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Court and Tribunal Decisions - Australia
Federal Court of Australia (O’Loughlin J)
5 June 2001
Native title — recognition by common law and Native Title Act 1993 (Cth) — rights of exclusive possession to land that is part of proclaimed township — whether native title continues on Crown Land proclaimed as township but largely undeveloped
Native title — roads — extinguishment by ‘dedication’ of roads — statutory gazettal of roads
Native title — claimant groups — ‘adoption’ and ‘incorporation’ into claimant groups
The Ngalakan People claimed native title over a small area of land (‘the claim area’) on the southern bank of the Roper River in the Northern Territory. The claim area was described as being the land within the gazetted boundaries of the intended township of Urapunga (‘Urapunga’).
Urapunga was proclaimed and declared on 17 March 1887, pursuant to s 17 of the Northern Territory Crown Lands Consolidation Act 1882 (‘the Crown Lands Act’). By virtue of the proclamation and declaration, lands were set apart as the site for Urapunga and such lands thereby became reserved and dedicated town lands. Section 6 of the Crown Lands Act stated that until waste land had been surveyed and delineated in public maps in accordance with s 7, there could be no fee simple grants. Section 14 of the Crown Land Acts provided that the dedication in the public maps of any public roads shall be deemed to be a sufficient dedication to the public of such roads.
The survey of the Township consisted of 276 allotments that were arranged into blocks on a grid. Seven allotments were sold between 1889 and 1891. Each was by way of Land Grant of an estate in fee simple. No subsequent dealings with any of those seven allotments have been recorded but, as they were grants of estates in fee simple, the applicants have excluded them from their claim.
The applicants’ claim for a determination of native title extended over the remaining allotments together with the areas identified as gazetted roads and ‘Salisbury Square’.
1. A person can be regarded as a member of an Aboriginal group through forms of social recognition, such as adoption or incorporation. Incorporation is a much broader concept than adoption and could occur, for example, where a person is regarded as a member of the group as a result of ceremonial involvements or residence or skin affiliation. Lack of biological or adoptive descent does not create a problem in an application for a determination of native title if a particular person can show that he or she is a member of the claimant group by virtue of the traditional laws acknowledged and traditional customs observed by that group. The recency of the practice of incorporation is not of concern if incorporation is in accordance with the customs and traditions of the community: at paras [48]–[51] of the judgment.
2. It is necessary for the Court, if the evidence permits, to identify the claimants as a group or as a community. The dominant group does not consist of a broader regional community encompassing residents of the towns and settlements in the Roper River Region. Such an enlargement would allow for recent arrivals in the area who have little or no traditional connection with the claim area. The claim group is limited to those who are recognised by other members of the regional community as having core native title rights and interests in the claim area in accordance with the traditions and law of the regional community: at paras [53], [54].
3. The sale of several of the allotments in the Township meant that the surveyed roads abutting these allotments must have become public roads so that they might be used to gain access to the allotments (Permanent Trustee Company of New South Wales Ltd v Council of the Municipality of Campbelltown [1960] HCA 62; (1960) 105 CLR 401 applied). The usage of the allotments would be meaningless and valueless unless the occupants also had the benefit of the other roads in the subdivision so that they might use those other roads to access those parts of the roads that abut their allotments. Thus it can be concluded that all roads in the subdivision must carry the identification of public roads. Moreover, the legislative scheme contained in the Crown Lands Act included a procedure independent of common law principles relating to the constitution of land as public land that was calculated to confer upon the public a right of user of land as a public road. The relevant legislation did not impose any limitation on the persons who could use it or the manner in which it could be used (Fourmile v Selpam Pty Ltd [1998] FCA 67; (1997) 80 FCR 151 applied). The unrestricted right of the public to use and enjoy these public roads is so incompatible with native title as to extinguish it: at paras [33]–[47].
4. The expression ‘native title’ is not synonymous with, nor was it ever intended to be synonymous with the common law concept of ‘ownership’ (Yarmirr v Northern Territory of Australia (1998) 82 FCR 533; (1999) 4(2) AILR 61 followed). The use of the word ‘owner’ by the Aboriginal witnesses indicates control rather than claiming an interest akin to fee simple: at paras [56]–[59].
5. The absence of evidence of competing claims would not lead to an automatic determination of exclusive rights, but its absence, coupled with the evidence provided by the Aboriginal claimants leads to a conclusion in the circumstances of this case, that it would be appropriate to recognise exclusivity: at para [60].
1. In these proceedings the applicants, the Ngalakan People, claim native title over a small area of land (‘the claim area’) on the southern bank of the Roper River in the Northern Territory of Australia. The only respondent to the claim was the Northern Territory of Australia (‘the Territory’). The Roper River rises in the vicinity of Mataranka and flows, generally, in an easterly direction, emptying into the Gulf of Carpentaria. In its eastern extremity it becomes the southern boundary of Arnhem Land.
2. The claim area is in close proximity to the Roper Bar which was originally known as Leichhardt’s Bar. In its natural state, it was a rocky shelf in the bed of the river constituting a natural ford at low water and a partial barrier to the flow of water. The country is so flat and the Bar is so effective that the River is tidal and salty up to the Bar with fresh spring water upstream. The Bar has now been concreted to give a smoother travelling surface across the bed of the river.
3. The claim area, which is approximately 320 kilometres south east of Katherine, can be described (for convenience, although somewhat inaccurately) as being the land within the gazetted boundaries of the Township of Urapunga. The name Urapunga has been in European usage at least since the coming into existence of the township; Mr Stead, an anthropologist who is employed by the Northern Land Council (‘the NLC’), and who gave evidence on behalf of the applicants, was of the opinion that ‘Urapunga’ is probably an anglicised version of ‘Yutpundji’ which is the Ngalakan name that is used for the general area around the Bar.
4. The site of the intended township of Urapunga is bounded on the east, west and south by land that is now held in trust for the Ngalakan traditional owners; that occurred as a result of the recommendations of Toohey J sitting, in 1982, as the Aboriginal Land Rights Commissioner in the Yutpundji-Djindiwirritj (Roper Bar) Land Claim (‘the Roper Bar Land Claim’). The site of the intended township had been excluded from the Land Claim because of the provisions of subs 3(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (‘the Land Rights Act’). That section provides that unalienated Crown land means:
‘Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town.’
Toohey J noted in par 7 of his report that, as land in a town could not be claimed under the Land Rights Act, ‘the Town of Urapunga did not form part of the claim as finally presented’. It is reasonable to infer, as the applicants have submitted, and as I find, that if the claim area had been available for claim under the Land Rights Act, it too would have been the subject of a recommendation for a grant in that it would have formed part of the land that was the subject of the Commissioner’s recommendation. There is no reason to suppose that it would not have formed part of the land that was, in fact, the subject of a subsequent grant.
