Consideration of issue 3
147 The applicants submitted that the Northern Territory and the Pastoralists' case was, at best, based on a potential conflict in activity of the same kind rejected by a Full Court in Alyawarr. Further, it was submitted that even if the conflict did arise in the future, it would be solved under s 23G(1)(a) of the NTA which provides that the granted rights prevail over but do not extinguish native title to the extent that they are not inconsistent with them.
148 Ultimately, the applicants accepted that I was bound to give effect to the reasoning of the Full Court in De Rose (No 2) even though, it was submitted, there was a tension between the Full Court's judgment and the judgment of the High Court in Ward HC. The Full Court in De Rose (No 2) said (at [157]):
The result is that native title rights and interests over De Rose Hill Station have been extinguished in relation to the specific areas of land on which the improvements authorised by the leases have been constructed. The previous non-exclusive possession acts (namely the grants of the leases) gave the lessees rights which, when exercised, were inconsistent with native title rights and interests over De Rose Hill Station.
149 Having regard to the judgment of the Full Court, the applicants accepted that when certain improvements were lawfully made on leasehold land, native title rights were extinguished on the land on which each improvement was made, though this concession was qualified in several ways. It is convenient to discuss separately the issues which included some matters of detail about how the determination should be expressed.
150 The first and probably most significant issue concerns the particular class of improvements to which the concession just discussed applies. The applicants accepted, on the basis of De Rose (No 2), that subject to other qualifications, improvements in the form of a homestead or house, sheds, buildings, bores, turkey nests, squatters' tanks, constructed dams or other constructed stock watering points, and certain airstrips, can be treated as having extinguished all native title rights in the land on which they were situated. The airstrips in relation to which the concession was made were the homestead and highway airstrips. No such concession was made in relation to other improvements, namely other airstrips, roads, tracks, laneways, mustering routes and cattle yards of various types (including those described as stockyards, trap yards, drafting yards and holding paddocks, though some of these expressions were said by the applicants to have been used interchangeably).
151 It is unnecessary to refer to the statutory provisions which create the fabric for this discussion as they are in relevantly the same terms as those considered by the Full Court in De Rose (No 2). Certainly no submission to the contrary was made. The reasoning of the Full Court indicates that it is necessary to identify the native title rights and interests (at [146]), then to ascertain rights conferred by the leases (at [147]), and finally to determine whether their conferral is inconsistent with the continued existence of the established native title rights (at [148] and following). This last step can involve a consideration of the nature of the right conferred by the lease having regard to the manner in which it can be exercised (at [149]) and, additionally, how it has been exercised in order to identify the areas of land in respect of which native title rights have been extinguished (at [150] and [157]).
152 In applying this approach, the Full Court in De Rose (No 2) did not disturb the conclusion of the trial judge that improvements in the nature of fences and roads did not extinguish native title (at [124]). However, having regard to clause 6 of the draft determination in Appendix A to the reasons for judgment (and the determination as finally made) in that matter, this may not have been an issue in the appeal, as was submitted by the Pastoralists in these proceedings (see [18] and [127] of the Full Court's reasons). While it was not a matter explicitly referred to by the Full Court, the primary judge did not conclude (as reflected in the determination he made and also reflected in the determination made by the Full Court) that areas on which cattle yards were constructed were areas in which native title had been extinguished. One explanation for this is that those yards were associated with watering points which were areas in which native title had been extinguished. It should also be noted that the determination of the Full Court treated native title rights as extinguished on airstrips.
153 While there was a measure of disagreement between the parties concerning the rights conferred from time to time under the pastoral leases (or enabling legislation including regulations) to make improvements to the leased land, the applicants did not dispute that as a result of express covenants in the leases, the enabling legislation (including regulations) or by implication, rights were conferred on the pastoral lessees to construct, maintain and use stockyards and trap yards (and the other contentious improvements, namely airstrips (other than the homestead and highway airstrips) and pastoral roads, tracks, laneways and mustering routes.
154 It should be noted that in their written submissions, the applicants referred in some detail to the reservation in the leases, variously expressed over time in favour of Aboriginal people and contended that the reservation did qualify or limit the rights held under lease. However, I did not understand the applicants to submit that these reservations operated in the applicants' favour in a way which derogated from or qualified the pastoralists' right to construct improvements. Indeed during final submissions on 31 July 2006, counsel for the applicants said that the reservations were irrelevant to the issue of extinguishment. Accordingly, I proceed on the basis that the improvements in issue have been constructed and are maintained and used in exercise of rights conferred on the Pastoralists to so construct, maintain and use them.
155 I first consider the position of the stockyards, trap yards, drafting yards and holding paddocks. Having regard to the competing draft determinations in this matter it is only necessary to consider yards described as stockyards or trap yards (which are the yards referred to in the Pastoralists' draft determination where it was said that extinguishment had occurred). Generally, I accept the evidence of Mr Warriner, earlier summarised, concerning these and other improvements on Newcastle Waters station.
