x) Area 53 (Underground Concrete Shelters)
In 1970 the structures which are said to be a public work established on lot 3797 (area 53), were described as being the property of the Commonwealth and to consist of -
(a) 2 underground shelters each a room measuring 21' x 14' x 7' high at highest point of curved ceiling and walls of corrugated asbestos cement sheets supported by 2" angle iron trusses, earth floor, entry shaft of 6' x 6' x 10' deep with steel ladder attached to wall of similar construction to room, but with concrete floor fair condition with some rusting at the base of the angle iron trusses.
Raised concrete edge at top of shaft. Gallows or framework of 6" x 7" hardwood timber 8' high for raising heavy steel door or lid, fitting closely over shaft (only one lid). One gallows white ant eaten and weak. Ventilation shaft of 10" bore casing at rear of room extending about 15" above ground level.
(b) Concrete path 45' long x 3' wide connecting both shelters and extending beyond fenced area.
(c) Fenced on eastern and southern sides by 240' x 10' panels x 10 black barb wires with 3 wire droppers between posts. Posts are 7' high of 2" pipe set in concrete. Double gate of 2" piping and cyclone mesh.
There seems to be no doubt that the shelters described were built as air-raid shelters during World War II and were constructed by or on behalf of the Commonwealth. The applicants argue that the underground shelters having been built for a temporary purpose and being capable of being filled in, are not fixtures. With respect, such reasoning lacks any logical basis given the nature of the construction.
Area 53 is a square comprising 3640 square metres. Although there is no evidence as to the area of adjacent land that would have been incidental to the construction and operation of the air raid shelters it is fair to infer that given the extent of the excavation required and the purpose for which the shelters were constructed, the whole of area 53 should be treated as a public work.
xi) Area 70 (Army Blockhouse/Explosives Magazine)
A structure established on lot 5816 (area 70) which is described as "army blockhouse/explosives magazine" is said by the respondent to be a public work. The structure has concrete walls, concrete floor and a flat concrete roof and ceiling. Its interior is about 10 feet square and 9 feet high. The building has not been used for its intended purpose for some years and the evidence indicates that it is so solidly constructed that it would be costly to demolish it. There is no evidence to support any finding as to what adjacent area of land may have been required for its construction and operation.
Portion of area 70 is affected by ML 394 which is a previous exclusive possession act but there is no evidence as to the location of the structure in relation to the portion of area 70 covered by the former lease. All that can be said is that the structure itself is a public work.
xii) Area 93 (Alice Springs Fire Station)
The Alice Springs Fire Station is constructed on Lot 7728 (area 93). The building works commenced in about October 1996. The applicants accept that the works constitute a public work for the purposes of the Native Title Act but say that they do not constitute an intermediate period act and are therefore not valid.
The question of the validity of the works depends upon whether or not the original PL 1 was validly granted. This issue arises because one of the elements of an intermediate period act is that -
at any time before the act was done - a grant of a freehold estate or a lease (other than a mining lease) was made covering any of the land or waters affected by the act (s 232A(2)(e)(i)).
Area 93 has not been the subject of any prior grant of a freehold estate or a lease other than the original PL 1 issued in 1876 and then only for the period from the grant of the lease until the 1888 excision of the Telegraph Station Reserve.
The question as to the validity of PL 1 arises from the fact that the lease document issued in 1876 (or at least that relating to PL 2 which is presumed to be in identical terms to PL 1) purports to have been granted pursuant to the Waste Lands Act 1857 and the Waste Lands Amendment Act 1865-1866. Section 15 of the Northern Territory Act 1863 provided that save insofar as the 1857 and 1858 Acts were amended "they should be deemed to be incorporated herein, and shall, together with this Act, be read as one Act"; thus, it is said, the source of law for land in the Northern Territory was thereafter the Northern Territory Act 1863, incorporating the unamended provisions of the 1857 and 1858 Acts. The Northern Territory Act did not, unlike the 1857 Act, include any substantive provisions dealing with the leasing of land. On 30 November 1872 the Northern Territory Land Act 1872 was assented to. Section 6 of that Act provided:
6. From and after the coming into operation of this Act, all waste lands in the Northern Territory shall be sold, demised, or otherwise disposed of and dealt with in the manner and subject to the provisions of this Act, and not otherwise.
The term "waste lands" was defined to mean:
All lands in the Northern Territory vested in her Majesty which have not been, or may not hereafter be reserved for, or dedicated to any public purpose, or which have not been granted or lawfully contracted to be granted to any person in fee-simple… s.2.
Leases of waste lands are provided for in s 9 as follows:
9. All leases of waste lands pursuant to the provisions of this Act, shall be made by the Governor in the name and on behalf of her Majesty, and shall be executed in duplicate, whereof one part shall be signed by the Governor, and sealed with the seal of the Province and the other part shall be signed, sealed and delivered by the lessee.