5. Across the Roper River to the north is the Urapunga Pastoral lease and to the north-east is the most southerly section of Arnhem Land. Arnhem Land is held in trust for the Aboriginal traditional owners under the Land Rights Act; the Urapunga pastoral lease, of which the witness, Peter Woods is the manager, is independently owned by Aboriginal interests but it is presently the subject of a claim under the Land Rights Act. The Wilton River joins the Roper from the north, a few kilometres downstream of the Bar and another tributary, the Hodgson, joins the Roper from the south further downstream again. The Roper Bar Store is a few kilometres to the south-east of the Bar.
6. The substantive application in this matter was accepted by the National Native Title Tribunal (‘the Tribunal’) on 28 September 1995 in accordance with subs 66(2) of the Native Title Act 1993 (‘the Act’) as then in force. On 4 December 1996, the President of the Tribunal directed the Registrar of that Tribunal to lodge the application with this Court for its decision. That direction followed a decision by a Deputy President of the Tribunal that there was ‘no possibility of the parties reaching agreement as to the terms of the determination of the Tribunal in relation to the application under s 73 of the Act’.
7. The parties have agreed that sovereignty in respect of the claim area was not acquired by the Crown until 1825. Governor Phillips’ earlier commissions only extended westward to meridian 135ºE and the claim area lies a short distance to the west of that meridian line. It was not until 16 July 1825, the date of Governor Darling’s Commission, that sovereignty was acquired over the claim area.
8. To establish native title, it is necessary for the applicants to establish that, at the time of sovereignty, there was an identifiable community or organised society of Aboriginals who possessed, occupied, used and enjoyed the claim area according to their traditional laws and customs: Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 51–52 per Brennan J, at 86 per Deane and Gaudron JJ and at 187 per Toohey J. Any claim to native title will depend upon the community’s presence on, and connection with, the land of which the claim area forms part. Presence on the land is not, however, to be equated with possession in the conventional or total sense of that word; there can still be a presence notwithstanding the existence of a nomadic lifestyle. As Lee J said in Ward v State of Western Australia [1998] FCA 1478; (1998) 159 ALR 483 at 501:
The survival of such a society may depend upon occupation that is sparse and wide-ranging. The ever changing locale of a nomadic community will not be inconsistent with occupancy for the purpose of that element of native title.
9. The claim area in this application forms part of the larger Ngalakan land — that is, land to which the Ngalakan language relates. The primary mythological ancestor (or Dreaming) for the land, of which the claim area forms part, is the Jardugal or the Plains Kangaroo. The applicants in these proceedings identify with the claim area and the land surrounding it at an estate level and, as such, at a level that is less than, but part of the Ngalakan level. In other words, there are a number of Ngalakan estates of which the claim area and its environs is one; the adjoining Quiet Snake country to the west is another.
10. The first recorded European contact with the Roper River and the land that is the subject of this application was Dr Ludwig Leichhardt’s 1845 expedition from Moreton Bay to Port Essington; it was he who named the river after John Roper, the member of his expedition who first came upon it. His party crossed the river at the Bar on 24 October 1845 and Leichhardt’s diary recorded on that occasion that there were numerous indigenous inhabitants in the region.
11. Several historical documents that were tendered in evidence [Exhibit A3] all pointed to the presence of a strong and vigorous community in the claim area from the days of the first contact with Europeans. Leichhardt was, of course, the first of those. He noted in his journal numerous observations of Aborigines. He saw them and their camps, their well beaten footpaths, the fresh burnings and fresh mussel-shells. He described the country as ‘well inhabited’. The applicants also tendered extracts from the private journal of one RC Patterson who, in 1871, was in charge of the construction of the northern end of the Overland Telegraph Line (‘the Line’). He, like Leichhardt, had numerous encounters with Aborigines in the claim area and in the vicinity of the Supply Depot which was about seven miles downstream. The following year, 1872, Alfred Giles recorded in his Exploring in the Seventies and the Construction of the Overland Telegraph Line that ‘the whole country was illuminated at night by native fires’. These are but some of several sources that all touched upon the same theme. One further source should be mentioned because of its attention to detail. In the early 1880’s Lindsay, a surveyor, had considerable contact with local Aborigines. He found them to be ‘very friendly’ and recorded a Roper vocabulary. He reported favourably on the country that he had surveyed and stated that the ‘whole country passed over is well suited for grazing purposes and a great deal of it fit for agriculture’ — prophecies that did not, however, come to pass. Some of Lindsay’s more notable observations were made on 15 August 1883 on the Wilton River:
... we came on the site of a very large native encampment, quite a quarter of a mile across. Framework of several large ‘humpies’, one having been 12 ft high; small enclosures, as if small game had been yarded and kept alive. The natives had excavated five holes in the red clay soil, three of which were oval; one I measured 18 ft long, 8 ft wide and 4 ft deep with the earth thrown up in a heap on one side; two were semi-circular, 3 ft deep and 3 ft across, with a diameter of 20 ft. the `humpies’ were of a superior description to anything I have seen in the Territory. This camp must have contained quite 500 natives, and have been the scene of some great festival, the corroboree, or dancing grounds, being numerous and well-worn.
About two miles north of the main camp there is the remains of another large camp, with a painted post 4 ft high, 9 in diameter, set firmly in the ground; also about twenty pieces of paperbark, each piece 3 ft long, and bound up with creepers. These pieces were then placed in the form of a star, with the inner ends embedded in the ground.
These evidences of an immense number of natives testify to the excellence of the country.
12. The first European settlement in the vicinity of the claim area occurred in 1871. Late that year a party was sent, via the Roper River, to the Bar to establish a Supply Depot for the provision of supplies and materials for the Line which was then in the course of being constructed. The Roper River is navigable to reasonably large vessels as far as the Bar. The first Depot was downstream from the Bar opposite the river’s junction with its tributary, the Wilton. In 1872 the Depot was shifted further downstream and a large settlement of about 300 people developed, most of whom were directly or indirectly engaged in the work of the Line. However, by the end of 1873, the Line had moved on and so had most of the workers. Only a small European community remained in the vicinity of the Bar and the Depot. The European population, apart from the work force for the Line in the early 1870s, has always been small. A significant population never eventuated. Originally, there was a store at the Bar that served drovers, prospectors and those who were either living in or travelling through the area. A Police Station was established in the vicinity of the claim area in 1890 and remained for almost 100 years; for many years it supplied rations to aged and infirm Aborigines. The Police Station was also a source of work for some of the local Aborigines. One of the senior claimants, Roy Golokurndu, for example, worked with the police as a tracker until he retired in 1980. Another senior claimant, Doreen Ponto worked as a domestic servant at the Station. Her father, Old Ponto, had also worked out of the Station as a tracker, as had Roy’s father. The number in the community that was centred on the Police Station varied; until the distribution of rations ceased in 1963 it ranged from thirty to forty people. In addition to the Police Station, a Mission was established on the north side of the river near the site of the present settlement at Ngukurr.
