Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya... [2005] FCAFC 135 | Case summary

REASONS FOR JUDGMENT The Court: Introduction 1 South east of Tennant Creek in the Northern Territory is an area of land which is the traditional country of Aboriginal people comprising seven landholding estate groups. These are known as the Arrawatyen, Antarrengeny, Keranty, Lyentyawel, Tyaw, Warwepenty and Kelatnyerrang. On 20 November 1995 they lodged an application for a native title determination with the National Native Title Tribunal (the Tribunal). The application covered part of their traditional country. It comprised one large area of over 1,120 square kilometres and a separate area known as the Hatches Creek townsite comprising 27.12 hectares. A sketch of the claim area is Annexure A to these reasons. The Northern Territory proposes to create the Davenport Ranges National Park and an area for tourism and camping in the main section of the claim lands. The townsite, although proclaimed in 1953, has never been developed. 2 All of the areas under claim have been the subject of pastoral lease grants in the past. There is no current pastoral lease on any part of the claim area. However, the Conservation Land Corporation of the Northern Territory (the Corporation) holds a Crown Lease in Perpetuity over the whole of the area except for the old townsite. The Corporation holds that lease so that the land which it covers can be managed by the Conservation Commission of the Northern Territory (the Commission) under the Parks and Wildlife Commission Act (NT). 3 The application was not resolved by mediation and was referred to the Court under s 74 of the Native Title Act 1993 (Cth) (the NT Act) in May 1998. It was heard by Mansfield J in September 2000 and March 2001. Final submissions were lodged on 21 January 2003. It appears that judgment was deferred pending the outcome of the High Court's decisions in the cases known as Ward and Yorta Yorta. His Honour made a determination of native title in favour of the applicants on 23 April 2004. A copy of the determination is Annexure B to these reasons. The Northern Territory has appealed against that determination. It has raised some 56 grounds of appeal but they go to three broad issues. 4 The first issue concerns the proper definition of the native title holders and whether they are the members of one community comprising the seven estate groups or whether the seven estate groups hold their native title rights and interests severally in respect of their various estate areas. There is also a question about the inclusion in the group of persons affiliated by birthplace connections, spousal affiliations and adoption and what, if any, role communal recognition and acceptance of such persons play in determining its membership. 5 The second broad issue relates to the native title rights and interests defined in the determination. The Northern Territory challenges the inclusion of certain native title rights relating to control of access to the land where there are no exclusive native title rights in existence. It also challenges the formulation of other rights on the grounds that they do not relate to the land or are otherwise not cognisable by the common law. 6 The third issue concerns the existence of exclusive native title rights in the Hatches Creek townsite. That depends upon the operation of s 47B of the NT Act which allows prior extinguishment to be disregarded on vacant Crown land if the applicants occupied the land at the time of their application. 7 There are ancillary issues including questions of drafting raised in a cross appeal which seeks to vary some of the determined rights and to add to them. 8 For the reasons that follow, the learned trial judge did not err in defining the native title holders. However rights to control access to the land other than the Hatches Creek townsite should not have been included in the determination given the effects of past pastoral leases in the area. His Honour's finding that s 47B applied to the Hatches Creek townsite and that exclusive rights operated in that area was correct. Some of the native title rights defined by his Honour required variation in minor respects, which are set out below. 9 The overall result is that the applicants hold their native title as a community embracing the seven estate groups. The intramural distribution of native title rights and interests comprising that native title is a matter of allocation according to traditional laws and customs. The membership of the community includes persons recognised as members by virtue of birthplace connection, adoption or spousal affiliation in accordance with traditional laws and customs. The native title holders do not have exclusive rights of the kind which would entitle them to prevent access to the determination area by third parties except in the Hatches Creek townsite. They do however retain a range of rights over the determination area including the right to hunt and fish and use the resources of the land, the right to live on the land and to camp and erect shelters and other structures there. They have the right to engage in cultural activities on the land and to teach its physical and spiritual attributes. They have the right of access to maintain and protect places of importance on the land. They retain the right to share or exchange subsistence and other traditional resources. However this does not extend to a right to trade. In relation to the part of the determination area identified as the town of Hatches Creek, their native title rights and interests are exclusive of the rights and interests of others. The native title determination application 10 The native title determination application, which is the subject of this appeal, was lodged with the Tribunal on 20 November 1995 under the provisions of the NT Act which at that time required applications to be lodged first with the Tribunal and then, following a registration process, to be the subject of mediation by the Tribunal. The application was opposed and was unable to be resolved through mediation. It was referred to the Court pursuant to s 74 of the NT Act on 20 May 1998. Since being referred to the Court the application has been amended pursuant to orders made in July and September 1999 and March 2001. 