The Act of 1872 provided, inter alia, that the Waste Lands Act (No 5 of 1857-58) and the Waste Lands Amendment Act (No 16 of 1865-66) shall not be of any force or effect whatever in the Northern Territory. The Northern Territory Act 1863 was not the subject of the repeal provisions. For the applicants it is said that whilst it may be that the lessee's right to a grant of the lease may have accrued under an earlier Act, the repeal of the earlier Acts required that any future grant must be made under and in accordance with the terms of the 1872 Act.
Various arguments have been raised by the respondent in reply to the applicants' submissions concerning the invalidity of PL 1 and although as an academic exercise it may be of interest to ponder what rights, if any, Mr Bagot may have legally enjoyed during the many years he occupied and operated his pastoral holding more than a century ago, it would seem that the simple answer to this issue is found in the Native Title Act itself. Section 242(1) provides:
242 (1) The expression lease includes:
(a) a lease enforceable in equity; or
(b) a contract that contains a statement to the effect that it is a lease; or
(c) anything that, at or before the time of its creation, is, for any purpose by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.
The clear intention of the definition of the term lease in the Native Title Act is to avoid the type of theoretical discourse which PL 1 has provoked. If this were not so there would be no purpose in providing a definition which in effect says that if a document is called a lease or is treated as a lease then it is a lease for the purposes of the Act. It cannot be disputed that the document which was the original PL 1 was executed by the parties with the intention of creating a binding legal relationship; it was expressed to be a lease and was treated as such by both parties over a significant period of time. It is not without significance that unlike s 23B, which makes the validity of the acts referred to an express requirement, s 232A(2)(e)(i) does not raise any issue as to validity.
There is no question that PL 1 was a contract which contained a statement to the effect that it was a lease and it was certainly described as a lease. Whether Mr Bagot would have been entitled to enforce his rights as pastoral lessee in equity is a question which it is unnecessary to pursue.
In the result PL 1 must be regarded as a lease for the purposes of the Native Title Act; it follows therefore that the construction of the public work on area 93 which commenced in October 1996 whilst not a previous exclusive possession act, is a category A intermediate period act which is validated by the provisions of the Validation Act which correspond with s 22A of the Native Title Act.
xiii) Areas 99 and 100
The respondent's submission refers to government residences built on lots 7925 and 7926 (areas 99 and 100) which are said to be public works.
Both areas are within the town area of Alice Springs. Area 99 is on the south-east corner of the intersection of Stott Terrace and Hartley Street whilst area 100 is on the south-west corner of the same intersection. Both lots are currently vacant land and both are part of an area declared to be a Heritage Place under the Heritage Conservation Act (NT Gazette 30.6.1993). Lot 100 was formerly wholly within CLT 2686 which is a previous exclusive possession act.
The respondent relies upon the witness statement of Maurice Alfred Johns (exhibit NT 41) who has lived in Alice Springs since 1949 and who between 1949 and 1956 worked for the Commonwealth Department of Works and Housing and between 1956 and 1983 worked for the Animal Industry Division of the Commonwealth Department of the Interior. His evidence is that in 1949 there was a brick residence on the south-east corner of the intersection of Stott Terrace and Hartley Street (area 99) which was occupied successively, until the late 1960s, by two pathologists working for the Animal Industry Division of the Department of the Interior. During the 1970s the residence was occupied as a child care centre or kindergarten for about 5 years. It was demolished during the 1980s. A house on the south-west corner of the intersection (area 100) was for many years occupied by the government surveyor.
In his statement Mr Johns says that he believes that the residence on area 99 was built during the Second World War by the Commonwealth government to house professional employees. Counsel for the applicants objected to this aspect of the evidence, there being no stated basis for the belief. Mr Johns also asserts that there were a number of government constructed and owned houses in the same area as area 99, including the house on the south-west corner (area 100). This latter statement was not objected to.
I am prepared to accept both assertions as probative of the facts asserted. Mr Johns is a former employee of the Department of Works and Housing; the land in question has always been Crown land and in the relevant period it was under the administration of the Commonwealth; the two residences in question are known to have been occupied by professional employees of the Commonwealth. There is sufficient evidence to draw the inference that both residences were constructed by or on behalf of the Crown and that the area of each lot not occupied by the residences was adjacent land.
The whole of each of lots 99 and 100 is affected by a public work.
xiv) Area 106 (Mt Nancy)
There is evidence that there is presently a 20,000 gallon galvanised iron tank and a pipeline on part of area 106; and further that during World War II an army camp was constructed (at least in part) on the same area of land. The respondent submits that all of these structures, together with an area of adjacent land within a fence identified in document 467 in exhibit NT 15 are public works.
The army buildings have long since been removed and given the temporary purpose for which they were established they cannot be treated as having been fixtures. The tank which is no longer in use, does not appear to be fixed to the ground and given the nature of its construction (galvanised iron), could not reasonably be regarded as having been intended as a permanent structure. The pipeline running from the tank is above the ground and does not appear to be fixed in any way. There is no evidence that either the tank, the pipeline or a former pumphouse in the same area was constructed by or on behalf of the Crown or any other relevant authority.