13. For a few years the Bar was a natural crossing for cattle on the stock route from Queensland to the Top End. In 1885, the first cattle station in the area was established. It was sited to the north of the Roper and its boundaries approximated the present boundaries of Urapunga Station. However, the use of the Bar diminished when another stock route to the south via Anthony’s Lagoon was opened up in the 1880’s. Nevertheless, it was during this period that the authorities became intent on establishing a township in the area.
14. The historical sources are sufficient, in my opinion, to justify a finding that the area, of which the claim area is part, was inhabited by a strong community of Aborigines in the 1870’s and the 1880’s. Furthermore, the quality of the countryside, including, most importantly, an assured and continuing supply of fresh water, suggests that what has been described in the journals of the early explorers would have also fairly reflected the state of affairs at the time of sovereignty. What is more, the Territory made it plain in its written submissions that it did not seek to pursue a contrary proposition: in fact, it accepted that there was evidence of a physical connection between Aboriginal people and the claim area over a long period. Nor, indeed, did the Territory dispute that the applicants are descended from the original inhabitants of the country in the sense that there is a ‘substantial degree of ancestral connection’ between them and the original inhabitants: see Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 at [379]. One reservation to that general concession related to the question of ‘incorporation’ but I will deal with that later in my reasons.
15. The historical material that was placed before the Court leaves little room for doubt. In the first place, the impact of European occupation, settlement and law on the general area, of which the claim area forms part, has been minimal. Secondly, at the time of sovereignty, the claim area was possessed, occupied, used and enjoyed by indigenous people who then enjoyed native title rights and interests. I will address at a later stage of these reasons whether that enjoyment now is, as the applicants have claimed, exclusive. However, the failure of the Township of Urapunga to develop, together with the absence of any pastoral or other lease entitling anyone to take possession of the claim area, have combined to mean that the land has enjoyed a somewhat unique and protected position. This has, in turn, promoted the proposition that the native title rights that have been claimed by the applicants, prima facie, give rise to an entitlement as against the whole world to the possession, occupation, use and enjoyment of the claim area.
16. In addition to the written and oral evidence of Professor Howard Morphy, the Director of the Centre for Cross Cultural Research at the Australian National University and Mr JJ Stead, the manager of the Northern Land Council’s anthropology branch, the applicants also tendered the reports of Ms Asche, Mr Graham and Ms Wells. None of these last mentioned experts were required for cross-examination and the Territory did not present any expert evidence. Messrs Morphy and Stead were subjected to some cross-examination but the greater part of the evidence was unchallenged.
17. The applicants tendered in evidence an anthropologist’s report that had been compiled by Wendy Asche, Robert Graham and Jeff Stead (‘the Asche report’). In Chapter 3 of that report (which deals with the Land Tenure System) they introduced the subject of the Dreamtime. What follows has been extracted from that report as its contents have been corroborated in all matters of substance by the various Aboriginal witnesses.
18. The applicants believe that the countryside and all physical attributes of the country are the result of the activities of certain powerful ancestral beings; these are generally known to Europeans as Dreamings, but the Aboriginal witnesses also used the term frequently and freely. These ancestral beings have given Aboriginal people their codes of moral, social, economic and religious life that, in its totality, has evolved into Aboriginal Law.
19. The Asche report discussed in some detail the subdivision of ancestral beings and living and deceased persons into moieties and semi-moieties. In the first instance, the world of the claimants is divided into two moieties — Yirritja and Duwa. Each moiety is then divided into semi-moieties. Each ancestral being is categorised and then each site that is created by that ancestral being is grouped in the same category. Thus all Dreamings, together with the land and all material phenomena — including sites, flora and fauna as well as the people — belong to one of the four semi-moieties or categories: Yirritja is divided into Burdal and Guyal; Duwa is divided into Mambali and Murrungun (sometimes known as Walukarr). This could translate, for example, into people identifying a particular mythological ancestor as (say) Burdal. That would then lead to them saying that that country was Burdal.
20. Peter Wood’s evidence was that he was Burdal. Peter married twice. His first wife was Kathleen; his second wife is Frieda. Frieda is Mambali and, as Peter said, this was a ‘straight marriage.’ On the other hand, his first wife was Murrungun. Notwithstanding that the Murrungun belonged to the opposite (‘Duwa’) moiety, Peter acknowledged that this marriage was not a ‘straight marriage’ thereby contradicting the clear lines of demarcation that are set out in the Asche report. According to Peter’s evidence, Burdal can sometimes marry Murrungun, but only in certain circumstances which did not apply to his marriage to Kathleen.
21. The Ngalakan people, in seeking this determination of native title, have pursued a claim, as against the whole world, for exclusive rights with respect to every aspect of possession, occupation, use and enjoyment. If however, their claim for exclusivity were to fail in respect of the claim area, or any part of the claim area, the native title rights and interests that were sought in the alternative were the rights:
22. The trial was conducted at Buddawarka Outstation, an Aboriginal community settlement that was home to many of the applicants; however, evidence was also taken at a number of places on or near to the claim area. The evidence of the claimants was taken on site in the week of Monday 12 July 1999. The Court then adjourned to 17 April 2000 to hear the evidence of the applicants’ expert anthropological witnesses. By arrangement with counsel, the Court then adjourned to receive the written submissions of the parties; the last of those submissions was not received until 21 August 2000. In the meantime, on 25 July 2000, Olney J delivered his judgment in Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923 (‘St Vidgeons’), a case that dealt with an application for a determination of native title over an area of land that is commonly referred to as St Vidgeons. The area that was the subject of the claim in that case mostly comprised the old St Vigdeons Station, a former cattle station that had initially been established in the 1880s. The Roper River forms part of the northern boundary of St Vidgeons and the Yutpundji — Djindiwirritj Aboriginal Land Trust, which came into existence as a result of the Roper River Land Claim, abuts St Vidgeons in the north-east corner of St Vidgeons. St Vidgeons is therefore in close proximity to the claim area in these proceedings. The Ngalakan People, the applicants in these proceedings were one of four language groups who were the applicants in St Vidgeons.
23. The claimant group was said to include three different sets of identities whose groupings are based on their relationship to their ancestors. In the first place there are the Mingirringgi; they are the persons who claim their rights to the land through their father’s father. The rights and responsibilities of Mingirringi are, for the most part, acquired at birth and may not be removed except in extreme circumstances. Next are the Junggayi; they claim their rights either through their mother’s father or their father’s mother. Rights that have been acquired from the mother’s father can be passed on but only to the next generation; rights that have come from the father’s mother cannot be passed on. Finally, there are the Darlnyin who claim their rights through their mother’s mother. Mingirringgi who gave evidence included Tex Camfoo, Doreen Ponto, Peter Woods and Mildred and Samson Ponto. Roy Golokurndu and Dawson Daniels gave their evidence as Junggayi whilst Barney Farrer and James Woods were those who gave evidence in their capacity as Darlnyin. In addition to these witnesses, Hannah Tyson also gave evidence but her evidence was directed, in the main, to the identification of items of bush tucker and their locations together with some evidence about artefacts and weapons.