11 At the time that the application went to trial there were twelve named applicants representing the native title claim group which was described as the 'Alyawarr, Kaytetye, Warumungu, Wakaya Aboriginal People'. They are the first respondents to this appeal but will be referred to as the applicants. The applicants were described in the application as Alyawarr, Kaytetye, Warumungu and Wakaya Family Representatives who hold native title along with all other members of their families. The applicant families were said to encompass and represent the interests of the Alyawarr, Kaytetye, Warumungu, Wakaya and other Aboriginal people with traditional connections in the application area. The application described the native title claim group as comprising seven different sub-groups termed 'land holding groups'. Each was said to be particularly affiliated with land and waters located in different parts of the application area. The names of the seven landholding groups and the applicants associated with each of those landholding groups as appears in the original application were as follows: Arrawatyen Kwentyey (Gordon) Jangala Nappa Lesley Foster Ampetyan Antarrengeny Nita Holmes Akemarr Albert Bailey Akemarr Keranty/Anurret Kwementyey (Peggy) Wickham Apetyarr (referred to by either ofBarry Wickham Apetyarr these names) Lyentyawel Ileparranem Peter Peterson Apetyarr (referred to by either ofAlan Philimac Kngwarrey these names) Tyaw Alan Philimac Kngwarrey Jemima Foster Apetyarr Warwepenty Murphy Jappanangka Jorna Murphy Nappingardi Kelatnyerrang Jimmy Jones Ampetyan There was some transposition of the names of applicants against the estate groups in the judgment but nothing turns on this discrepancy. 12 The claim area comprises two separate areas of land lying to the east of the Stuart Highway and south east of Tennant Creek. The Davenport Ranges and the Murchison Ranges are adjacent to the claim area. The principal claim area comprises land in the Northern Territory Portions 4386 and 4387 and is the subject of Perpetual Lease CLP 1117. Portion 4386 covers 1,120 square kilometres. Portion 4387 comprises 5 hectares and 7,800 square metres. It lies on the edge of Portion 4386 towards its north west extremity. It is proposed that a national park, to be called the Davenport Ranges National Park, will be created in the area covered by Portion 4386 and that the area covered by Portion 4387 will be set aside for tourism and a camping ground. 13 The second claim area comprises 27.12 hectares known as the Hatches Creek Township. It is vacant crown land which was proclaimed and set apart for a proposed townsite in 1953. No township has ever been established there. 14 The applicants describe the general area of the Davenport and Murchison Ranges by the name 'Ithwelepenty'. There are a number of rivers and streams flowing from the Davenport Ranges near the claim area. The Ranges contain reliable sources of water including large streams with intermittent and perennial waterholes. Water reaching the end of the creeks floods into the surrounding desert which provides high value areas for hunting and foraging. The claim area lies within the Tanami Bioregion which is the largest bioregion in the Northern Territory covering almost the entire central area from east to west. According to a Draft Management Plan for the proposed Davenport Range National Park, which Plan was prepared in 1998, the National Park will be the only major protected area within the Bioregion and will be the only major part within the Tennant Creek District. 15 The claim area is surrounded by four pastoral properties and land vested in an Aboriginal Land Trust. Its northern boundary is adjacent to Kurundi Station. The western side is bounded partly by Singleton Station and partly by Murray Downs Station which also adjoins its south western extremities. On the eastern section of its southern border the claim area adjoins Elkedra Station. The eastern section of the area comprises two fingers of land surrounding an area of land owned by the Anurrete Aboriginal Lands Trust. Within that Lands Trust area is the Hatches Creek townsite which comprises the second parcel of the claim. The townsite does not form part of the Anurrete Aboriginal Lands Trust as it could not be claimed under the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act), not being unalienated Crown land within the definition of that term in s 3(1) of the Act. 16 The application disclosed a number of existing grants and interests over all or part of the claimed areas. They included a Crown Lease in Perpetuity 1117 granted to the Corporation pursuant to the Crown Lands Act 1992 from 30 August 1993. The application also acknowledged that on 25 June 1953 the Governor-General had made a proclamation setting apart 67 acres of Crown land as town lands for the proposed township of Hatches Creek. In addition there was a long history of pastoral leasehold grants which had expired and other forms of licences and permits over the lands the subject of the application. 