During the period from 1949 to 1973 a significant portion of area 106 was covered by a series of miscellaneous leases notably MLs 429, 442 and 483 all of which are previous exclusive possession acts. There is no evidence as to whether the tank in question was on any of the land covered by these leases.
It has not been shown that area 106 is affected by a public work.
xv) Water Resources
The respondent submits that the area of land and waters necessary for or incidental to the operation of current production bores, current maintenance bores, gauging stations, rainfall stations and certain roads and tracks required for access to and maintenance of those works are public works. Each of areas 1, 3, 13, 14, 15, 17, 28, 30, 38, 87, 133, 134, 142, 166 and 167 is said to contain one or more bores.
A production bore is without doubt a "bore for obtaining water" and fits precisely within the definition of public work. Those bores which are referred to in the respondent's submission as "maintenance bores" are presumed to be the same as bores described in the evidence as "monitoring bores" which are used to monitor the level of water tables. The applicants argue that monitoring bores are not "bores for obtaining water" which is a superficially attractive argument which does not withstand scrutiny. A monitoring bore is a necessary adjunct of the process of obtaining water for human consumption and can properly be regarded as having been established for the purpose of obtaining water. In any event, the production bores and the monitoring bores are established in the same general vicinity and the land occupied by the monitoring bores is part of the area of land necessary for or incidental to the operation of the public work.
On area 1 there are 49 monitoring bores and 29 production bores all of which are situated within an area known as the "Roe Creek Borefield". The applicants have presented a lengthy and detailed argument aimed at establishing that the borefield on area 1 was invalidly established by reason of the currency of the reservation of the area for quarantine purposes at the time the borefield was established. It would indeed be a remarkable result to find that the major source of water for domestic consumption in Alice Springs is tainted with the kind of illegality suggested by the applicants but be that as it may, it is unnecessary to pursue the debate further in view of the conclusion expressed elsewhere that the reservation of area 1 extinguished native title. The same applies in respect of bores established on area 30 (Arid Zone Research Institute).
Areas 87 and 167 are both in part the subject of previous exclusive possession acts but it is not possible to make any finding as to whether the bores are established on land to which the previous exclusive possession acts relate.
All of the other areas on which bores are established are unalienated Crown land which have not been the subject of previous exclusive possession acts or other extinguishing acts. It may be inferred that there is no issue as to the validity of the establishment of these bores. There is however no evidence upon which to base a description of the area of land which is necessary for or incidental to their establishment and operation.
The operation of a water supply bore necessarily requires that the relevant authority have access to the bore and accordingly such roads or tracks which lead directly to the site of the bore and are used for gaining access to the bore are properly to be regarded as adjacent to the land on which the bore is established.
The question of whether gauging stations and rainfall stations are public works depends upon whether they are to be regarded as a "structure that is a fixture". Section 34 of the Water Act 1992 provides:
34. To enable effective planning for water resource development and environmental protection, it is the duty of the Controller to ensure as far as possible that a continuous program for the assessment of water resources of the Territory is carried out, including the investigation, collection, collation and analysis of data concerning the occurrence, volume, flow, characteristics, quality, flood potential and use of water resources, and for that purpose the Controller may -
a) systematically gauge stream flow, record climatic data and monitor groundwater levels;
(b) construct, operate, repair, maintain, alter and remove gauging, recording and monitoring stations and investigation and monitoring bores;
(c) sample and analyse water and waste; and
(d) co-operate with a State or the Commonwealth in the investigation of water resources which traverse the boundary between the Territory and the State.
and s 35 provides:
35. Where in the performance of the Controller's duty anything is attached to land, it shall be taken not to be -
(a) a fixture to the land for the purpose of giving the owner or occupier of the land a proprietary interest in it; or
(b) an improvement.
Whether or not a particular structure is to be regarded as a fixture will depend upon the context in which that question has to be determined but the general principles are well established and do not need to be recited here.
Section 35 of the Water Act does not, as the applicants seem to suggest, foreclose the issue with respect to structures which are constructed pursuant to s 34. All that s 35 does is to ensure that a structure which otherwise is properly to be regarded as a fixture is not to be so regarded in the circumstance described in paragraph (a). In the context of this proceeding, on the basis of the evidence adduced, no real conclusion can be reached as to the status of the gauging stations and rainfall stations as structures which are fixtures for the purposes of the definition of public work.
xvi) Alice Springs Town Council
Attached to the witness statement of Eugene Herbert Barry, the Director of Planning and Environmental Services of the Alice Springs Town Council (exhibit NT 21), there is a table setting out details of the assets of the Council situated on the claimed land. Mr Barry says that the Council is responsible for the control, management and maintenance of the listed assets, all of which were created prior to 1994. In addition, he says the Council is responsible for areas 13-22 (the bed and banks of the Todd and Charles Rivers) which are cleaned daily at an annual cost of approximately $80,000.
