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Editors --- "Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia - [2001] AILR 30 - Case Summary" [2001] AUIndigLawRpr 30; (2001) 6(3) Australian Indigenous Law Reporter 21

Court and Tribunal Decisions - Australia

Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia

Federal Court of Australia (Olney J)

25 July 2000

[2000] FCA 923

Native title — claimant application for determination of native title — description of area of land and waters claimed — inconsistency between map and metes and bounds description

Native title — recognition by the common law — rights to the waters of tidal rivers

Native title — previous exclusive possession act — commercial lease — exclusive possession lease — scheduled interest

Words and phrases — meaning of statutory authority — validity of grant ‘apart from this Act’

Facts:

An application was made pursuant to s 13(1)(a) of the Native Title Act 1993 (Cth) for the determination of native title in respect of a large area of land and waters in the Northern Territory.

The area covered by the application (‘the claim area’) is in the Roper River region of the Northern Territory. It includes most of the land previously known as St Vidgeon Station. Specifically, the area covered by the application included:

1. All land and waters contained in NT Portion 819 other than the area of land that was formerly the subject of agricultural lease 153.
2. The beds, banks and waters of the Roper River from its mouth at Port Roper westwards to the point at which the border between NT Portion 819 and NT Portion 2632 intersects with the Roper River. This point is near Roper Bar. The mouth of the Roper River is to be taken as the line formed across the river by the Australian Terrestrial Baseline.
3. The beds, banks and waters of the segment of the Cox River that adjoins NT Portion 819.
4. The beds, banks and waters of the segment of the Limmen Bight River that adjoins NT Portion 3476 and NT Portion 819.

Section 113 of the Crown Lands Act 1931 (NT) enabled the Minister, by notice in the Government Gazette, to declare routes, not exceeding 1610 metres in width, through Crown lands or reserved or dedicated land, whether or not that land is held under licence or lease granted under any Act, to be routes for the passage of travelling stock. By notice published in the Northern Territory Government Gazette in 1986 the Minister for Lands, declared pursuant to s 113 a number of areas to be routes for the passage of travelling stock.

By instrument dated 5 July 1985 the Northern Territory of Australia granted to the Northern Territory Development Land Corporation a Crown lease in perpetuity of ‘all that land being Northern Territory Portion 819 containing an area of six hundred and seventy thousand hectares or thereabouts’. The lease is known as Crown Lease Perpetual 346 (CLP 346) and was registered.

There was also a dispute as to whether the boundary of the claimed area included certain parts of the bed and banks of the Roper River and the adjoining stock route. This dispute arose from the fact that there is an inconsistency between the description of the claim area as expressed in the application and the boundary of the claim area shown on the map accompanying the application (‘the application map’).

Held:

1. There is substantial evidence before the Court that suggests that an identifiable community or organised society of indigenous inhabitants occupied, were present upon and used the claim area at the time of first non-Aboriginal contact. However, it is the nature and extent of the native title rights and interests that exist at the time the determination is made over the area in question that must find expression in the Court’s determination: at paras [61], [72] of the judgment.

2. A very precise definition of the claim area is essential for the purpose of giving effect to the Native Title Act. Reading the application as a whole, it is clear that the applicants’ intention was to include both the stock route and the adjacent river in the area of land and waters covered by the application. The notation on the application map indicating that the boundary follows the southern border of Urapunga Station is a decisive indication of the applicants’ intention. Another indication of the applicants’ intention is the express exclusion of NT Portion 1185 from the claim area (being a small area situated within the stock route held under a special purposes lease). If the stock route was not intended to be part of the claim area it would have been unnecessary to make any reference to NT Portion 1185. In these circumstances the stock route area and the beds and banks of the adjacent part of the Roper River are treated as being within the area of land and waters covered by the application: at paras [39], [40].

3. If the process of succession known as incorporation truly reflects a process consistent with the traditional laws and customs of the land holding group, the prevalence or otherwise of the practice is not relevant: at para [66].