156 In my opinion, all native title rights established by the applicants have been extinguished by the grant of the right to construct stockyards and trap yards and the exercise of that right and are extinguished on the areas on which they have been constructed. To paraphrase the observations of the Full Court in De Rose (No 2) (at [149]) directed to a dwelling house or storage sheds, it is hard to see how the native title holders right to gain access to the land or hunt anywhere on the land in a traditional manner could co-exist with the lessees' rights to construct and use stockyards and trap yards. They are created for the specific purpose of housing cattle. While their use for this purpose may only be periodic or intermittent, this right to use together with the exercise of the right to construct is inconsistent with an temporally unconstrained right to travel over, move about and have access to the land as well as to hunt, to use the natural resources and live and camp (and the other native title rights referred to elsewhere).
157 It is convenient to deal with airstrips (other than the homestead and highway airstrips) roads, tracks, laneways and mustering routes together as, in my opinion, they are conceptually similar. I will refer to the airstrips here in question as the "trap yard airstrips" and to the roads, tracks, laneways and mustering routes collectively as "pastoral roads". I accept Mr Warriner's evidence that airstrips were located at each set of yards and that it was necessary to keep them clear. I also accept his evidence about the location and use of pastoral roads on Newcastle Waters station.
158 The following observations were made by the trial judge concerning airstrips and roads in De Rose v South Australia [2002] FCA 1342 (at [558]), the proceedings culminating in De Rose (No 2):
...I do not see how improvements such as fences and roads would wholly, or even partially, extinguish native title; they are clear examples of improvements which are capable of joint use. Airstrips represent a particular problem because of issues of safety. Because of that factor, I would deny the claimants all rights of access with a buffer zone of 500 metres. In respect of airstrips and their buffer zones, native title has been extinguished.
159 This reasoning must, of course, be tested against the approach determined by the Full Court in the appeal from that judgment. It is doubtless true that many of the native title rights arising in this matter (except, perhaps, the right to live and camp including to erect shelters) can be exercised on land on which an airstrip or road has been constructed. While it is possible that the exercise of those rights might conflict with the use of an airstrip or road (for example, hunting on the airstrip or road when a plane is landing or vehicle passing by), it could reasonably be expected that such circumstances would be rare. However, as I apprehend the reasons of the Full Court in De Rose (No 2), based, as they were, on High Court authority, it is important to focus ultimately on the competing and potentially inconsistent rights of pastoralists (and their exercise) and native title right holders and not merely on whether land can be used simultaneously by both in exercise of those rights.
160 If I was satisfied on the evidence that the trap yard airstrips and pastoral roads were constructed, in the sense discussed by the Full Court in De Rose (No 2), in exercise of rights conferred by the leases, then it would appear to follow from the reasons of the Full Court, that their construction in exercise of those rights probably extinguished all native title rights on the land on which they were constructed. However, the evidence to which I was referred does not enable me to conclude that there was such construction. If it be the fact (and this is not established one way or the other by this evidence) that the trap yard airstrips were nothing more than naturally flat land cleared of vegetation and the roads were nothing more than navigable land over which vehicles have continuously driven, then probably neither could be said to have been constructed. If it be the fact (and this is not established one way or the other by this evidence) that either the trap yard airstrips or the pastoral roads (or some of them) had been graded and formed then it may be possible to say they have been constructed in exercise of rights conferred by the lease. Given the paucity of the evidence I am unable to conclude that native title rights have been extinguished on land on which trap yard airstrips and pastoral roads presently exist on the claim area.
161 The next issue concerns land adjacent to the improvements. The applicants conceded that where native title had been extinguished on land due to the construction of an improvement on that land, native title would also be extinguished on adjacent land, the exclusive use of which was necessary for the enjoyment of the improvement. The applicants proposed a regime, to be incorporated in the determination, which involved identifying the land adjacent to improvements in general terms and the creation of a liberty to apply:
to establish the precise location of the boundaries of land on which the improvements referred to at Schedule D to this determination have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements.
162 The Pastoralists contended that such an order should be expressed consistently with [166] of De Rose (No 2), not by reference to "exclusive use", and similarly, that the reference to the buffer zone or adjacent areas in the determination should be expressed in the same way. Where the evidence permitted a finding about the adjacent area needed to permit enjoyment of the improvement, the Pastoralists submitted that that should be reflected in the determination though they appeared to accept that, as an alternative, findings could be made in the reasons for judgment identifying the adjacent area in relation to those improvements addressed by the evidence.
163 In De Rose (No 2) the Full Court discussed, comparatively briefly, the question of "buffer zones". The Full Court said (at [166]-[167]):
...As was said in Ward (HC), the grant of a right (in this case to erect or construct improvements) carries with it those rights necessary for its meaningful exercise (at [308]). On this basis, the native title rights and interests are extinguished over the land on which the improvements are constructed and any adjacent land the use of which is reasonably necessary for or incidental to the operation or enjoyment of the improvements.