The assets identified in the table include things such as recreation equipment, paths, underground drainage systems with structures, a carpark, concrete foot and cycle paths, roads, public parks, unlined channels, flood retardation basins (some with channels), laneways, and a "letter box" pit.
The respondent submits that all of the assets cited in the witness statement, including adjacent areas, are public works. Further, it is said that where any of the listed works are located within a park, the entire area of the park is necessary for, or incidental to, the operation of the public works.
It is difficult from the brief descriptions contained in the attachment to Mr Barry's statement to gain a proper appreciation of the real nature of the assets described. There is of course no difficulty with roads, and it may well be inferred that "recreation equipment" would be both a structure and a fixture but apart from that it is difficult to identify which other assets are within the definition of public work. There may be circumstances in which a carpark may be treated as part of a road and it may also be that the construction of a flood retardation basin and unlined channels, would involve "major earthworks". No evidence, or argument, has been advanced in support of the proposition that where a public work is located within a park, the entire area of the park is necessary for, or incidental to, the operation of the public work. Nor does the evidence directly address the question of whether the assets were constructed or established by or on behalf of the Crown, a local government body or other statutory authority although in the circumstances it may be open to infer that they were so constructed or established.
It is not possible to make any meaningful finding as to the status of the assets referred to in Mr Barry's statement or as to the relevant adjacent areas of such of those assets as may be found to be public works.
xvii) Department of Transport and Works
The witness statement of Geoffrey Alexander Christensen, the Regional Manager, Transport Division of the NT Department of Transport and Works (exhibit NT 23) identifies a number of assets on the claimed land which are maintained by his department. The statement (para. 3) refers to a number of photographs (which are in evidence) which relate to:
a) The carpark at the Alice Springs Telegraph Station Historical Reserve ;
b) The access road to the Alice Springs Historical Reserve (from the entrance gate to the carpark areas);
c) The carpark at the Alice Springs Desert Park;
d) The access road to the Alice Springs Desert Park from Larapinta Drive to the carpark;
e) Undoolya Road (to the boundary of Undoolya Station); and
f) Stott Terrace.
In addition Mr Christensen's statement refers to photographs of other assets which the Department of Transport and Works was involved in creating or maintaining in the past but for which it no longer has primary responsibility. Such assets include roads, buildings, channels and recreation areas that are now the primary responsibility of other government departments or agencies.
The respondent submits that all of the works mentioned in Mr Christensen's evidence as works maintained or previously maintained by the Department of Transport and Works are public works.
To the extent that reference is made in paragraph 3 of the statement to roads, the applicants accept that the assets described are public works but they do not accept that the carpark is a public road. In particular reference is made to the carpark at the Alice Springs Telegraph Station Historical Reserve. This site was visited by the Court during the hearing. The carpark in question is not readily distinguishable from a road in that it consists of a series of branches from the access road which are sufficiently wide to permit the parking of motor vehicles on either side. Each branch is open ended so that vehicles may be driven in from one end and may exit from the other. There are also numerous parking bays immediately adjacent to the road itself. If the distinguishing characteristic of a road is that it be available to the public for the passage thereon of people and vehicles it would seem that the carpark at the Alice Springs Telegraph Station Historical Reserve is a road, and is accordingly a public work. The same considerations apply in respect of the carpark at the Alice Springs Desert Park.
xviii) Parks and Wildlife Commission
The Parks and Wildlife Commission of the Northern Territory (PWCNT) manages Crown land set aside by reservation for conservation and like purposes and land held by the Conservation Land Corporation under the Territory Parks and Wildlife Conservation Act, the Bushfires Act and the Parks and Wildlife Commission Act. It also manages protected areas under s 22 of the Territory Parks and Wildlife Conservation Act. In addition it has a role in the joint management of other areas of land pursuant to s 73 and s 74. According to the evidence (notably the witness statement of Kenneth Alan Johnson which is exhibit NT 27) the PWCNT manages the following areas affected by the application in this proceeding:
a) The Alice Springs Desert Park (Area 28);
b) The Alice Springs Telegraph Station Historical Reserve and extension area (Areas 5, 6, 10, 11, 25 and 26);
c) The West Macdonnell National Park (Area 24);
d) The Kuyunba Conservation Reserve (Areas 2 and 3);
e) The Ilparpa Wildlife Protected Area (Areas 133, 134, 151, 152 and 154);
f) The Joint Geological and Geophysical Wildlife Protected Area (Areas 9 and 12);
g) PWCNT Regional Office at the AZRI (Area 30).
Within each area the PWCNT manages a range of assets. The evidence concerning these assets, which is extensive, is detailed in Mr Johnson's initial statement (exhibit NT 27) and a supplementary statement (exhibit NT 27.1). The respondent submits that all those physical things the responsibility of the PWCNT mentioned or depicted in Mr Johnson's statements excluding the Herbarium, fences and roads described in exhibit 27.1, are public works.
