construction of various works in the Township.
The Occupation (Development) Licence
Mansfield J rejected the contention that all occupation licences necessarily conferred rights of exclusive possession. His Honour found that the ODL granted a qualified right to exclude persons from the licensed area where that was required for the licensed activities but did not authorise the licensee to exclude any person from being on the land. There was therefore no entitlement to exclude any Aboriginal person from exercising native title rights under the common law. His Honour considered the applicability of the Validation (Native Title) Act 1994 (NT) (VNTA) and Native Title Act 1993 (Cth) (NTA). Under s 9H of the VNTA, any previous exclusive possession act attributable to the Territory extinguishes any native title over that land. However, His Honour found that the ODL was not a previous exclusive possession act as defined by s 23B(2) of the NTA as the ODL was not a ‘lease’ within the s 242 definition in the NTA.
His Honour therefore held that the grant of the ODL did not extinguish non-exclusive native title rights.
Commonwealth acquisition upon self-government
In 1977 the Commonwealth government decided to create Kakadu National Park, which included the Jabiru land. At the same time it also decided that the Northern Terity should be made a 'self-governing' territory of the Commonwealth but the Commonwealth would acquire (or retain) the land that was to become the Kakadu National Park.
The respondents argued that the Commonwealth obtained an estate in fee simple upon acquisition of the Jabiru land and this was inconsistent with the continued existence of non-exclusive native title.
Mansfield J found that the use of the words ‘fee simple’ in a gazettal notice concerning the Jabiru land did not necessarily convey a grant of that type. Instead, His Honour concluded that the bare radical title to the Jabiru land held by the Commonwealth prior to 1 July 1978 was retained after the commencement of Northern Territory self-government and the gazettal notice should be construed as conferring only a radical title and it was not necessary for the Commonwealth to acquire an estate in fee simple over the entire future Kakadu National Park in order to establish the Jabiru Township.
Mansfield J therefore held that the Commonwealth acquisition following self-government did not extinguish the Mirarr People's non-exclusive native title rights.
Grant of Licences to JTD Authority
After the proclamation of Kakadu National Park and consequent vesting in the Director of National Parks and Wildlife the Director granted 29 licences to the JTD Authority between 14 June 1979 and 2 April 1981.
These licences authorised a wide range of works on the relevant land, such as the construction of roadworks and telecommunication towers, the undertaking of earthworks, and the installation of electrical reticulation.
All parties agreed that the grant of these licences had no effect upon the non-exclusive native title rights. However, the construction of works pursuant to these licences was contended to have extinguished native title (see consideration of public works below)
Jabiru Town Development Authority lease
While all the parties agreed that the grant of a lease to the JTD over a substantial part of the Jabiru land for 40 years (Township Lease) did not extinguish the non-exclusive native title rights at common law, the Northern Territory respondents contended that it extinguished the non-exclusive native title rights under the NTA. They argued that the grant was a ‘community purposes lease’ and was therefore a previous exclusive possession act under s 23B(2)(c)(vi) of the NTA.
Mansfield J found that the grant was not a ‘community purposes lease’, as town leases do not provide a common benefit but merely enable a community to be established, which can then be subleased for purposes that may or may not be identifiable with community purposes.
His Honour found that the s 23B(9B) and (9C) of the NTA excluded the Township Lease from the definition of a previous exclusive possession act for the purposes of s 23B of the NTA and was not inconsistent with the continued exercise of the non-exclusive native title rights.
Grant of Sub-leases by JTD Authority
The Township Lease granted from the Director to the JTD Authority commenced on 1 July 1981. On that day, sub-leases granted by the JTD Authority to other entities also commenced. Over the next 15 years or so, many more such sub-leases were made to Crown entities, in particular the Commonwealth and the NT Housing Commission. Other sub-leases were granted to non-Crown entities, in particular ERA, but also businesses, churches, and other entities.
His Honour accepted the Applicant’s submission that the JTD Authority only had the power to grant a sub-lease subject to native title. As those rights were not extinguished by the township lease, under common law the native title rights were not extinguished.
The Respondents' argued that the sub-leases were past exclusive possession acts within s 23B of the NTA or, in the alternative, a category D past act within s 232 NTA and thus, the non-extinguishment principle applies, so that the non-exclusive native title rights are not extinguished, but are wholly ineffective until such time as the sub-leases expire: NTA, s 238(3).
Mansfield J concluded that sub-leases to non-Crown entities are previous exclusive possession acts which had the effect of extinguishing the non-exclusive native title over the affected land under s 9M of the VNTA.
His Honour found that the sub-leases granted to Crown entities were not previous exclusive possession acts under s 23B(9C) of the NTA. The parties agreed that they were Category D past or intermediate period acts. As the non-extinguishment principle applies under ss 8 and 9E of the VNTA His Honour found that non-exclusive native title rights were not extinguished over land subject to the Crown sub-leases, but are rendered ineffective until the sub-leases ends.
Construction of public works
Finally, regarding the construction of works undertaken to build the Township of Jabiru, Mansfield J considered whether the works were ‘public works’ under the NTA. A number of the works were agreed upon between the parties to be public works including roads, bores and major earthworks, and it was accepted that these extinguished native title rights. However, the Applicant contended that a number of buildings and structures were not fixtures as there was no intention of permanence, and were therefore not ‘public works’ under s 253 of the NTA.
Mansfield J accepted that in determining whether an item was a fixture, the terms of the lease under which it was affixed could be examined to determine whether the intention was that the item was affixed for the better enjoyment of that item and not the land. However after considering the clauses of the Township lease, his Honour found that the relevant objects were intended to be for the better enjoyment of the land, and were therefore fixtures and ‘public works’ within s 253. Mansfield J concluded that, with the exception of five lots explained at [398], most of the public works extinguished native title as they were previous exclusion possession acts.
Orders
The Court determined that the native title rights of the Mirarr People over the Jabiru Township:
have been extinguished over areas the subject of subleases granted by the Jabiru Town Development Authority to non-Crown entities
have been suppressed by reason of s 238 of the NTA to the extent that they are over areas which are the subject of subleases granted by the Jabiru Town Development Authority to Crown entities; and
have been extinguished by the extensive public works carried on within the claim area by 23 December 1996 (except to the extent that the areas comprise:
(i) the underground water line to the Kakadu National Park headquarters;
(ii) Lot 2321;
(iii) The Magela Creek sewage pipeline;
(iv) Lot 2371 save for the area of 7 hectares adjacent to the Manaburduma Jabiru Town Camp.
The applicant has leave to apply to have certain lots removed from adjacent land in relation to Jabiru Drive and Arnhem Highway.