RIGHTS TO ACCESS AND TO CAMP
5 It is submitted for the first respondents that any native title right (pursuant to the right to access) to 'remain' or (pursuant to the right to camp) to 'live' on an area of a pastoral lease is inconsistent with the rights a pastoralist to run stock, maintain pasture and construct or establish improvements on any part of the lease area. It is submitted that to 'remain' or 'live' has about it an element of permanent residence or occupation to be distinguished from transient access or camping. It is said that remaining or living in that way would result in it not being possible, in a practical sense, for a pastoralist's right to 'prevail' over the exercise of native title holders of such right. In contrast, it is said, there may be no inconsistency between the pastoralist's rights and the right of native title holders to access or camp from time to time on parts of the lease area where the exercise of that right may be ceased or relocated to another place when it comes into conflict with the rights of the pastoralist to, for example, depasture stock. It is therefore submitted that the right to remain forming part of native title right (a) above and the right to live on the area, forming part of native title right (c) above, have been extinguished by the grant of pastoral leases.
6 These submissions are supported on behalf of the fifth, eighth, ninth and tenth respondents.
7 The third respondent submits, in respect of the right to access, that a right to 'remain' on the land on which its cabling is located is inconsistent with its right to access that cabling to maintain it so that this right is extinguished in relation to the land on which Telstra's cabling has been installed. It is submitted the third respondent's right to access and maintain its cabling cannot, in a practical sense, 'prevail' over a right to 'remain' on the land but is rather inconsistent with such a right. Similarly, the third respondent submits that its customer terminal sites and the Mount Fraser Optical Fibre Regeneration site is inconsistent with a right to 'remain' on the land on which such facilities are located so that the right of access to the extent it includes the right to remain is therefore extinguished.
8 For the fifth respondents it is additionally submitted that an unqualified right of access is inconsistent with the rights of a pastoralist to use the pastoral property for pastoral purposes. It is submitted that the right of access should be limited to access for particular purposes being those identified in the Determination and relating the exercise of the right to access to the purposes of exercising the native title rights otherwise found. In addition to the submissions for the first respondent on the right to camp, it is submitted for the fifth respondent that a right to 'build shelters' is inconsistent with the pastoralist's right to conduct his or her operations, namely, to run stock, maintain pasture and construct or establish improvements, permanent or temporary, on any part of the lease area. It is therefore said that the right should be expressed as 'a right to camp temporarily on the area'.
9 Similarly, for the third respondent it is submitted that the right to camp, so far as it includes the right to 'live' on the land on which the third respondent's cabling is located, is inconsistent with its right to access its cabling to maintain it so that the right to that extent is extinguished. Further, it is said that the third respondent's right to occupy the land on which its facilities are installed free from interference and to access the facilities in order to maintain them is inconsistent with the first applicants' right to camp and build shelters. Therefore, it is submitted that the right to camp is extinguished in relation to land on which the third respondent's customer terminal sites and the Mount Fraser Optical Fibre Regeneration site are installed.
10 In the light of the reasons of the Court published in the 2003 Daniel decision at [586] the first applicants submit that the only right which is extinguished by the pastoral lease is the right to control such access and use of the land and that all the other native title rights found by the Court are not inconsistent with the rights arising from a pastoral lease and therefore have not been extinguished by such leases. It is said that the extinguishment of any native title rights only occurs when the rights are inconsistent with the rights under any valid grant of tenure. It is said the rights are not to be taken away unless there is a 'clear and plain intention to do so'. It is for this reason that the law has drawn a distinction between the grant of rights that are inconsistent with an extinguished native title on the one hand and rights which merely prevail over native title rights on the other: cf Native Title Act 1993 (Cth) s 23G(1)(a) and s 23G(1)(b). It is submitted that where the rights can coexist, they will not be extinguished. The submission is that there is nothing inconsistent with the first applicants living or remaining on areas within a pastoral lease on the basis that the interests of the pastoralist are protected by the fact that the rights of the pastoralist prevail over those of the native title holders. It is contended that to accept the submission for the first respondents will result in native title right to live on the land being completely extinguished by all pastoral leases because of a remote possibility that a pastoralist might one day want to carry out pastoral activities where the native title holders may be living. The first applicants therefore support the present formulation of the right to access and the right to camp.