The extent of the claims made and the responses of the applicants are such that little purpose will be served by examining each in detail, particularly as in a number of cases both parties rely upon photographs and maps as descriptive of their submissions. In the circumstances the Court's findings are stated without detailed reasoning. They are:
a) All buildings and structures within the Alice Springs Desert Park were constructed by or on behalf of the Crown in some capacity and (with one exception) were established, or at least commenced, during the period 1 January 1994 to 23 December 1996 at a time when the land was covered by CLP 1116. The sole exception is the Herbarium which was not commenced until 1997. Apart from the Herbarium all of the buildings and structures within the park which are fixtures, and all roads (including the carpark) are public works which are for the purposes of the Native Title Act category A intermediate period acts. The public works in question include relevant adjacent land but on the available evidence it is not possible to define such adjacent land with any precision. There is no evidence to support the respondent's proposition that the whole of the land and waters within the chain mesh fencing surrounding the core area of the park is adjacent land.
b) In respect of works established on the Alice Springs Telegraph Station Historical Reserve, the extension area and the West Macdonnell National Park, the Court accepts the analysis set out in paragraphs 4.1, 4.2 and 4.3 of the applicants' February 1999 submission which describes the works which are conceded to be public works by reference to Attachments 2 and 3A to their submission.
c) The only public works on the Kuyunba Conservation Reserve are bores (both production and monitoring) together with relevant adjacent land.
d) There are no public works within the Ilparpa Wildlife Protected Area .
e) There is no evidence of any public works within the Joint Geological and Geophysical Reserve.
f) The status of the land which comprises the Arid Zone Research Institute is dealt with separately elsewhere in these reasons.
xix) Department of Primary Industries and Fisheries
The Department of Primary Industries and Fisheries has responsibility for areas 29 and 30 (Arid Zone Research Institute) and area 1 (Quarantine Reserve). There are numerous buildings and structures which are fixtures on each area as well as some bores for obtaining water. In view of the conclusions expressed elsewhere in these reasons it is unnecessary to deal with the precise details of the public works established on the areas in question.
xx) Power and Water Authority
The witness statement of Jean Luc Revel (exhibit NT 33) identifies the assets of PAWA in respect of 96 of the 166 areas the subject of the proceeding. The assets are generally classified under the headings of electricity assets, water assets and sewer assets.
The respondent says that all of the assets identified (other than HV Electricity Substation 8454 on area 93, which was constructed in 1997) are public works. Relevant adjacent land is claimed to be:
i) Sealed and unsealed roads required for access to and maintenance of the public works referred to;
ii) The whole of the area of land and waters within the fencing on area 34. (PAWA has freehold title to area 34);
iii) The whole of the area of land and waters within the fencing and natural barriers around the Roe Creek Borefield (area 1);
iv) The whole of the area of land and waters within the fencing surrounding the Carmichael Water Tank (area 56);
v) The area of land and waters that is or was necessary for, or incidental to, the operation of the Sadadeen Water Tank and access road (area 145);
vi) The whole of the area of land and waters within the fencing surrounding the sewerage ponds on area 133.
All of the works as described appear to be public works within the definition in s 253 of the Native Title Act. Many of them are in fact established on areas which have been subject to previous exclusive possession acts and other past acts which have an extinguishing effect. So far as the claimed areas of adjacent land are concerned, it is obvious that access by road or track is required for both the establishment and the operation of the works. The operation of a public work necessarily requires that the work be maintained and the operation of works such as water supply facilities and sewerage ponds requires that the works be kept secure from unauthorised outside interference and in the absence of any evidence requiring a contrary conclusion it is open to infer that in the case of works of that type which are fenced, the whole of the land and waters within the fencing, being land and waters immediately adjacent to the works, should be treated as adjacent land for the purposes of s 251D.
xxi) Police, Pound and Commonage Reserves
Reference is made later in these reasons to a series of reservations made for police, pound and commonage purposes. Exhibit NT 18, a document entitled "Background History to the Alice Springs Police Pound and Commonage Reserves - May 1997", concludes with these observations:
The area of land under discussion in this brief history had been used for public purposes since the first proclamation for use for the police department in 1921. While the areas of land initially reserved were regazetted over time, or areas were swapped around to accommodate changing circumstances, there was little fundamental change in the use and tenure of the land.
Apart from the land being reserved for specific purposes, the main focus of the archival documents on which this history is based rests with the insight into the European use of the land. This did not change markedly in the type of use over the years, but the documents indicate that there was extensive use involving the storage of cattle and associated activities such as the supply of water, which led to storage facilities such as pens, fences and ramps. There was evidence of one 'camp' consisting of buildings, otherwise the presence of dwellings was minimal. The area also contained the town garbage and sewerage works, the position of which changed over time.