4. In accordance with Aboriginal traditional laws and customs, the rights enjoyed by the original inhabitants prior to colonisation were probably in the nature of exclusive rights, but it is necessary to have regard to the common law principles and to the general question of extinguishment of native title rights before any assessment can be made of the current native title rights and interests of the claimant groups in relation to the claim area: at para [76].

5. Division 2B of Pt 2 of the Native Title Act, which deals with extinguishments of native title rights, has application in the Northern Territory by operation of the Validation (Native Title) Act (NT) (the Validation Act). The relevant sections and schedule are repeated in the Northern Territory legislation. A ‘previous exclusive possession act’ as defined under s 23B, extinguishes native title: at paras [78], [79].

6. One of the criteria for a previous exclusive possession act is that it is valid (see s 23B(2)(a) of the Native Title Act). CLP 346 is a valid grant of a lease of the Territory’s interest in the land to which it related as at the date of its execution on behalf of the Minister. An act is also a previous exclusive possession act under s 23B(2)(a) if it is a commercial lease that is neither an agricultural lease nor a pastoral lease. There is no suggestion that CLP 346 is either a mining lease, an agricultural lease or a pastoral lease. CLP 346 was granted for the purpose of carrying out the functions of the Northern Territory Development Corporation. None of the functions of the Development Corporation appear to contemplate it engaging in business or commercial purposes and activities. Therefore, CLP 346 cannot properly be regarded as a lease granted to permit the lessee to carry out business or commercial purposes and so be regarded as a commercial lease within the meaning of s 246(1) of the Native Title Act: at para [92] .

7. The legislative history of the Northern Territory Development Corporation is not such as to lead to the conclusion that a lease granted for the purpose of carrying out the functions of that body in accordance with the Territory Development Act is a lease ‘that permits the lessee to use the land or waters covered by the lease solely or primarily for business or commercial purposes’. The ordinary meaning of commercial suggests an involvement in business or trade: at paras [90], [92], [93].

8. For an act to be a previous exclusive possession act, it must also consist of the granting or vesting of any of the listed interests in s 23B(2)(c). One such interest is an exclusive agricultural lease. Given the overall context in which the CLP 346 was granted, namely the large area granted, its remoteness and the presence of a substantial Aboriginal population, it is not possible to discern an intention to confer on the lessee a right of exclusive possession: at para [100].

9. Having regard to the purpose for which CLP 346 was granted and the function of the Northern Territory Development Corporation as expressed in s 15 of the Territory Development Act as it applied at the time of the grant, the lease permits the lessee to use the land and waters covered by the lease solely or primarily for the purpose of industrial development and is therefore a scheduled interest. This being so, subject to s 23B(9C), CLP 346 comes within the ambit of the definition of previous exclusive possession act under s 23B(2)(c) of the Native Title Act: at para [102].

10. The effect of s 23B(9C) is to deny a grant of an interest in land the status of a previous exclusive possession act if it is a grant of an interest in relation to land or waters to ‘the Crown in any capacity or a statutory authority’ unless apart from the Native Title Act, the grant extinguishes native title in relation to the land or waters. For the purposes of s 23B(9C), the Land Corporation is covered either by the ordinary meaning of statutory authority or by the definition. CLP 346 was granted subsequent to the passing of the Racial Discrimination Act 1975 (Cth) and but for the validating provisions of the Native Title Act and the Validation Act, it would not be valid. Further, it not being an exclusive possession lease, it would not, apart from any statutory provision, have the effect of extinguishing native title. Therefore, the effect of s 23B(9C) is to deny CLP 346 the status of a previous exclusive possession act. Accordingly s 23C has no application to CLP 346: at paras [103]–[107].