24. The evidence established that one person has different classifications in relation to different countries or areas of land. For example, Roy Golokurndu would not have to obtain permission to use and enjoy the adjoining Quite Snake (Djindiwirritj) country to the west because he is Mingirringgi for that country and therefore has full rights and interests in it. In fact, the Buddawarka Outstation, which he helped establish, is within the Quiet Snake country.
25. Although the identity of some of the members of the community was the subject of dispute, there was no real argument advanced by the Territory against the existence of native title over the greater part of the claim area. The oral testimony of the Aboriginal witnesses supported a finding that a community exists in the area of which the claim area is a part; it is a community that has lived and is living under its traditional laws and traditional customs as they have evolved and changed over time. The community’s communal native title has survived and is and has been enjoyed by its members according to their traditionally based laws and customs as they have existed from time to time. Initially, the Territory raised a fundamental issue that was based on the remarks of Toohey J in the course of his recommendations in the Roper Bar claim. In the compilation of his report, his Honour had to consider the identity of the traditional owners, as that term was defined in the Land Rights Act. His Honour concluded that the traditional owners were limited to the Mingirringgi: that is, he held that only those members who could trace patrilineal descent were to be regarded as traditional owners. The matter of concern to the Territory, and the matter that it initially wanted tested in this litigation was the prospect of an Aboriginal person having the potential to join in claims for native title in respect of four different areas of land. The first area would be that which was claimed through the father’s father and in respect of which the claimant would be Mingirringgi. The second piece of land could be the subject of a claim through the claimant’s mother’s father whilst the third could be that which was claimed through the father’s mother. In respect of those two separate pieces of land the claimant would be Junggayi. Finally, the claimant could be Darlnyin through his or her mother’s mother in respect of a fourth piece of land. However, in its final submissions, the Territory stepped away from its initial position. It stated that it made ‘no submissions that the evidence in this case discloses a less inclusive native title holding “model”’.
26. In 1886 the township of Urapunga was surveyed and the township was proclaimed and declared on 17 March 1887, pursuant to s 17 of the Northern Territory Crown Lands Consolidation Act (1882) (‘the Crown Lands Act’). Section 17 was in these terms:
The Governor may, from time to time, by notice published in the Gazette, declare what parts of the waste lands are to be set apart for the sites of new towns or townships, and for suburbs thereto, and such lands shall thereupon be reserved and designated as town, township, or suburban lands as the case may be.
27. By virtue of the proclamation and declaration, lands were set apart as the site for a new town, to be called the Town of Urapunga and such lands thereby became reserved and dedicated town lands. Section 6 of the Crown Lands Act stated that until waste land had been surveyed and delineated in public maps in accordance with s 7, there could be no fee simple grants. Section 14 is of particular importance to this case as it provided that:
The delineation in the public maps of the said Northern Territory of any public roads shall be and be deemed to be a sufficient dedication to the public of such roads, anything in the last preceding section to the contrary notwithstanding.
28. The survey of the Township consisted of 276 allotments that were arranged into blocks on a grid. A public plan of the township of Urapunga, as published by the Northern Territory Department of Lands, Planning and Environment on 23 October 1995 shows the lay-out of the 276 allotments together with the provision for roads and a square that was to be known as ‘Salisbury Square’. Five of the original allotments, numbered 1, 2, 22, 23 and 24 have been consolidated into one large allotment; that new allotment, which has been renumbered allotment 277, was initially the subject of the issue of a Crown Lease. That lease, which was granted in April 1984, required the lessee to establish a caravan park and, subject to the due compliance by the lessee with all terms and conditions of the lease, it gave to the lessee an option to surrender the lease in exchange for an estate in fee simple. The option was exercised and a grant in fee simple of allotment 227 was made on 11 April 1988. The applicants have excluded from their claim that last-mentioned allotment; it was accepted that, as it was the subject of a freehold grant, any native title that may have once existed in respect of that allotment has been extinguished. It was also accepted by the parties that allotment 227 is the site of the existing Caravan Park at the Roper Bar, although no survey evidence to establish that fact was adduced. Notwithstanding the gazettal of the Township, little development occurred and the gazetted area is presently bush land except for the operational caravan park and a few dilapidated and abandoned buildings. Three ungazetted roads run through the gazetted area; they are known as the Roper Highway, the Boat Ramp Road and the Roper Store Road. The area covered by the present application for a determination of native title originally included the land represented by these three roads. However, the application was amended prior to its acceptance on 28 September 1995 to exclude all roads over which the public has a right of way. The applicants have therefore excluded each of those roads from their claim for native title. There is a dispute between the parties about the lateral measurement of the excluded areas. The applicants, for their part, were only prepared to concede ‘land on which the road has physically been constructed. On the other hand, the Territory argued that the excluded areas should be taken to include ‘cleared and otherwise altered land forming the carriageway and incidental to its use’. In my opinion, the submissions of the Territory must prevail — although I am not in a position to state how that success is to be reflected in measurements. There is an obvious need for contiguous land to allow for a variety of services such as signage, drainage and visibility. If the parties cannot agree appropriate widths, it may be necessary to consider reopening the case so that both parties may have the opportunity of leading further evidence. Olney J considered the question of the width of roads in the St Vidgeons case, saying at par 127:
It is however 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 in the Top End) 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.
29. The first sales of Urapunga allotments occurred in August 1889. Each was by way of Land Grant of an estate in fee simple. On 24 August, three allotments, numbers 3, 5 and 21, were granted to a John Costello who, in 1916, transferred one of them to Desmond Michael Costello and the other two to Patrick Joseph Costello. On the same day, 24 August 1889, a further two allotments, numbers 9 and 19, were granted to Maria Doolan and two years later, on 27 August 1891, two allotments, numbers 30 and 54, were granted to Nicholas Brazil. Each of these Land Grants, after identifying the grantee and the relevant allotment number, proceeded to state that Her Majesty granted the land as ‘delineated in the Public Maps deposited in the Survey Office at Adelaide ... TO HOLD unto [the grantee] his Heirs and Assigns for ever’. Such a grant is a grant in fee simple as was recognised in the endorsement of the transfers to Desmond Michael and Patrick Joseph Costello. No further dealings with any of those seven allotments have been recorded but, as they were grants of estates in fee simple, the applicants have excluded them from their claim.
30. As the applicants stated, in their written submissions, the Town of Urapunga is a town in name and form only.
31. The applicants’ claim for a determination of Native title extends over the remaining allotments together with the areas identified as gazetted roads and ‘Salisbury Square’. The fact that the claim area is only a relatively small area of land does not constitute an inhibiting factor to a grant of native title. As French J pointed out in Re: Waanyi People’s Native Title Application (1995) 129 ALR 118 at 133–134, a claim area is not to be viewed in isolation; ‘it would be sufficient for the applicant to establish that the claimed land lies within a wider area within which they have the requisite connection’. Subject to the matters to which specific mention has been made, claim area has never been the subject of any dealings of any nature. In particular, it has never been the subject of a lease — pastoral or otherwise. As Ms Webb, counsel for the Territory noted, during the course of her opening, this claim for a determination of native title does not raise, to a substantial degree, the issue of extinguishment by legislative or executive acts of the Crown. She did, however, identify that the Territory would be arguing that the gazetted roads in the subdivision had had the effect of extinguishing native title.
