White J
In this matter the Court considered various applications for determinations of native title over several pastoral leases in the Northern Territory. The parties had agreed on most of the terms of the determination but disagreed on four issues. The Court was asked to determine those matters on the basis that, once determined, each application will proceed to a consent determination.
There were two groups of applications. The first, the Minyerri Subgroup, comprised 8 claims. The second group, the Banka Banka Subgroup, comprised 7 claims.
The Northern Territory of Australia was the 1st respondent to each action. Various pastoral and mining interests were respondents. The Northern Territory Cattlemen’s Association (the NTCA) and Jam Pastoral Pty were granted leave to intervene in all of the Minyerri matters. Other pastoral, oil and gas and mining interests did not wish to participate in the hearing concerning the disputed matters.
The Central Land Council (NLC) and Ngalyia Aboriginal Corporation RNTBC were granted leave to intervene in the hearing.
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 the proposed determinations.
The parties had generally agreed on the form of the determinations proposed but the Applicants disagreed with the Respondents proposal to include a clause concerning:
Whether a reservation of a liberty to apply should be included and, if so, its scope and wording;
The wording with respect to the exclusion of a right to take animals which are the private or personal property of another;
Whether the determinations should include a non-exhaustive list of activities permitted by the native title rights and interests and if so, whether, and in what terms, the activity with respect to the lighting of fires should be expressed; and
The manner in which the other interests to which s 225(c) of the Native Title Act 1993 (Cth) (NTA) refers are to be expressed
The Court addressed each matter separately.
Issue 2 - the animals
The Applicants, the Northern Territory and Lexcray, a pastoral lease holder, wanted to use the following formulation:
“the native title rights and interests do not confer on the native title holders…resources that are the private or personal property of another, including but not limited to: animals, including stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animals, that are the private or personal property of another...”
The Pastoral Interests proposed the clause be in a slightly different form:
“animals that are the private property of another, including stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animal...”
The Court noted that the difference between the parties' formulations was minor. The Applicants wanted the determinations to recognise that there may be some animals present on the area of a pastoral lease in which they have an interest. Wild native animals are an example.
The Court was satisfied that the formulation proposed by the Applicants, the Northern Territory and Lexcray indicates that the native title rights and interests will not include the right to access or take animals which are the private or personal property of another and those animals include stock within the meaning of the Pastoral Land Act 1992 (NT).
The Court concluded that this formulation is appropriate and will be adopted.
Issue 3 - list of activities
This issue concerned the form of expression of the native title rights and interests (NTRI) in the determinations. In particular, the Respondents proposed an additional clause which provided a non-exhaustive lists of activities permitted by the NTRI holders.Lexcray also proposed that the list include some additional words (underlined):
"light fires on the land and waters for domestic purposes and not for the clearance of vegetation."
The Applicants opposed including a list of the activities as unnecessary or inappropriate.
The Court considered 2 issues in relation to this dispute:
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.
Should a non-exhaustive list of activities be included?
The Court considered the combined effect of ss 94A, 223 and 225 of the NTA is that a determination of native title should contain not only the matters specified in s 225 but also the “details” of the nature and extent of the NTRI in the determination area. Importantly, the Court noted that it is details of the NTRI which are to be specified: not details of the activities which native title holders may engage in in the exercise of those NTRI.
After reviewing the NTA provisions and case law the Court concluded it was preferable for NTRI in determinations of the present kind to be expressed by reference to the activities which may be conducted as of right on, or in relation to, the land or waters.
Although, the burden of showing the appropriateness of the inclusion of the non-exhaustive list fell on the Respondents the Court concluded that the Respondents had shown that the inclusion of the list of “non-limiting and non-exhaustive” rights was likely to have some advantage.
The Court therefore held that the determination should include the non-exhaustive list proposed by the Respondents.
The lighting of fires issue
The Northern Territory proposed that the determination authorise estate group members to “light fires on the land and waters” whereas Lexcray sought the non-exhaustive expression of this right to indicate that it is available for “domestic purposes and not for clearing vegetation.”
The Pastoral Interests’ proposal did not include a sub-clause on the lighting of fires in their formulation. The Court noted that there was no evidence to support the conclusion that the right to light fires should be more generally expressed and the formulation proposed by Lexcray. Accordingly, the right to light fires would be expressed in the form proposed by Lexcray.
Issue 4 -other interests
There were a number of differences between the parties about the way the proposed determinations should specify the “nature and extent of other interests in relation to the determination area.”
The Applicants proposed that the 'other interests' be identified by reference to relevant portions and pastoral lease numbers. The Respondents proposed additional 'interests', primarily concerning pastoral homesteads and improvements.
Lexcray submitted that the grant of Pastoral Lease No. 526 and the erection of improvements, including the homestead, extinguished native title. The submission was rejected as inconsistent with other aspects of the proposed consent determination and existing legal authorities.
The Court found that the Applicants' proposal is the appropriate formulation.
Issue 1 - the scope of the reserved liberty to apply
Each party proposed that the Court include a reservation of a liberty to apply for establishing 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 should be justified by the pastoralists. There was also disagreement between the parties about the wording (if it is to be included) which affects its scope.
Justice White noted that, given his conclusions on the Respondents’ position about the inclusion in the “other interests” clause, the reservation of liberty to apply was unnecessary and declined to include it in the proposed orders.
As 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 the schedule of areas of extinguishment this would be included in the Court’s orders.