White J
In this matter the parties to applications for determinations of native title over several pastoral leases in the Northern Territory had agreed on most of the terms for the determinations but disagreed on four principal matters.
The Court was asked to determine those matters on the basis that, once determined, each application will proceed to a consent determination.
Parties
There were two groups of applications. The first, known as the Minyerri Subgroup, comprised of 8 actions. The second group, known as the Banka Banka Subgroup, comprised of 7 actions.
The Northern Territory of Australia was the 1st respondent to each action.
Lexcray Pty Ltd (Lexcray), the holder of a pastoral lease, was the 2nd respondent in one of the Minyerri Subgroup matters. Further, the Northern Territory Cattlemen’s Association (the NTCA) and Jam Pastoral Pty Ltd were granted leave to intervene in all of the Minyerri matters. Maximus No 82 Pty Ltd (Maximus), a respondent in a number of Minyerri claims, also intervened in other Minyerri Subgroups matters. These are collectively referred to as the “Pastoral Interests.”
Various other respondents did not seek to be heard on the matters that had not been agreed.
The Central Land Council (NLC) and Ngalyia Aboriginal Corporation RNTBC were granted leave to intervene in the hearing (CLC Intervenors).
Background
There had been extensive discussions between the NLC on behalf of each of the applicants, the Northern Territory, the NTCA and some of the individual pastoral lease holders regarding proposed determinations.
The respondents wanted to include a clause (cl 14) setting out a non-exhaustive list of activities authorised by the native title rights and interests determined in each application. The applicants opposed this clause.
The differences between the parties were:
Whether a reservation of a liberty to apply should be included in cl 5(a) and, if so, its scope and wording;
The wording of cl 11(c)(ii)C regarding the exclusion of a right to take animals which are the private or personal property of another;
Whether cl 14 of the determination should include a non-exhaustive list of activities permitted by the native title rights and interests and if so, whether, and in what terms, the activity regarding the lighting of fires should be expressed; and
The manner in which the other interests to which s 225(c) of the Native Title Act 1993 (Cth) (NTA) refers to are expressed.
The Court addressed each matter separately.
The animals issue - Clause 11(c)
There was disagreement over the formulation of Cl 11(c)(ii)C. The Court considered the differences minor. The applicants wanted there to be recognition in the determinations that there may be some animals present on the area of a pastoral lease that they have an interest in. Wild animals were an example.
The applicants wanted the proposed determinations to make this plain by indicating that the exclusion of their interest in animal resources is limited to those which are the private or personal property of another. At the same time, they recognise that their native title rights and interests are not to include rights with respect to “stock” as defined in the Pastoral Land Act 1992 (NT) and the progeny of such stock.
The Court favoured the wording proposed by the applicants, the Northern Territory and Lexcray at it indicates that the native title rights and interests will not include the right to access or take animals which are private or personal property of another and those animals include stock within the meaning of the Pastoral Land Act 1992 (NT) and their progeny.
The list of activities issue - Cl 14
This issue concerned the form of expression of the native title rights and interests (NTRI) in the determinations. The respondents proposed an additional clause 14 containing a non-exhaustive list of activities permitted by the NTRI holders. Lexray wanted some additional words included regarding the lighting of fires for domestic purposes and not for the clearance of vegetation.
The applicants opposed the inclusion of a list of activities of the kind proposed by the respondents as unnecessary and creates potential for confusion.
The Court identified two principal issues with respect to cl 14:
Whether the determination should include a non-exhaustive list of activities encompassed by the NTRI and,
Whether, and in what terms, the activity with respect to the lighting of fires is to be expressed.
Issue (i): Non-exhaustive list
After considering relevant case law the Court concluded that the inclusion of a 'non-limiting and non-exhaustive" rights is likely to have some advantages by making it plain that there is agreement that the listed activities are part of the NTRI and will limit the potential for future disputes about those activities. The Court also considered that there are no real disadvantages to the applicants by including the proposed cl 14.
The Court concluded that the determination should include the proposed cl 14.
Issue (ii): The lighting of fires issue
The Court accepted cl 14(d) in the form proposed by Lexcray and preferred by the Pastoral Interests. There was no evidence to support the conclusion that the non-exhaustive expression of the right to light fires should be more generally expressed.
The "other interests" issue - cl 15
The applicants proposed that the other interests should be identified by reference only to the relevant portions and pastoral lease numbers. The respondents, on the other hand, proposed the inclusion of additional “interests”, or incidents of such interests, in the specification of the “other interests”. The CLC Interveners support the applicants’ position.
Much of the debate at the hearing concerned the pastoral homestead and improvements. Lexray submitted that its rights under its pastoral lease to erect improvements and especially a homestead and other improvements including sheds, stockyards and bores extinguished native title.
The Court did not accept Lexray's submission that its right under a non-exclusive pastoral lease to erect improvements has extinguished native title.
It was held cl 15(a) should be in the form proposed by the applicants.
The scope of the reserved liability to apply issue - cl 5(a)
Each of the parties proposed that the Court include in the determination orders a reservation of a liberty to the parties to apply for the establishing of the precise location and boundaries of the area necessary for, or incidental to, the use of pastoral homesteads and improvements. However, the applicants submitted that the need for the reservation of the liberty to apply should be justified by the pastoralists.
The Court concluded that the reservation was unnecessary given its conclusion about "the other interests' clause of the rights of a pastoral lessee to the use of any pastoral homestead or improvements in any adjacent land or waters necessary for or incidental to that use.
The parties agreed that there should be a reservation of a liberty to apply to establish the precise location and boundaries of “public works and adjacent land and waters identified in relation to any part or parts of the Determination Area” identified in Schedule D (the schedule identifying the areas of extinguishment). The Court determined that this will be included in the Court’s orders.
Orders
The parties in each subgroup confer with a view to providing revised minutes of the Determinations to reflect the rulings in these reasons for judgment.
The matters in each subgroup are referred to a Case Management Conference before a Registrar at a date and time to be fixed by the Registrar with a view to finalising the Determinations and the arrangements for the Determinations.
There be liberty to the parties to apply.