32. At common law, a road most commonly became a public road by reason of the dedication of the right of passage to the public by the owner of the soil and by reason of an acceptance of the right of way by the public. Usually, that acceptance was established by use: see generally Halsbury’s Laws of England (4 Ed) Vol 21 par 64–67. ‘Dedication’ in that sense, was taken to mean that the owner so conducted himself as to make an offer of usage to the public which the public then accepted.
33. In Permanent Trustee Company of New South Wales Ltd v Council of the Municipality of Campbelltown [1960] HCA 62; (1960) 105 CLR 401, the High Court had to consider the procedure by which, at common law, a public road might come into existence over privately owned land. In that case, an 1883 plan of the subdivision identified a piece of land as a road but, at the time of the litigation, the particular piece of land was wholly undeveloped. Nevertheless, as Windeyer J pointed out at 422, the lodgment of the plan of subdivision gave those who purchased and took transfers of allotments by reference to the plan, a right to use, as a way of access, any road shown on the plan of which their lots abutted. Earlier at p 420 his Honour had noted:
It is the public right to use the land as a way, rather than its physical nature, that makes land a highway.
At common law, a declared intention to dedicate land as a public highway (for example, by the lodgment of a plan of subdivision) would be ‘ripened into dedication by public user of the land as a road, or by a public body having authority to take over on behalf of the public doing so, by for example, expending money in forming or maintaining it as a road’: per Windeyer J at 422. In my opinion, the action of the public authority in gazetting the Proclamation that created the Township could, in an application of the language of Windeyer J, be sufficient to amount to the land having been taken over on behalf of the public. The relevant proclamation appeared in the South Australian Government Gazette on 17 March 1887. However, in this case the situation has also been governed by the provisions of the Crown Lands Act and regard must be had, not only to its provisions, but also to the actual grants of estates in fee simple of various allotments.
34. The acquisition by Messrs Costello, Brazil and Ms Doolan of their respective allotments meant, at the least, based on the remarks of Windeyer J in Permanent Trustee v Council of Campbelltown, that the surveyed roads abutting their allotments must have become public roads so that they might be used by them to gain access to their allotments. From there it is but a short step to hold that this usage would be meaningless and valueless unless they also had the benefit of the other roads in the subdivision so that they might use those other roads to access those parts of the roads that abut their allotments. Once that concession is established it leaves one committed to the conclusion that all roads in the subdivision must carry the identification of public roads.
35. In Attorney-General for the Northern Territory of Australia v Minister for Aboriginal Affairs [1989] FCA 159; (1989) 23 FCR 536, Lockhart J at 541 asked, without deciding, ‘whether land which is owned by the Crown may be dedicated as a public road by dedication alone without acceptance by the public’. His Honour noted that Wilcox J had considered that question in Attorney-General for the Northern Territory of Australia v Minister for Aboriginal Affairs (Wilcox J, 3 August 1988, unreported) but had found that it was not necessary to decide the point.
36. In my opinion, the concept of an ‘offer’ to the public is not an imperative. In Bass Coast Shire Council v King [1997] 2 VR 5, Winneke P (with whom Hayne and Charles JJA agreed) considered that, at common law, dedication of a public road was possible otherwise than by the Crown making an offer to dedicate land as a road and the public accepting such an offer. His Honour observed at p 18:
Upon this question whether there is evidence of dedication of land as a public road, a distinction has, I think, been drawn between lands offered by the Crown and lands offered by private owners. In the normal course of events the lodging of a plan of subdivision of land in the hands of a private owner is not, of itself, evidence of dedication to the public of the roadways set out on that plan. It is taken to be nothing more than an offer to dedicate such roads which can be withdrawn at any time before the public accepts the offer ... On the other hand, Mr Shaw contends, the surveying and marking out of Crown land as roads on the plans lodged with the Survey-General’s Department was in itself an act of dedication by the Crown of such roads to the public.
Commenting that he agreed with that view, his Honour went on to say:
... (I)t seems to me that the pegging out and surveying of roads by Crown surveyors and, then, marking them out of the official maps of the department is itself a reservation of Crown land for road purposes sufficient to amount to a dedication to the public.
Winneke J noted the observations of Lockhart J and Wilcox J but considered that they were obiter and, in any event, distinguishable because of differences in the two legislative schemes.
37. The applicants, in their final submissions, were critical of the lack of evidence that had been adduced by the Territory. The onus of proving extinguishment was clearly on the Territory. In Western Australia v Ward (see above) at 352 Beaumont and von Doussa JJ in their joint judgment stated:
Thus, in accordance with ordinary principle, the party asserting extinguishment carries an evidential onus of proving the nature and content of the executive act relied upon (although the discharge of that evidential onus may be assisted by the ordinary presumptions of regularity and continuance.)
38. The applicants complained that the original survey plans for the Township had not been produced, nor had the Court had the benefit of any evidence from the office of the Surveyor General on the history of land development and road creation in the Northern Territory generally, or with respect to the Township of Urapunga in particular. This is true but, in my opinion, the material that has been placed before the Court by the Territory has not been challenged in any meaningful way by the applicants and it tells the story of the birth (and the death) of the Township quite clearly.
39. One curious submission that was presented by the applicants should not go unnoticed. They claimed, quite accurately, that the Territory did not lead any evidence about any pegs or other survey markings that would establish that the allotments and the streets of Urapunga were ever specifically marked out on the ground. Yet they overlooked that, in their formal presentation for a determination of native title over a specified piece of land (ie the Township of Urapunga), they failed to prove the outer boundaries of the land that was the subject of their claim. That failure was brought about because both parties were prepared to allow the case to proceed upon the basis of the plans, the gazetted notice, the copies of land grants and other materials that were tendered in evidence.
