Consideration
52 The appropriate starting point is s 225 of the NT Act which defines the term "determination of native title". It provides:
225 Determination of native title
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.
53 The expression "native title rights and interests" is defined in s 223 which provides (relevantly):
Common law rights and interests
(1) The expression native title or native title rights and interests means the 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.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
…
54 Thus, a determination of native title is a determination of the rights defined in the NT Act: Ward HCA at [16].
55 It was common ground that each of the pastoral leases which will be the subject of the proposed determinations is a non-exclusive pastoral lease to which s 225(e) refers - see ss 248A and 248B of the NT Act. Accordingly, s 225(e) has no operation presently.
56 Section 94A of the NT Act requires that a determination of native title set out details of the matters mentioned in s 225 of the NT Act.
57 The combined effect of ss 94A, 223 and 225 is that a determination of native title should contain not only the matters specified in s 225 but also the "details" of those matters. Relevantly for present purposes, that requires a determination to contain details of the nature and extent of the NTRI in the determination area. It is details of the NTRI which are to be specified: not details of the activities which native title holders may engage in the exercise of those NTRI.
58 The distinction between the existence of a native title right, on the one hand, and the manner of its exercise, on the other, is well established. In Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422 at [84], Gleeson CJ, Gummow and Hayne JJ said:
[T]he exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise …
59 In Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33; (2013) 250 CLR 209, both the minority (French CJ and Crennan J) at [25]-[29] and the majority (Hayne, Kiefel and Bell JJ) distinguished between the activities permitted by the NTRI and the NTRI themselves, with the effect that certain activities could be prohibited without the NTRI themselves being extinguished. The majority confirmed, at [59], that NTRI may properly be seen as a bundle of rights, the separate components of which may be extinguished separately. Their Honours also said, at [67]-[68], that focussing on the activity described in a particular way rather than upon the relevant native title right may be apt to mislead:
[67] Focusing upon the activity described as "taking fish and other aquatic life for sale or trade", rather than focusing upon the relevant native title right, was apt to, and in this case did, lead to error. That shift of focus, from right to activity, led to error in this case by inferentially reframing the question determinative of extinguishment as being whether the statutory prohibition against fishing for a particular purpose without a licence was inconsistent with the continued existence of a native title right to fish for that purpose. But the relevant native title right that was found in this case was a right to take resources for any purpose. No distinct or separate native title right to take fish for sale or trade was found. The prohibition of taking fish for sale or trade without a licence regulated the exercise of the native title right by prohibiting its exercise for some, but not all, purposes without a licence. It did not extinguish the right to any extent.
[68] The Full Court's focus upon a particular activity was not consistent with the plurality's observation in Ward that reference to activity "is relevant only to the extent that it focuses attention upon the right" …
(Emphasis in the original and citation omitted)
60 The distinction between NTRI and their exercise was also made plain in State of Western Australia v Brown [2014] HCA 8; (2014) 253 CLR 507 in which it was confirmed, at [34], that the identification of the rights requires an objective ascertainment of the legal nature and content of the respective rights; that the nature and content of a right is not ascertained by reference to the way in which it has been, or will be exercised: ibid; and that consideration of the way in which a right has been exercised is relevant only in so far as it assists the correct identification of the nature and context of the right: ibid.
61 The distinction between NTRI and the activities in which native title holders may engage in their exercise was also observed by McKerracher J throughout his decision in Murray, including at [504], [510], [681] and [685], but I did not understand the applicants to contend that his Honour had addressed the issue presently before the Court.
62 Moreover, I do not understand the issue to have been addressed by Mansfield J in Borroloola or by Mortimer J in Narrier. The remaining matters to which the applicants referred to as emanating from or evidencing developments in the jurisprudence were consent determinations which are of some, but limited, assistance in the present context. Further, unlike the present applications, two (Murray and Birriliburu) concerned the determination of native title rights which were exclusive.
63 In my view, the distinction between the right and the manner of its exercise does not of itself indicate that the proposed cl 14 is unnecessary or inappropriate. That is particularly so when there is close coincidence between the identification of the right and its exercise.
64 Some authorities indicate the inappropriateness of attempts to particularise NTRI in determinations of native title in ways which do not reflect the determined rights and interests. The course of the decisions in Sampi provides an example. At first instance (Sampi v State of Western Australia [2005] FCA 777), French J, having found that the NTRI of the claimants in respect of unallocated Crown Land and certain other lands were exclusive, declined to express those rights as rights of "possession, occupation, use and enjoyment" of the land and continued:
[1072] The reference to 'use and enjoyment' in the context of exclusivity is, in my opinion, too widely stated and could pick up a variety of rights not contemplated by traditional law and custom. Use and enjoyment rights are, best defined more specifically. The right to possess and occupy as against the whole world carries with it the right to make decisions about access to and use of the land by others. The right to speak for land and to make decisions about its use and enjoyment by others is also subsumed in that global right of exclusive occupation.