The respondent submits that native title is extinguished by -
The works described in Exhibit NT 18 and associated source documents (police, pound and commonage reserves, etc) including the following -
(a) The whole of the area of land and waters within the fencing and natural barriers in the commonage, police and pound reserves identified in Exhibit NT 18 on Claim Nos 28, 37, 38, 39, 44, 65, 133, 134, 151, 152, 155, 161, 162, 163, 164, 165, 166 and 168.
(b) The whole of the area of land and waters reserved within the sanitary (Claim No 134) and garbage (Claim No 28) reserves identified in Exhibit NT 18.
(The applicants have pointed out that area 166 was not affected by any of the reserves).
The applicants' document "Supplementary Submission of Applicants : Public Works" dated 5 February 1999 contains (in Table 2) an exhaustive analysis of the works said to constitute public works within the various areas affected by the former reserves. The applicants' general approach is summarised in paragraph 14.6 of the submission in these terms:
The First Respondent asserts, without reference to the evidence, that the area the use of which was necessary for or incidental to the operation of the works described in Ex NT 18 and associated source documents is the whole of the land within the fencing and natural barriers in the commonage police and pound reserves. What is apparent from the documents is that there was never any concerted or extensive development of infrastructure ("works") on the lands concerned for the purposes for which it was reserved. Accordingly, to the extent that there were any public works on the reserves it cannot be said that all of the lands surrounding them and enclosed by the fencing and natural barriers referred to in the documents was necessary for or incidental to the operation of those works. As previously noted, the area of land on which a work is situated is not relevant for the purposes of s 251D. Furthermore, as appears from Table 2 it is not possible to fix with any certainty the location of many of the works identified in the documents. They may not have been on claimed land at all.
The applicants' submission on this issue is persuasive. It is not possible from the evidence to make any meaningful finding in relation to the establishment of any public works within the areas formerly covered by the police, pound and commonage reserves or as to any adjacent land. Similarly, there is no evidence to support the respondent's contention that any works that may have been established on either the sanitary reserve or the garbage reserve were public works for the purposes of the Native Title Act.
xxii) Alice Springs Telegraph Telegraph Station Reserve, other Reserves and the Seismic Array Facility
The respondent submits that the works described and/or depicted in Exhibit NT 15, documents 3-53 (the Alice Springs Telegraph Station Reserve), and documents 54-123 (other reserves and the seismic array facility) are public works.
It is unhelpful to simply refer to works "described and/or depicted in" a total of 124 separate documents in the expectation that the Court will be able to discern not only the nature of any buildings structures and other works which may fit the definition of a public work and the authority by which they were established, but also to assess what land and waters are to be treated as adjacent land. In the circumstances it is not possible to make any meaningful finding in relation to this submission.
It should be observed that following an agreement between the applicants and the Commonwealth, the applicants have recognised the interests of the Commonwealth in relation to areas 9 and 12 (the reserve for long term geological and geophysical research) and the Commonwealth has agreed that it would not rely upon the seismic monitoring installations in those areas as extinguishing native title (affidavit of Christopher Mark Athanastiou, Exhibit A 69).
xxiii) Reserve for Military Defence
Reference is made later in these reasons to a reservation for military defence (Reserve 888) which was proclaimed in 1938 and revoked in 1984. The respondent submits that a large number and variety of works depicted in certain aerial photographs which are in evidence are public works and that the whole of the area of the former reserve is adjacent land. In response the applicants say -
The works which the First Respondent maintains are public works have not been particularised and with the exception of roads, the location of such works if any, cannot be identified on the photographs. Furthermore, there is no evidence that any works depicted on the aerial photographs were constructed by or on behalf of the Crown, a local government body or a statutory authority.
To the extent that there are public works on any land formerly within the reserve for military defence there is no evidence which could lead to the conclusion that the whole of the area was necessary for or incidental to the operation of such works.
A view which I entirely endorse.
xxiv) Closed Roads
The respondent says that there are a number of roads and areas of land which were previously roads within the claimed land. As to the latter, eleven such areas are identified and copies of the relevant Gazette notices closing the roads in question are in evidence.
It is the respondent's case that by virtue of s 7 of the Control of Roads Act (formerly the Control of Roads Ordinance) all roads in the Northern Territory are the property of and are vested in the Territory. The Control of Roads Act defines the term "road" to mean:
(a) all streets, roads, courts, alleys, thoroughfares and culs-de-sac which were, immediately before the date when this Act comes into operation, public streets, roads, courts, alleys, thoroughfares, or culs-de-sac within the meaning of any law then in force in the Northern Territory; and
…
(c) land which, whether before or after the date when this Act comes into operation and whether within the limits of a mineral or gold field proclaimed under the Mining Act, or otherwise -
(i) is proclaimed, dedicated, resumed or otherwise established as a public street, road or thoroughfare;
(ii) is opened as a road or is declared to be a road by the Minister pursuant to this Act;
(iii) is reserved or left as a road in a sub-division of Crown land;
(iv) is conveyed or transferred to the Territory in fee simple and is accepted by the Territory as a road; or
(v) not being Crown land leased for purposes which include the construction of a road at the expense of the lessee, is used as a thoroughfare passing through or over Crown land whether alienated or otherwise.