40. The applicants sought to distance themselves from the likely effects of s 14 of the Crown Lands Act by pointing out that the legislation did not define the term ‘public maps’ and that, in any event, there was no evidence that any such maps were available in the 1880’s for inspection by the members of the public. The applicants submitted that the Territory had failed to prove, in terms of the language of s 14, the existence or the contents of ‘the public maps’ of the Northern Territory with respect to the public roads in the Township of Urapunga. After a period of 120 years or so, the materials that have been gathered by the parties and tendered in evidence are sufficient to warrant a presumption of regularity so as to reject that submission. The strongest reaction to that submission lies in the tangible evidence of the land grants that were issued to Mr Costello and the others and the plans that appeared in the margin of each of the seven land grants. Those plans, when compared with (say) the plan of the Township dated 13 October 1995 (forming part of Ex R2) are wholly compatible. Thus John Costello’s land grants for Allotments 3 and 5 have a plan in the margin showing that the allotments front Furner Terrace whilst his allotment 21 faces Blyth St. Ms Doolan’s allotment 9 also fronts Furner Terrace but her allotment 19 is on the north-east corner of the intersection of Blyth and Barker Streets and that is where it appears in the map that was prepared over 100 years later. Nicholas Brazil’s two land grants have plans in their margins that show that allotments 30 and 54 were each on the south-western corner of an intersection. Allotment 30 was on the corner of Blyth and Barker Streets and allotment 54 was on the corner of King and Barker Streets. The invitation to accept the 1995 plan of the subdivision as a faithful reproduction of the original plan of subdivision is too strong to resist. The existence of the land grants is, without more, sufficient to dispose of the applicants’ argument that the Territory has failed to demonstrate that the statutory procedures that were required in the 1880s by the Crown Lands Act had been followed.
41. The Territory submitted that, if native title existed prior to 1889 in respect of the gazetted streets of the township, it was extinguished as and from the time when the roads were dedicated. The word ‘dedicated’ was used in the sense of connoting the fulfilment of criteria (whether by statute or at common law) whereby land becomes public roads. In Fourmile v Selpam Pty Ltd [1998] FCA 67; (1997) 80 FCR 151, a Full Court of this Court considered (inter alia) an application for a determination that native title had been extinguished when land was constituted as a public road. The Court concluded that the land was effectively constituted as a public road under the relevant Queensland legislation: the fact that no roadway was ever formed on the road and the absence of direct evidence of public user of the road did not prevent the land from having the status of a public road.
42. The Full Court’s decision in the Fourmile case dealt with the particular statutory regime that was then in place in Queensland; it was not concerned with the common law principles that applied to the dedication of land for a highway. A statute may establish procedures whereby land may be dedicated as a public road; in that event, a public road will come into existence by force of statute; it would not be necessary to prove dedication or acceptance by the public. Drummond J, in the Fourmile case, noted the comments of Lockhart J and Wilcox J saying of them:
But these decisions do not purport to throw any doubt upon the proposition that, where the Crown is permitted by legislative authority to constitute a public road, the question whether lands have been so constituted as a public road depends entirely on whether the statutory procedure has been followed. (167)
43. Drummond J, with whom Burchett J agreed went on to say at 170:
In my opinion, where the Crown, acting under statutory authority, constitutes wastelands of the Crown as a public road, that is, as a road open to immediate use as such by the public, that is an act that will, in all save an exceptional case, be wholly inconsistent with any continuing right to enjoy native title in those lands; it will be sufficient to extinguish native title for the reason that it is an act that creates in third parties (members of the public) the enforceable right of free passage over the lands and denies to all persons the right to use the land for any other purpose than free passage or a purpose incidental thereto:
Cooper J, the remaining member of the Court, in a separate judgment, reached the same conclusion saying at p 187:
The creation by the Crown of public rights of user through dedication of the road as an extension of Roberts Road to provide for public access to the lands abutting the road and to provide access to the lands west of Portion 25V, together with the creation of private rights in the owners from time to time of the adjoining lands, is consistent with the Crown having exercised its sovereign power to appropriate to itself a plenary title to the land in order to use it for a public purpose, namely to create public roads with their attendant public and private common law rights. Appropriation by the Crown of the land constituting the road and the creation of the rights of user are inconsistent with the common law rights of native title claimed by Mr Fourmile and set out earlier in these reasons. Any native title rights which previously existed in the roadway, including the roadway the subject of the road closure application by Selpam, have been extinguished: Wik Peoples v Queensland (1996) 187 CLR 1 at 91–92.
The facts in Fourmile v Selpam were very similar to the facts in these proceedings. There existed, at the relevant time in Fourmile v Selpam, as there then existed in the case of the Township of Urapunga, a statutory procedure, independent of common law principles, relative to the constitution of land as public land, that was calculated to confer upon the public a right of user of land as a public road. In neither case did the relevant legislation impose any limitation on the persons who could use it or the manner in which it could be used.
44. There is a fundamental difference between the dedication of privately owned land for roads and the dedication of Crown Lands for the same purpose. In the latter case, as Winneke J pointed out in Bass Coast Shire Council v King (see above) at p 15, the survey would mark out both the allotments for sale and the adjoining roads. Those roads would, however, be reserved from sale: the land that was represented by those roads would remain the property of the Crown. In a private development however, the land owner relinquished ownership of land that was represented on the plan as the roads. In my opinion, the provisions of s 14 of the Crown Lands Act supply the legislative or statutory scheme that supersedes the common law principles. There was not, at the time of the creation of the Township of Urapunga, a need for an act of acceptance by the public.
45. Counsel for the Territory argued that the gazetted roads had been constituted public roads in accordance with common law principles and the applicants, in their final submissions, accepted that it was possible, in the 1880s, for a public road to come into existence at Urapunga in accordance with common law principles. However, I do not believe that it is necessary to resort to those principles. The legislative scheme as contained in the Crown Lands Act, coupled with the gazettal of the Township, the subsequent sale of allotments and the issue of land grants was sufficient in my opinion to amount to a formal dedication of the gazetted roads as public roads. The unrestricted right of the public to use and enjoy these public roads is so incompatible with native title as to extinguish it.
46. I accept the submissions of counsel for the Territory that it can be inferred from these dealings that:
The streets that became public roads are the streets that are shown as such in the plan that was tendered during the course of the trial.
In other words, there is a presumption of regularity or a presumption of the due performance of official duty: see the authorities that were collected on this subject by Drummond J in the Fourmile case. The applicants acknowledged that the presumption of due performance of official duty may be applied where the evidence affirmatively establishes that particular matters relating to someone’s official duty are not known and cannot, with reasonable diligence, be established. However, they argued that the presumption should not be applied in order to prove matters that can be established by direct evidence. I have no difficulty with this submission but it is not apparent to me what essential element in the chain of events could have been, but was not, the subject of direct proof. I do not, for example, consider that the absence of the original survey plan was a critical omission.
47. The creation of the gazetted roads was therefore, in my opinion, inconsistent with and extinguished any native title that was previously subsisting over the parcels of land that were represented by those roads. That extinguishment probably occurred as early as 17 March 1887 when the relevant notice appeared in the South Australian Government Gazette but certainly it occurred as and from the time of the first land grant on 24 August 1889.
48. To the members of the Aboriginal community who were the claimants in this litigation, biological descent is important, but a person can also achieve a classification through social recognition. This is most often achieved through adoption, but it can also occur through incorporation. Adoption is the term that is used when someone has been ‘grown up’ by a member of a group. In a case such as that, the adult who is doing ‘the growing up’ is regarded as a social parent. Just as a person who has been formally adopted can enjoy, in western society, the same rights of inheritance and maintenance as a natural born child, so also can a person who has been accepted into a group by adoption, claim membership of that group and trace his or her membership back through the adopting family.