(Emphasis added)
65 His Honour then went on to list, in a non-exhaustive fashion, particular NTRI which he had found established on the evidence.
66 However, on appeal (Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26), North and Mansfield JJ warned against attempts to identify NTRI with greater precision than is expressed in the formulation of those rights and interests under the laws and customs of the claimant people:
[120] To require a greater precision than is expressed in the formulation of the rights or interests under the laws or customs of the Aboriginal people is to fail to recognise the rights or interests which arise under that law. Once the statutory requirements for the recognition of native title are established, there is no warrant for limiting the rights and interests by adding a gloss to the statutory requirements in the form of a stipulation for a particular level of precision in the articulation of the rights or interests.
67 With respect to the rejection by French J of the inclusion of the words "use and enjoyment", North and Mansfield JJ said:
[153] We agree with the submission of the State that the words "use and enjoyment" do not add anything to the rights of possession and occupation. The right to use and enjoy the land is implicit in the right to possess and occupy the land. But that does not mean that the use of the expanded phrase is without a purpose. The additional words make explicit what is implicit. In so doing they serve to express the right without expanding its scope. This explains why the Court has in so many cases used this phrase as the usual description for such rights. There is a value in consistent usage in the cases to reflect the same rights. The primary judge, however, departed from the usual usage because he regarded the words "use and enjoyment" as potentially picking up a variety of rights not contemplated by traditional law and custom. Such rights were not identified and we are unable to determine what such rights might be. Consequently, the determination should describe the right to exclusive possession by including reference to "use and enjoyment".
68 The determination made by North and Mansfield JJ to give effect to their reasons in Sampi expressed the relevant NTRI of the claimant group as "the right of possession, occupation, use and enjoyment of that part as against the whole world, including the following rights" which was then followed by a list of some seven individual rights. As noted earlier, the respondents relied on the approach in Sampi to indicate the appropriateness of their proposed cl 14.
69 However, there are several authorities which indicate that, at least in cases like the present involving areas covered by pastoral leases in which the NTRI do not confer rights of possession, occupation, use and enjoyment to the exclusion of others, it is preferable for the determined rights to be expressed by reference to the activities which may be conducted as of right in relation to the land and waters. In State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (Ward FCA), Beaumont and von Doussa JJ said:
[205] The degree of specificity required in a determination will depend upon the nature and extent of the native title rights and interests, and is likely to vary from case to case, depending upon the evidence …
…
[210] In cases where the evidence establishes that the nature and extent of rights and interests in relation to land enjoyed by an indigenous group are less than an exclusive right to possess, occupy, use and enjoy the land, it will be necessary to sufficiently identify them. If the rights held are, for example, limited to rights to fish or hunt in certain areas (rights perhaps limited to certain species of animal), or for a particular purpose, or limited to a right merely to pass over land, then the description of the right might most conveniently be expressed by describing the activity or activities which the right permits …
70 On appeal (State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1), Gleeson CJ, Gaudron, Gummow and Hayne JJ said:
[51] A determination of native title must comply with the requirements of s 225. In particular, it must state the nature and extent of the native title rights and interests in relation to the determination area. Where, as was the case here in relation to some parts of the claim area, native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.
[52] It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead. Rather, as the form of the Ward claimants' statement of alleged rights might suggest, it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.
(Emphasis in the original in [51], emphasis added in [52] and citation omitted)
71 On the other hand, in his separate reasons in Ward HCA, Kirby J seemed to deprecate the specification of NTRI by a list of activities:
[570] In native title determinations, I agree that the specification of the rights and interests will be necessary to determine their "relationship" with other interests in the area and possible inconsistencies with those other interests. However, I do not agree that recognition of native title rights and interests should be unduly narrowed for this purpose. The object of the NTA is the recognition of "native title", rather than the provision of a list of activities permitted on, or in relation to, areas of land or waters the subject of a claim to native title. As was stated in Mabo [No 2] and incorporated into the NTA, native title involves the recognition, by the laws of Australia, of the traditional rights and interests of Australia's original peoples.