11 As stated in the reasons delivered in the 2003 Daniel decision the High Court has held that the grant of a pastoral lease is a 'previous non-exclusive possession act' and has the immediate effect of extinguishing the exclusivity of any native title right to possess, occupy, use and enjoy the subject land: Western Australia v Ward (2002) 191 ALR 1 ('Ward HC') at 68, at [192] and at 122, at [422]. In Ward HC, the majority in the High Court (at 69, at [194]) expressed the possible extinguishing effect of pastoral leases beyond the issue of extinguishing control of access to the land the subject of the grants in the following terms:
'The right to control access apart, many other native title rights to use the land the subject of the pastoral leases probably continued unaffected. For example, the native title right to hunt or to gather traditional food on the land would not be inconsistent with the rights of the pastoral leaseholder although, as stated in para (a) of s 12M(l), the rights of the pastoral leaseholder would "prevail over" the native title rights and interests in question. On the other hand, for the native title holders to burn off the land probably would have been inconsistent with the rights granted to the pastoral leaseholder, so as to bring about extinguishment as identified in para (b)(i) of s 12M(l).'
The majority stated at [195] that it was necessary to use terms such as 'many' and 'probably' because in that particular case there had been limited findings by the primary judge and by the Full Court as to the relevant content of the native title rights and interests so that it was not possible to say whether there was inconsistency. They were issues which were to be taken up on the remittal of the matters to the Full Court.
12 This reasoning is also to be considered in the context of the example given by the majority later in their reasoning at 97, at [308] of the erection by a pastoral leaseholder of some shed or other structure on the land that may prevent native title holders gathering certain foods in that place. The majority said that such prevention did not necessarily result in an inconsistency with all native title. Further, the majority said at 132, at [468] point 10, that 'native title rights and interests, other than [the right to control access to or the use to be made of the land], probably continued unaffected by the grant [of a pastoral lease], but to what extent we cannot say from the present findings of fact.' The majority added, 'to the extent that the rights and interests granted by the pastoral lease were not inconsistent with native title rights and interests, the rights and interests under the lease prevailed over, but did not extinguish, native title rights.'
13 I read these passages as indicating that where it is possible for the rights of a pastoral lessee to prevail over the exercise of the native title rights, those rights are not extinguished. I therefore accept the submission for the first applicants that a native title right is not to be considered as inconsistent or as extinguishing native title only because the tenure holder may want to exercise rights at the same location as a native title holder thus preventing the native title holder from exercising those rights at that location at that time. The true test is whether at that location at that time the exercise of the native title rights and interests would prevent the rights of the tenure holder prevailing.
14 Doubtless the High Court's reliance on the notion of 'prevailing' carries within it the seeds of possible conflict between the holder of the pastoral lease and the holders of the native title rights and interests. Clearly it may be desirable in policy to limit the occasions when it may be necessary to test the prevalence of the rights of the holder of the pastoral lease. However, the law as expressed by the High Court requires this Court to make a judgment on whether the rights of the holder of the pastoral lease can prevail as against the relevant portions of the native title rights and interests put in issue by the submissions, that is, in relation to living and remaining. Furthermore, in considering these issues of inconsistency I consider that it is appropriate to have regard to the 'reasonable user' test propounded by Beaumont and von Doussa JJ in Western Australia v Ward (2000) 99 FCR 316 at 403, at [329] and at 478, at [641]; considered by Kirby J in Ward HC at 165, at [590] to be useful in the context.
15 My views are:
(1) it cannot be said that the right to 'remain' in right (a) would prevent the rights of the tenure holder prevailing: the right to remain cannot be exercised in such a way as would prevent the pastoral lease tenure holder's rights prevailing.
(2) The right to live in right (c) is potentially more difficult because a right to live read alone conveys some sense of permanency. However, the use of the word 'live' falls to be understood in the terms of right (c). It is effectively limited by the terms of right (c) read as a whole. The right is confined geographically. It is not a right giving or claimed as giving a right to live on an area independently of a right to camp. In the way the right was claimed and pressed, 'camping' does not have about it the character intended to encompass permanent living. So understood, it cannot prevail against the reasonable needs of the pastoral lease tenure holder.
(3) In relation to the third respondents' particular submissions concerning right (a):
(a) it is not correct that the native title holder's rights to remain could not yield to the third respondent's right to access and maintain its cabling.
(b) understanding 'living' in right (c) as explained above relating to a right to live temporarily on the areas as part of camping and for the purpose to 'build shelters', there is no inconsistency between that right and the third respondent's to service its cabling. The nature of any shelter built pursuant to the right is conditioned by the character of the right so that the shelter must be one against which the rights of the third respondent, reasonably exercised, can prevail.
(c) In the case of the customer terminal sites and the Mount Fraser Optical Fibre Regenerator site it is the case that there is inconsistency between the native title right to remain and the right to camp and the rights of the holders of the tenements containing those sites such that the right to 'remain', as part of right (a), and the right to camp (right (c)), are extinguished.
(4) In relation to the submissions for the fifth respondents:
(a) There is no basis in the evidence for redefining right (a) as previously found to be one limited to particular purposes to be identified in the Determination.
(b) Understanding right (c) as explained above, there is no basis for finding that right is inconsistent with the right of the pastoral leaseholder to conduct operations.