49. Incorporation is a much broader concept and could occur, for example, where a person who, although not ‘grown up’ by a member of the group, has nevertheless come to be regarded as a member of the group. This could occur as a result of ceremonial involvements or residence or skin affiliation. Tex Camfoo, for example, was adopted by Power Jack (Magurnba) who was a Mingirringgi for the area that includes the claim area. Through that affiliation, Tex has come to be regarded as a senior Mingirringgi for the country. Another example is Peter Woods who was born on the eastern Arnhem Land coast. As a child, he was brought to Roper Bar where his father died when Peter was still young. However, he was of the correct semi-moiety to be Mingirringgi. That did not mean, however, that Peter thereby abandoned his connections with the country of his birth in Arnhem Land. That connection still remains and is still maintained by Peter. Dawson Daniels is an example of an ‘outsider’ who became a Junggayi. He lived at Ngukurr but regularly visited Roper Bar where he formed a close association with members of the Ponto family as he grew up. There came a time when the number of Junggayi fell away and Dawson and his brothers were invited to fill the gap. Thus, through this concept of incorporation, they became Junggayi for the area of which the claim area is part.
50. The Territory did not dispute the availability of the concept of adoption but it had reservations about ‘incorporation’. It did not dispute that there could be circumstances where a person might be incorporated into a group that is associated with country otherwise than by the principles of descent. Examples that the Territory recognised were matters such as long residence in an area or superior knowledge of ceremony. However, so it was claimed, such cases are exceptions to the general rule of inheritance through biological or adoptive descent. The Territory claimed that the evidence did not support a conclusion that incorporation is a long established tradition. Rather, said the Territory, it appears to be a relatively recent mechanism whereby males are ‘recruited’ through ceremony in order to make viable otherwise rapidly diminishing groups. Assuming that the evidence supports the Territory’s submission that incorporation is relatively new — and I am by no means satisfied that it does — the evidence of Professor Morphy and Mr Stead suggested that incorporation, like adoption, is, nevertheless, part of the system of traditional laws and customs. I do not consider that the recency of the practice is a matter of concern. There is ample authority to the effect that native title rights and interests are not ‘frozen in time’; they, like all cultures, are continually evolving. There was uncontradicted evidence from Peter Woods and Dawson Daniels that they had been incorporated as Mingirringgi and Junggayi respectively and that their incorporation was in accordance with the customs and traditions of the community.
51. Lack of biological or adoptive descent does not therefore create a problem in an application for a determination of native title if a particular person can show that he or she is a member of the claimant group by virtue of the traditional laws acknowledged and traditional customs observed by that group.
52. The applicants referred, in their written submissions, to the evidence that supported a connection between the present claimants, their known ancestors and a common and continuing connection with the land of which the claim area forms part. As this evidence was not challenged by the Territory, and as I am satisfied that the evidence supports that connection, I find that selected parts of the claim area are presently possessed, occupied, used and enjoyed by the claimants and that these rights are and have been held by them and by their ancestors in accordance with traditional laws and customs. In my opinion, it is open to me to draw the inference that the Aboriginal inhabitants who were in occupation of the claim area at the time of the first contact with Europeans ‘were connected to the land of the claim area and with the Aboriginal people who occupied the claim area at sovereignty’: Ward v State of Western Australia (see above) at 514. There being no evidence to the contrary, Olney J was prepared to draw like inferences in The Members of the Yorta Yorta Aboriginal Community v The State of Victoria [1998] 1606 FCA and in Yarmirr v Northern Territory of Australia (1998) 82 FCR 533 at 569. Kirby P (as he then was) noted the difficulties that confronted Aboriginal claimants in seeking to prove their precise genealogy in Mason v Tritton (1994) 34 NSWLR 572 at 588–589. He said:
In the nature of Aboriginal society, their many deprivations and disadvantages following European settlement of Australia and the limited record keeping of the earliest days, it is next to impossible to expect that Aboriginal Australians will ever be able to prove, by recorded details, their precise genealogy back to the time before 1788. In these circumstances, it would be unreasonable and unrealistic for the common law of Australia to demand such proof for the establishment of a claim to native title. The common law, being the creation of reason, typically rejects unrealistic and unreasonable principles. If, therefore, in this case the only problem for the appellant had been that of extending the proved use of land by his Aboriginal forebears from the 1880’s back to the time before 1788, I would have been willing to draw the inference asked. In more traditional Aboriginal communities, the inference will be quite easily drawn. But, even in this case, it would seem to be commonsense to draw it.
53. In my view, although it is not necessary for the Court to name each individual member of the claimant group: State of Western Australia v Ward at 378 per Beaumont and von Doussa JJ, it is necessary for the Court, if the evidence permits, to identify the claimants as a group or as a community. In this case, I am satisfied that the group comprises those Aboriginal persons who are either Mingirringgi, Junggayi or Darlnyin for that area of land in the Roper River region which includes the claim area. However, I do not consider that there is a broader regional community such that one could say that the claimant group includes all residents of the towns and settlements in the area. Such an enlargement would allow for the inclusion of those Aboriginal persons who are recent arrivals in the area who have little or no traditional connection with the claim area. Mr Stead has examined the issue of community at some length. His analysis of the issue was as follows:
As indicated in section 2.3.3, there is economic and religious cooperation between the landholding groups that make up the regional community. In most areas the regional community can be identified not only by factors such as shared tradition, customs, history, ceremonial interaction, kinship and intermarriage, but also by factors such as a shared world view, a shared system of religious symbols and a shared belief in a particular style or way of doing things in contrast to the way other people do things. Using such a set of reference points, it is possible to define a regional community consisting of the Aboriginal people who come from the region claimed by the Roper River and its tributaries — the Roper Valley regional community (see Stead 1999: 3–6). Spatially this would include the settlements of Ngukurr and its outstations, Urapunga, Burrdawarrka, Roper Valley, Jilkminggan (Duck Creek), Hodgson Downs, Hodgson River and Maria Lagoon. Not all the members of this regional community live within its nominal geographic bounds. Some live outside it for a variety of reasons including seeking employment, living with spouses from other areas and medical reasons. However, such people, as long as they are perceived as sharing the core community cultural characteristics, are accepted as members. For instance, Tex Camfoo lives outside the nominal geographic boundaries of the regional community and yet is undoubtedly a member of it.
As Peterson and Devitt point out (1997:15, also Stead 199:6) within most regional communities (in the sense defined above) other kinds of more contingent social groupings emerge around particular issues, occasions and contacts, e.g. a ceremony, death, dispute or even a Native Title Claim. Such contingent social groupings are made up of all those people who assert an interest in the matter. Such groups, as Peterson and Devitt (1997:15) point out, have a well defined and predictable core given the particular issue. However, the membership of such contingent social groupings are almost nearly always drawn from the regional community.