17 Schedule J to the application set out the draft order sought by the applicants. The native title rights and interests which they proposed for recognition were as follows: (a) To possess, occupy, use and enjoy the application area. (b) To speak for and to make decisions about the use and enjoyment of the application area. (c) To reside upon and otherwise to have access to and within the application area. (d) To control the access of others to the application area. (e) To use and enjoy the resources of the application area. (f) To control the use and enjoyment of others of the resources of the application area. (g) To share, exchange and/or trade resources derived on and from the application area. (h) To maintain and protect places of importance under traditional laws, customs and practices in the application area. (i) To maintain, protect, prevent the misuse of and transmit to others their cultural knowledge, customs and practices associated with the application area. (j) To determine and regulate membership of, and recruitment to, a landholding group. The proceedings 18 The parties to the proceedings at first instance were: 1. The Applicants 2. The Northern Territory 3. The Corporation - this body was established by s 27 of the Parks and Wildlife Commission Act (NT) (the Commission Act). That Act also established the Commission. The Corporation did not participate in the hearing beyond lodging a written submission at the outset and adopting the final submissions of the Northern Territory on extinguishment. 4. Mr J Love representing the Warumungu Prospectors and Leaseholders Association. Neither Mr Love nor any other person on behalf of the Association took any part in the hearing. 5. Mr CP Eaton and Mr and Mrs C Hall who, at the time of the application, had exploration licences over part of the land comprising the claim area. They did not participate in the hearing. Their exploration licences have expired. The parties that actively participated in the hearing were the applicants and the Northern Territory. 19 His Honour received evidence at a number of sites in the claim area and viewed ceremonies performed by the applicants. The bulk of the evidence other than that taken on site from Aboriginal people was expert evidence, public records and witness statements tendered by consent. The applicants' experts were an anthropologist, Dr Craig Elliott, a historian, Dr Petronella Vaarzon-Morel, a linguist, Dr Harold Koch, and an archaeologist, Dr MA Smith. A genealogical report was also received. The Northern Territory relied upon the evidence of a linguist, Professor Francesca Merlan, and an archaeologist, Dr Scott Mitchell. His Honour observed in the judgment that the hearing was greatly facilitated by the parties and their legal representatives. The Northern Territory consented to the tender of voluminous documentary and expert evidence so that the proceedings were focussed on the real issues in the case. 20 There was a fair degree of agreement between the parties on the legal principles applicable. The significant exception to what his Honour described as 'the general accord' related to the definition of the relevant native title community. The applicants contended that the relevant native title community was that defined in their application. The Northern Territory, on the other hand, argued that the native title rights and interests were held at the level of each of the seven separate estate groups. The judgment 21 The essential elements of his Honour's judgment and his findings, insofar as they are related to this appeal, are set out below. Supplementary references to particular aspects of the judgment will be made later in relation to specific issues raised on the appeal. 22 The time at which the Crown first asserted sovereignty over the land in the claim area was 1788 for the area to the east of meridian 135 degrees east (in accordance with the proclamation of Governor Arthur Phillip in 1788) and 1825 for the area to the west of meridian 135 degrees east and meridian 129 degrees east (in accordance with the proclamation of Governor Darling in 1825). This reflected the findings by Olney J in Yarmirr v Northern Territory of Australia (1998) 82 FCR 533 at 551 and was not in dispute. The different dates upon which sovereignty was established over the claim area were not of significance in determining the native title claim. There was no European entry into the claim area or its environment until after 1825. There was nothing to indicate that indigenous uses of the relevant land altered significantly between 1788 and 1825. 23 The claim area covers only a small proportion of the country of the seven estate groups. However the learned trial judge did not think the applicants' claims should be viewed in isolation by reference to that limited area alone. Because of prior extinguishment and previous grants under the Act a claim area might not reflect the geographical range of the traditional country of the applicant group. Evidence was therefore admitted which related to areas close to but not included within the claim area. 24 His Honour found that ancestors of the applicants had inhabited the claim area from before the acquisition of sovereignty (be it 1825 or 1788). The continuity of that connection had not been broken by European contact. Aspects of traditional law and customs which had been observed by ethnographers, Spencer and Gillen, in 1901 dated back to sovereignty and earlier. That conclusion was supported by reference to the intricacy of those laws and customs and the almost complete absence of European contact prior to 1871. 