11. As CLP 346 has been held to be valid, s 47B can have no application to the land covered by it, the whole of that land having been covered by a lease when the application was made (see s 47(1)(b)(i)). Accordingly, the extinguishing effect of prior interests in the land covered by CLP 346, notably the extinguishing of any prior exclusive rights of possession, occupation and use of the land, is unaffected. There is also no evidence to suggest that the areas in question were, at the time the application was made, occupied by one or more members of the native title claim group as required under s 47B(1)(c): at paras [138], [139].

12. The mere reservation of certain limited rights in favour of the Aboriginal inhabitants in pastoral leases does not evidence an intention to extinguish all other existing native title rights and interests. The pastoral lease reservations appear in some cases to extend rights to Aborigines who by tradition and custom would not have had rights in relation to the leased land. It is fair to say however, consistent with the reasoning of the majority in Wik Peoples v Queensland (1996) 187 CLR 1; (1997) 2 AILR 35, that the granting of a pastoral lease giving the lessee the right to enter upon, occupy and use the land for pastoral purposes would have the effect of extinguishing any exclusive rights of occupation, use and enjoyment that may otherwise have been an incident of the native title rights of the indigenous inhabitants of the land in question. Similarly, any traditional right to control access to the land would have been extinguished to the extent that the exercise of such rights would be inconsistent with corresponding rights enjoyed by the lessee or indeed by other Aborigines exercising a reserved right: at paras [111]–[113], [115].

13. The evidence discloses that land to both the north and the south of the section of the Roper River which is east of the eastern boundary of the land held under APL 9 was covered by two former pastoral leases namely PL 737 and PL 2151. The grant of PL 2151 extinguished any exclusive native title in relation to the Roper River downstream from the eastern boundary of APL 9. The portions of the Cox and Limmen Bight Rivers that are part of the claim area were formerly covered by either PL 2151 or PL 2105. From the evidence it is not possible to say with any precision exactly what part of these rivers fell within each lease but as the leases had a common boundary and were couched in similar terms (in particular insofar as both grants included water and water courses) the conclusion expressed as to the partial extinguishing effect of PL 2151 on part of the Roper River applies equally to the sections of the Cox and Limmen Bight Rivers in question: at paras [119], [121].

14. To the extent that the rivers within the claim area are tidal, the common law does not recognise any exclusive native title rights thereto. This is not a case of prior rights being extinguished but rather the non-recognition of such rights. Accordingly, s 47B has no application in relation to tidal rivers. If it be the case that part of the section of the Cox River which is within the claim area is not affected by the tide, the extinguishment of any exclusive native title rights to that part arising from the creation of a prior inconsistent interest, notably PL 2105, would not be affected by s 47B, there being no evidence of the occupation of that area by any member of the native title claim group when the application was made: at paras [139].

15. It is a matter of contention as to whether the setting aside of a road reserve of 100 metres extinguishes native title in respect of the whole of that area in circumstances where the actual road surface occupies only a fraction of the reserve. Although there can be no hard and fast rule applicable to all roads in every part of Australia, having regard to the nature of the physical environment in the remote areas of the Northern Territory, and the effect that weather conditions (particularly in the wet season) have on many roads in the region, necessitating on many occasions temporary diversions from the formed surface, it does not seem to be unreasonable that a 100 metre corridor be provided: at para [127] .

16. The construction of a road may give rise to the extinguishment of native title, when a road is for the purposes of the Native Title Act a public work. Sections 23B(7), 23C(2) and 253 of the Native Title Act applied: at paras [128], [129].

17. The portion of the claim area referred to as the stock route area was established by a Minister of the Crown in the right of the Northern Territory by declaration pursuant to s 113 of the Crown Lands Act published in the Northern Territory Government Gazette. The declaration of the stock route had not been revoked by 1 January 1994 and consequently the declaration of the stock route area as a route for the passage of travelling stock extinguished native title in relation to that area of land. Sections 15, 129 and 229(4) of the Native Title Act applied: at para [134].?