With regard to the Native Title Claim to the Township of Urapunga the members of the claimant group as defined through the statuses of Mingirringgi, Junggayi and Darlnyin make up a core of a contingent sub-group of the regional community. It is they who are recognised by other members of the regional community as those with core Native Title rights and interests in the claim area in accordance with the traditions and law of the regional community.
54. I am content to accept this analysis save for his reference to the Mingirringgi, Junggayi and Darlnyin making up ‘a core of a contingent sub-group of the regional community’. That statement may well be correct in an anthropological overview of the Roper River region but my concern is limited to the claim area. I would prefer, therefore, to identify the native title claimants in these proceedings in the manner in which I have earlier described them.
55. The Territory submitted that the applicants were not entitled to claim exclusivity in respect of such native title rights and interests (if any) as may be found by the Court to exist in their favour. It argued that the fact that there may be no one, apart from the native title holders, with rights of possession, occupation, use or enjoyment of the claimed land was not a decisive factor. It was submitted, on behalf of the Territory, that the evidence did not establish that the traditional laws and customs, which gave form to the applicants native title rights and interests in the claim area, had ever involved a right or an obligation to exclude others from that country. In making those submissions, the Territory referred to and relied upon an observation that had been made by Olney J in Yarmirr v Northern Territory of Australia at 576. His Honour referred to the evidence of a witness who said:
I own that country.
His Honour said that a statement of that kind:
... in the absence of anything else [does] not seem to be an assertion of the type of dominion over the country that might normally be associated with ownership in its most absolute form.
56. With respect, I agree with that statement but in advancing its submission the Territory, in my opinion, has overlooked the fact that the expression ‘native title’ is not synonymous with, nor was it ever intended to be synonymous with the common law concept of ‘ownership’. The expression ‘native title’ is defined in subs 223(1) of the Native Title Act. It means, inter alia:
[T]he communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia. [emphasis added]
57. In considering the content of that definition, it becomes obvious that the dominant words are ‘possessed’ and ‘connection’, neither of which equates with the word ‘ownership’. To the extent to which several of the Aboriginal witnesses in this case used the word ‘owned’ (or a derivative of it), one must bear in mind that it would be inappropriate to accept that they were using the words in a strict legal sense. The passages from the evidence upon which the Territory relied in arguing against exclusivity have, in my opinion, the opposite effect. I believe that they support exclusivity. For example, Peter Woods was asked whether outsiders could come onto his country. His answer was, in fact, equivocal; it seemed to suggest that they could, but part of his answer included the words ‘... we’ll ask him to leave.’ Those words suggest some form of control independently of any question of ownership. Dawson Daniels agreed that ‘anybody’ could come into ‘that country’ by saying ‘visitor can come and visit but they not allowed to build house or something over them, things like that’. He went on to respond to questions about tourists by saying:
They welcome to come down for a weekend with their family doing bit of fishing, go down the river, crawling along the river bank by boats, and Sunday or Saturday they pack up and leave.
58. That form of incidental visitation would not, in my view of the matter, impinge upon total control. Both Tex Camfoo and Peter Woods were asked what would a person have to do if he wished to build a caravan park on their land. Each replied that the individual would have to see ‘the owner’.
59. As I have earlier indicated, I would regard the use of the word ‘owner’ by the Aboriginal witnesses as indicative of control rather than a claiming of something akin to the fee simple. An interesting example of the care that must be taken when asking questions of an Aboriginal witness appeared in the evidence of Samson Ponto. He was asked:
If a white fella wants to come onto your country, does he need permission?
That question was intended to address native title rights and interests. However, the answer was both pragmatic and realistic. Samson replied:
They have to get through NLC. If they come to do something important down here, they have to get permits from Katherine ...
In giving his answer, Samson Ponto did not have regard to the concept of native title rights and traditions; rather he had regard to the practical, day to day need to obtain permits to enter Aboriginal lands.
60. I do not suggest that the absence of evidence of competing claims would lead to an automatic determination of exclusive rights, but its absence, coupled with the evidence of the Aboriginal claimants satisfies me that, in the particular circumstances of this case, it would be appropriate to recognise exclusivity.
61. The applicants have not claimed any native title rights to minerals (including petroleum) in or beneath the land. In Western Australia v Ward it was held, first, that the Minerals Acquisition Ordinance 1953 had extinguished any native title rights that had previously existed to use and enjoy minerals and, secondly, that the Petroleum Act 1984 had extinguished all native title rights in petroleum. The applicants have claimed the right to use and enjoy natural resources within the claim area (which would include the right to hunt fauna and gather flora) as well as the right to control the use and enjoyment by others of such resources. The Territory accepted that there is no legislative constraint upon a continuation of traditional use of the claim area ‘for hunting, for food gathering (otherwise than for the purposes of sale) and for ceremonial and religious purposes’ [Hayes, at par 120iii]; however, to the extent that exclusive rights to flora and fauna have been claimed, the Territory argued that those were extinguished by the Territory Parks and Wildlife Conservation Act (NT) and the regulations thereunder which impose a regime for the protection and control of plants and animals. In Hayes v Northern Territory of Australia [1999] FCA 1248, Olney J dealt with the effect of the Territory Parks and Wildlife Conservation Act (NT) and its predecessors at [120 (iii)]. His Honour found that the legislation ‘does not go beyond the mere regulation of the exercise of the common law native title rights of the applicants to hunt and gather food resources for their own sustenance’. The submissions of the Territory that any exclusive native title rights to fauna and flora have been extinguished by the legislation go beyond what was said by Olney J. The legislation in question merely regulates the exercise of any person’s rights — including the applicants’ native title rights, to use and enjoy the natural resources of the claim area. The site of a billabong within the claim area was visited during the course of the hearing. It contains water from time to time but there are no permanent surface water resources on the claim area. There are therefore no waters in the claim area to which native title might attach.
62. I propose to make a determination of native title in terms consistent with these reasons. For that purpose, I have composed a proposed determination which will be published and made available to the parties contemporaneously with the publication of these reasons. The final form of the determination will be settled after the parties have had the opportunity to consider these reasons and to make submissions with respect to its contents. At the same time, there will be leave to the parties to make submissions on the formal orders that should be entered to bring about the conclusion of this matter.
63. In the preparation of the proposed determination, and bearing in mind that I have concluded that the native title rights and interests confer possession, occupation, use and enjoyment to the exclusion of all others, I have had regard to the observations of Beaumont and von Doussa JJ in Western Australia v Ward at [372] where their Honours said:
... a determination that the community is the common law holder of native title rights and interests which entitle them as against the whole world to possession, occupation, use and enjoyment of the determination area would be sufficient, without further definition of rights and interests which may be enjoyed by different members of the community.
64. For these reasons I have opted to avoid spelling out specific rights and interests as was suggested by the parties in their respective proposals for the form of determination.
Counsel for the Applicant:
Mr T Keeley
Solicitor for the Applicant:
Mr Ron Levy
Counsel for the Respondent:
Ms R Webb and Mr R Bruxner
Solicitor for the Respondent:
The Solicitor the Northern Territory
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