25 The traditional laws and customs observed by the applicants had continued substantially uninterrupted since sovereignty in relation to the claim area and its surrounds. The evidence to that effect was strong. It came from the ethnographic material, from reports of European settlers in the area, from the historical and anthropological evidence and from the oral evidence of a significant number of members of the putative claimant group. The Northern Territory acknowledged that the expert evidence demonstrated that parts of the claim area had been occupied for a considerable time in the past and that it was a reasonable inference that the present communities are descended from the Aboriginal inhabitants of the region in the sense that there is a substantial degree of ancestral connection between the community now in place and the original community. His Honour said (at [112]): 'I have found that the original community or landholding groups or claim group of the area were an identifiable community and an organised society under traditional laws and traditional customs.' 26 The Northern Territory contended, however, that the claim group was not a true single community of native title holders but a confederation resulting from the fragmentation of the remaining areas of traditional use and occupation by European utilisation of the claim area. His Honour found that the evidence clearly established a strong sense of community or 'family' within the applicants' identified claim group which extended across the seven landholding groups. He cited Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1at [61] for the proposition that communal native title could comprise subgroups or indeed individuals with particular rights and interest in the community's lands. Examples were cited from the judgment of Lee J in Ward v Western Australia (1998) 159 ALR 483 at first instance, the judgment of Olney J in Yarmirr and that of Sundberg J in Neowarra v State of Western Australia [2003] FCA 1402. His Honour held that the claimant group was one community operating under a common set of laws and customs and containing sub-groups with particular responsibilities under the common laws and customs. 27 The claim group or community had its ancestral source in the community which occupied the claim area at the time of sovereignty. The evidence demonstrated, at that earlier period, the existence of a communal title wider than an estate based title. The Aboriginal evidence indicated that within the claim area there was one set of avoidance relationship rules, one set of mourning customs, one set of gender restriction rules and the same general rules relating to looking after country, whether or not the country was specifically identified by reference to a particular estate group. There were aspects of common ceremonial practice consistent throughout the claim area which did not differ by reference to separate estate groups. There was no significant evidence to indicate that individual country or estate groups functioned separately as communities with different rules or customs or with different ceremonies or with separate and isolated residential arrangements. They shared ceremonies and members of each of the four language groups would attend them. There was considerable evidence of marriage between linguistic or tribal groups and between members of different estate groups within the claim group. There was a set of rules to determine whether proposed marriages were permissible in accordance with traditional laws and customs. There was commonality of ceremonial and dreaming connections in the claim area between the four language or tribal groups and between the seven estate groups. Those connections extended across the areas of the different tribal estate groups. Ceremonies carried out throughout the claim area were and had been the same wherever the ceremonies were conducted and irrespective of estate groups. These included ceremonies relating to young man's business, womens' awely ceremonies, mourning customs and the like. His Honour said (at [140]): 'The same traditional laws and customs regulate throughout the claim area what a particular person is entitled to know or to see, or to participate in, and what particular places a person is entitled to go to.' The hunting practices and use of bush resources by the applicants were consistent and shared among all members of the claim group independently of particular estate groups. There was no evidence of separate estate groups conducting ceremonies independently of the other groups or in other ways regarding themselves as a separate community distinct from a general community in the claim area. 28 His Honour referred to the evidence of both Dr Elliott and Dr Koch as expressing the view that there were no different systems or principles of land tenure operating in different parts of the claim area notwithstanding the existence of the seven separate estate groups. The relative 'definability' of areas applicable to each estate group seemed, on Dr Koch's evidence, to correlate to some extent with the availability of reliable water supplies. 