It will be noted that this formulation is similar to that adopted by s 251D of the NTA. However, the reason for employing that formulation is not that it is to be found in the NTA. Rather, the formulation gives effect to the principle expressed in Ward (HC). It follows that it is not appropriate to incorporate into the determination a buffer zone ascertained by reference to the dimensions that happened to be specified, for other purposes, in the [South Australian law concerning pastoral leases]. (emphasis added)
164 In the draft determination appended to the Full Court's reasons for decision (a draft proposed by the State of South Australia), the formulation concerning adjacent areas as "the exclusive use of which is necessary for the enjoyment…". This is the formulation in the determination ultimately made by the Full Court. In this matter, as mentioned earlier, the Pastoralists advocated the adoption of the formulation in the reasons. The applicants advocated the adoption of the formulation in the determination. For my part, I doubt that there is a material difference between the formulation in the reasons and the formulation in the determination (except, perhaps, whether one speaks of "use" or "exclusive use" (in the determination)). If something is reasonably necessary, it is necessary. I apprehend that the word "necessary", like the word "unique", gains little by qualification. If anything, the qualifying word "reasonably" might be viewed as a word of limitation (potentially to the Pastoralists' detriment): see Brock v United States of America (2007) 157 FCR 121 (at [107]-[109]). Similarly, if adjacent land is required because its use is incidental to the operation or enjoyment of the improvement, then it can reasonably be said that its use is necessary for the operation or enjoyment of the improvement. In any event, the formulation in the reasons of the Full Court had its origins in the reasons of the majority of the High Court in Ward HC (at [308]) in which only the word "necessary" is used, albeit to ancillary rights for the meaningful exercise of a granted right and not the use of areas of land.
165 While the test propounded by the Full Court in its reasons in De Rose (No 2) did not speak of "exclusive use", the determination did. It can be assumed that the determination of the Full Court truly reflects the Court's intentions. Accordingly, it is appropriate to adopt the formulation used in the determination in De Rose (No 2).
166 I turn to consider whether, and to what extent, the determination should specify the area of adjoining land on which native title rights have been extinguished at least in relation to improvements about which there was some evidence. In their written submissions, the Pastoralists proposed a buffer zone of 2 kilometres around the homestead areas, a buffer zone of 1 kilometre around buildings used for the purpose of accommodating the "stock camp" on Newcastle Waters station, 500 metres for airstrips, 1 kilometre for constructed watering points, 2 kilometres for stockyards and 1 kilometre from trap yards. Other than in the case of the buffer zone around the homestead complex these distances were identified in the evidence of Mr Warriner in relation to the improvements on Newcastle Waters station.
167 To the extent that there was evidence about an appropriate area, it was to the following effect. Mr Warriner said that for safety reasons, you could not land on an airstrip if people (or dogs) were too close and he said that by that, he meant 500 metres. He also observed that you would not put an airstrip near a large community (unless it was fenced, which the homestead airstrip was). As to troughs and other constructed watering points, Mr Warriner said that people can spook cattle and you would not want them near troughs and other watering points. He said the distance depended on the circumstances and the number of cattle using the watering point but that "in most cases" a distance of about 1 kilometre was sufficient. However, he went on to say that if you were dealing with a large mob of cattle at a watering point that had a number of troughs, you might need a couple of kilometres to ensure that there was no disruption. He gave similar evidence about stockyards and trap yards, expressing the conclusion that it was important that people did not come within 1 kilometre of a trap yard and 2 kilometres of a stockyard.
168 I am satisfied this evidence reflects a genuinely held view (which was not challenged in cross examination) and at a level of generality, it is a reasonable view. However, it does not, in my opinion, provide a sufficiently firm evidentiary foundation for me to conclude that in relation to each improvement in the class of improvements about which evidence was given, native title rights have been extinguished in the described area because it is an area necessary for the enjoyment of each improvement in the class. More detailed evidence would be necessary. However, I would provide for the liberty to apply proposed by the applicants so that when (and if) an issue arises about the existence of native title rights in an area surrounding an area on which an improvement has been constructed, quite specific attention can be given to the improvement and what is truly required to ensure that the improvement can be fully and effectively enjoyed by the owner of the lease. No submission was made that the exercise of the liberty to apply would be constrained by s 61 or s 13 of the NTA and I proceed on the basis that it would not.
169 Two further issues can be dealt with together. The applicants submitted that in the section of the determination setting out the areas where native title has been extinguished, the description of the land on which improvements had been constructed should speak of improvements "lawfully [constructed] prior to the date hereof". This proposed clause contains two elements. One is the qualification concerning "lawfulness" and the other concerns when the relevant improvements must have been constructed or made. As the Pastoralists pointed out, there is no evidence that any improvements constructed to date, have been constructed unlawfully. While it may be accepted that an improvement which has not been constructed lawfully might not have extinguished native title, it is, in my opinion, unnecessary to include the word of qualification. In the event that there is an issue about whether any particular improvement was constructed lawfully, liberty to apply can be exercised.
170 Counsel for the Pastoralists equivocated about whether the extinguishing effect of improvements (to be reflected in the determination) concerned only improvements made at the time of the determination. In my opinion it is only such improvements which have that effect. It is the right to construct improvements, when exercised, which has an extinguishing effect:see De Rose (No 2) (at [149] and [156]). This is reflected in the determination made by the Full Court in De Rose (No 2). It is appropriate that I follow the approach of the Full Court. That is, to express the determination in terms of extinguishment by the improvements made at the time of the determination.