(Citation omitted)
72 On the remittal to this Court for further hearing and determination of the underlying applications giving rise to the appeal to the High Court in Ward HCA, the Full Court (Wilcox, North and Weinberg JJ) rejected a submission that s 225(b) was satisfied by the reference in the proposed determination to "non-exclusive rights to occupy use and enjoy the land and waters in accordance with their traditional laws and customs" - see Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; (2003) 134 FCR 16. Their Honours said:
[21] We cannot agree with this approach. A statement about the right to 'occupy, use and enjoy' (or merely 'use and enjoy') in accordance with traditional laws and customs conveys no information as to the nature and extent of the relevant rights and interests. It is equivalent to a statement that the holders of the traditional rights and interests are entitled to exercise their traditional rights and interests. Something more is obviously required. There must be a specification of the content of the relevant rights and interests. That is why the parties included sub-clauses (a) to (e). It is to those sub-clauses that a reader may look in considering the effect of the determination. They must exhaustively indicate the determined incidents of the right to use and enjoy.
(Emphasis added)
73 In his separate judgment in State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186; (2015) 239 FCR 175, Barker J said:
[128] In Australia, unlike the position in Canada, it has been recognised since Mabo v State of Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 that indigenous title is not a broad beneficial use right in land and waters held by a claimant group, but comprises those particular rights and interests which are shown to be possessed under the traditional laws and customs of the group. See, for example, Brennan J (with whom Mason CJ and McHugh J agreed) at 59-60 and 70; Deane and Gaudron JJ at 88-89; and Toohey J at 195.
74 Later, with reference to s 225 of the NT Act, Barker J said:
[136] On the face of it, by para (b), particular rights and interests found to exist must be determined in order to determine their "nature and extent"; and also, as explained below, for extinguishment purposes, where that is relevant.
(Emphasis added)
75 As is apparent, the authorities to which I have referred in this review concern the question of the specification of the NTRI themselves by a list of activities, and not the inclusion of a non-exhaustive list of the activities permitted by the NTRI specified elsewhere in the determination. Furthermore, it can be taken that the present parties have agreed that the NTRI are appropriately specified in the manner set out in cll 9 and 10 of the proposed determinations.
76 Nevertheless, the review of the statutory provisions, the authorities and the matters to which the parties referred in their submissions leads me to conclude:
(a) it is generally preferable for NTRI in determinations of native title of the present kind to be expressed by reference to the activities which may be conducted as of right on, or in relation to, the land or waters. It is by that means that effect is given to the requirement of s 94A that a determination set out "details" of the matters mentioned in s 225. As already noted, it is commonplace for determinations of native title in contexts like the present to include such lists;
(b) the NT Act does not require a list of activities permitted by the determined NTRI to be included in a determination of native title when the NTRI may be expressed in more general terms but ss 94A and 225 do not preclude the inclusion of such a list; and
(c) formulations of NTRI of the Newcastle Waters kind have considerable advantages and are generally consistent with the approach suggested by the majority in Ward HCA and Ward FCA as being appropriate. The approach set out in the decisions in Ward HCA and Ward FCA to which I have referred remains good law.
77 I accept the submission of the applicants that it is the respondents who have the persuasive burden of showing the appropriateness of inclusion of the non-exhaustive list. They are the parties who seek the inclusion of a clause about which the parties are disagreed.
78 In my view, the respondents have shown that the inclusion of the list of "non-limiting and non-exhaustive" rights is likely to have some advantages. Amongst other things, it will make it plain that there is agreement between the parties that the listed activities, at the least, are encompassed by the generally expressed NTRI and will limit the potential for future disputation about those activities. Moreover, I consider that there are no real disadvantages to the applicants by the inclusion of proposed cl 14. The fact that some determinations have been made over other areas in the form presently proposed by the applicants does not persuade me to the contrary, especially having regard to the force of the statement by the plurality in Ward HCA, set out earlier.
79 The Court and the parties should strive, so far as possible, to avoid the terms of a consent determination being misleading. However, in my view, both of the competing formulations involve some prospect that some persons may be misled. That cannot be avoided. I consider that the prospect of an ordinary reasonable reader of the determinations being misled or being uncertain about the nature of the NTRI will be less with the inclusion of the proposed cl 14 than by its exclusion.
80 I do not regard the applicants' submissions concerning the "balance" or the "feel" of the list of activities as persuasive. I note, in any event, the expressed willingness of the Northern Territory to include in cl 14 the Newcastle Waters rights which are presently omitted from the cl 14 list.
81 Accordingly, I conclude that the determination should include the proposed cl 14.