Wilcox, Sackville, and Merkel JJ
Determination that native title exists over three Pastoral Leases.
This case concerns the issues that remained to be determined after the claimants successfully appealed to the Full Court but the case could not be remitted to the primary Judge as they had retired.
Connection
The parties submit that the relevant issue in relation to connection appears to be the relationship between responsibilities in relation to land and connection to that land. The Primary Judge had listed the rights and responsibilities of persons who are Nguraritja. The Full Court found that the traditional laws and customs confer rights and responsibilities and plainly constitute a 'connection'.
Extinguishment
There was an issue relating to the effect of three Pastoral Leases over the claim area. The effect of the grant of these leases on native title rights and interests must be determined by reference to s 36I of the Native Title Act 1994 (SA), the counterpart to s 23G of the NTA. This is because the grants of the leases were previous non-exclusive possession acts attributable to South Australia. Section 36I(1)(b)(i) of the NTA (SA) confirms the extinguishment of native title rights and interests effected by a non-exclusive possession act under the general law.
As was said in Western Australia v Ward [2002] HCA 28, the grant of a right (in this case to erect or construct improvements) carries with it those rights necessary for its meaningful exercise (at [308]). On this basis, the native title rights and interests are extinguished over the land on which the improvements are constructed and any adjacent land the use of which is reasonably necessary for or incidental to the operation or enjoyment of the improvements.