The Native Title Act definition of public work includes a road that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any capacity. It is patent that not all "roads" under the Control of Roads Act will be public works under the Native Title Act. For example, land which has been left as a road in a sub-division of Crown land is a road under the Control of Roads Act (s 7(c)(iii)) but unless and until a road is constructed on that land by or on behalf of the Crown or other relevant authority, the land will not be a public work. It necessarily follows that by simply providing evidence of the closure of a road under the Control of Roads Act, the respondent cannot hope to assert that the land in question has been affected by a public work. Evidence of the construction of a road by or on behalf of the appropriate authority is needed. In the instances referred to by the respondent there is no evidence before the Court from which it can find that any of the closed roads were or are public works.
There is the further question as to whether the vesting of closed roads in question in the Territory pursuant to s 7 of the Control of Roads Act is a previous exclusive possession act. Section 23B(3) of the Native Title Act provides that the vesting of land by or under State or Territory legislation is taken to be the vesting of a freehold estate over the land for the purposes of s 23B(2)(c)(ii) if a right of exclusive possession of the land is expressly or impliedly conferred by or under the legislation. Given the very broad definition of "road" in the Control of Roads Act, and absent any express provision conferring a right of exclusive possession on the Territory in respect of land vested pursuant to s 7, there is no express or implied basis to conclude that such a right is conferred by the legislation. Nor does s 23(9C) assist the respondent's argument. The vesting of land in the Territory pursuant to s 7 of the Control of Roads Act is not in itself inconsistent with native title.
There is therefore no basis to assert that apart from the Native Title Act the vesting extinguishes native title.
GRAZING , OCCUPATION and MISCELLANEOUS LICENCES
99. The respondent identifies four categories of licences which are said to extinguish native title rights and interests. Three of the categories namely grazing, occupation and miscellaneous licences are derived from the provisions of the various Crown Lands Ordinances and can conveniently be dealt with together although each has its own distinguishing features. The fourth category, a pipeline licence granted under the Energy Pipelines Act 1981,will be dealt with separately.
100. In the period from 1941 to 1968 a total of 24 grazing licences were granted over parts of the claimed land pursuant to s 107 of the Crown Lands Ordinance 1931. All have since expired. Section 107(1) provided:
107 (1). The Administrator or any person thereto authorised by the Administrator may, under and subject to the regulations, grant licences to persons to graze stock or any particular kind of stock, on any Crown lands [which are not held under a lease or licence granted under this or any other Ordinance] or on any reserved or dedicated lands, for such period not exceeding one year, as is prescribed.
(The words in parenthesis were added by Ordinance No 4 of 1955)
At relevant times the Crown Lands Regulations made pursuant to s 131 of the Ordinance contained the following provisions:
70. All grazing licences shall commence on the first day of the month following the date on which the application was granted, and shall remain in force until the 30th day of June in the year following, unless sooner surrendered, forfeited or cancelled.
71.(1) No improvements whatever shall be made on the area included in any grazing licence without the written consent of the [Administrator], and no claim for compensation may be made for improvements not approved by the [Administrator].
(2) Any improvements made on any grazing licence and approved by the [Administrator] shall be taken into consideration when the area included in the licence is being allotted as a pastoral lease.
72. (1) Where any licensee fails to comply with any term or condition of his licence, the [Administrator] may inform the licensee of such default, or by notice in the Gazette declare the licence is forfeited and the licence shall thereupon be and become forfeited.
(2) The [Administrator] may, at any time on giving the licensee three months' notice, cancel a grazing licence.
73. (1) Grazing licences may, at the discretion of the [Administrator] be renewed from time to time for a period not exceeding twelve months.
(2) Any holder of a grazing licence may make application for renewal on or before the thirty-first day of July immediately following the date of expiry of the licence.
In 1956 the Ordinance was amended by the addition of a new s 107A which provided that a licensee could apply to the Administrator for permission to make or erect specified improvements and that such permission could be granted or refused in the absolute discretion of the Administrator. Provision was also made for the payment of compensation for improvements in some circumstances.
101. Ninety-five occupation licences were granted under s 108 of the Crown Lands Ordinance 1931in respect of parts of the claim area and a further 7 were granted under s 90 ofthe Crown Lands Act 1992. The last licence expired on 31 December 1997. As there is a slight variation in the sections under which these licences were granted their respective terms are set out below. Section 108 of the Crown Lands Act 1931 provided:
108.(1) The Administrator or any person thereto authorized by the Administrator may, under and subject to the regulations, grant a licence to any person to occupy any particular Crown lands for the purpose of drying or curing fish or for any manufacturing or industrial purpose or for any other purpose prescribed.
(2) Licences granted in pursuance of this section may be for such period as is prescribed, but such period shall not exceed five years.
[Prior to 1938 the issuing authority was the Board rather than the Administrator. In 1975 the section was amended to permit the granting of licences "for such purposes as the Administrator thinks fit"].
Section 90 of the Crown Lands Act 1992 now provides:
90.(1) The Minister may, under and subject to the Regulations, grant a licence to a person to occupy particular Crown lands for such purposes as the Minister thinks fit.
(2) Licences granted in pursuance of subsection (1) may be for such period not exceeding 5 years as is prescribed.
102. The Crown Lands Regulations, which remained substantially unchanged from 1931 to 1992, provided:
75. In addition to the purposes specified in section 108 of the Ordinance an occupation licence may be granted for recreation or garden purposes. [Subject to the Ordinance and these Regulations, an occupation licence may be granted on such conditions as the Administrator necessary or desirable and are specified in the licence]
(The words in parenthesis were added by Ordinance No 3 of 1958).
78. The land included in an occupation licence shall be used only for the purpose for which it is granted.
82.(1) The period of an occupation licence shall in the first instance be 12 months.
(2) The licence may be renewed annually, but so that the total period of the licence shall not exceed five years.
83.(1) Where any licensee fails to comply with any term or condition of his licence, the [Administrator] may inform the licensee of such default and the licence shall thereupon be and become forfeited.
(2) The [Administrator] may cancel an occupation licence on giving the licensee three months' notice.
86.(1) The [Administrator] may grant permission to the holder of an occupation licence issued under the Ordinance to erect any building or machinery on the area included in a licence which, in the opinion of the [Administrator], is necessary for carrying out the purposes of the licence, [but the Crown shall not be liable for any compensation whatever in respect of the building or machinery].
(The words in parenthesis were deleted by Ordinance No 7 of 1962).
(2) At the expiry or sooner determination of the licence, and provided all moneys due to the Crown in respect thereof have been paid in full, the licensee may remove any building or machinery erected by him on the land formerly included in the licence: Provided that any building or machinery remaining on the land formerly included in the licence after three months from the determination of the licence shall become the property of the Crown.
(Sub-regulation (2) was omitted by Ordinance No 7 of 1962 and the following sub-regulation substituted).
(2) At any time before, or within three months after, the expiration of the licence or its sooner determination (whether by forfeiture, cancellation or otherwise), the Administrator may, in his absolute discretion, grant permission to the licensee to take down, remove and carry away, either before the expiration or sooner determination of the licence or before such date after the expiration or determination as the Administrator considers reasonable, any building or machinery which the licensee has erected or set upon the land included or formerly included in the licence.
Sub-regulation (3) provided that if the Administrator did not give permission to the lessee to take down, remove and carry away the buildings or machinery erected under sub-regulation (1) the licensee was entitled to be paid compensation for the value of the buildings or machinery. Under sub-regulation (4), if the licensee erected buildings or machinery without permission granted in accordance with sub-regulation (1) and the Administrator did not give permission to the lessee to take down, remove and carry away the buildings or machinery, the Administrator might in his absolute discretion pay the licensee the value of the improvements. Sub-regulation (5) provided:
The Administrator shall not pay to the licensee the value of any building or machinery which, in the opinion of the Administrator, is not capable of being taken down, removed and carried away.
In 1979 regulation 86 was amended by replacing the expression building or machinery with the words building, machinery, equipment or any other improvement.
The regulations under the Crown Lands Act 1992 provide that:
26. Subject to the Act and these Regulations, an occupation licence may be granted on such conditions as the Minister considers necessary or desirable and are specified in the licence.
The land included in an occupation licence may only be used for the purpose for which it is granted (r 29) and the Minister in his or her discretion is to fix the area to be included in a licence (r 31). The initial period of a licence is twelve months but it may be extended from time to time, but not so that the total period of the licence exceeds five years (r 32). Regulation 33 provides:
33.(1) It is a condition of an occupation licence that the holder of the licence shall not erect or set up on the land included in the licence any building, machinery, equipment or other improvement except where the Minister, being of the opinion that such an improvement is necessary for the purposes of the licence, has granted prior permission in writing to him or her to do so.
(2) The permission of the Minister referred to in sub-regulation (1) may be subject to such terms as the Minister thinks fit in relation to the taking down, removal and carrying away of the building, machinery, equipment or other improvement and the payment or otherwise of an amount to the holder of the licence as compensation for such an improvement not capable of being taken down, removed or carried away or which the Minister does not permit to be taken down, removed or carried away.
If a licensee fails to comply with any term or condition of the licence, the Minister may inform the holder of the default and the licence is thereupon forfeited (r 35).
103. In the period from 1931 to 1974 a total of 171 miscellaneous licences were issued under either the Crown Lands Ordinance 1927 (Central Australia)or the Crown Lands Ordinance 1931in respect of land within the general vicinity of Alice Springs but not all affected the claimed land.