29 In dealing with the submissions put by the Northern Territory about the existence of the estate groups as separate landholding entities, his Honour referred to evidence relied upon by the Northern Territory that each estate group had 'its own country'. So the evidence of Kurundi B Kngwarrey was that the Kaytetye people at Hatches Creek had their own country at or near the Barrow Creek area. He described an area known as the 'Black Tank' area which was at Alepeyewenh in the land of the Anurette as being his particular country. He did not think he had the right to talk about any other country. A number of witnesses had used the expression 'my country' or 'my father's country' to refer to particular parts of the country. His Honour observed that this evidence generally referred to the place where the particular witness grew up or with which the witness had a particularly strong link. 30 The Northern Territory submitted to his Honour that there were handover points in the claim area where there was a shift in the responsibility of the land or dreaming stories so that the persons entitled to exercise comparable rights over the land moved from one landholding group to another. There was also evidence of certain dreamings passing from one group to another from the claim area and its surrounds to other groups unrelated to the four language groups or the seven estate groups within them. Despite the Northern Territory's submissions in reliance upon these matters, his Honour agreed with Dr Elliott's conclusion that the seven landholding groups in combination operate as a community. Dr Elliott said, in a passage quoted by his Honour (at [146]): 'This is evidenced in that the applicants claim kinship relatedness (both through descent and intermarriage) and regard themselves as "one mob" with "one law" (over and above localised territorial affiliations); they share in common a wide variety of social and religious customs and beliefs; many applicants habitually reside together in the same locations and exist in a common social universe, both historically and currently. These communal interrelationships are not inhibited in any sense by language differences, since multilingualism in the application area is quite widespread and the local form of 'Aboriginal English' is ubiquitous.' 31 His Honour found a sophisticated structure for membership of the community and responsibilities for the claim area demonstrated by the traditional laws and customs of the claim group. Indicative of the existence of the wider claim group to which he referred, certain members of the claim group claimed to have the status of kwertenital for country or parts of the claim area where they had no known genealogical relationship but which arose because of their close connections with people who worked on that country. 32 His Honour found that the evidence indicated that apmerek-artwey were members of the claim group by patrilineal descent who could fairly be described as owners of the estate or the traditional owners of it and sometimes as 'boss' of the land. Kwertengerl, which arises through persons who identify with an estate through their mother's father, their father's mother or their mother's mother, were caretakers of the land through matrifiliation with a limited and proximate principle of succession. In addition to the formal structure of the ranking system, the evidence indicated exceptions based on knowledge, seniority and long term residence. In the estate area of Lyentyawel-Ileparranem, where there were limited surviving members of the group, a man called Alec Petersen knew the country and had the responsibility of looking after it even though he was not part of the direct lineal descent group. This is because he was born close to that country and was given that responsibility by a person from that country. 33 In Dr Elliott's supplementary report he described, correctly as his Honour found, the effect of the evidence thus (at [150]): '... an underlying basis for the right to exercise territorial rights is knowledge: that is, whether an individual "knows" the country or not. The local belief is that someone who "knows" the country will know where to go and where not to go; what activities are permissible and those that are not; in the company of who and for how long etc. An individual possessing this knowledge and attendant rights is highly likely to be a member of the applicant community and, as far as practicable, obliged to regulate the territorial rights of others (including Aboriginal "strangers" and non-Aboriginal "strangers") by participating in meetings over land interest issues.' 34 His Honour considered the membership of the native title claim group and found that acquisition of rights by 'descent' includes acquisition by those who have been adopted as minors and have been 'grown up' as children of adopted parents so that the child is placed into the group as biologically descended from the adoptive parent. The evidence on that topic was uncontested. 35 The question whether native title rights and interests could arise simply by birth on the claim area was not clearly resolved on the evidence. His Honour was of the view that the simple fact of birth on the claim area was not sufficient to establish membership of the claim group but that, under the traditional laws and customs of the group, subsequent activities and acceptance as a member of the community through knowledge and/or participation in the activities of the group enabled such membership to be established. It was not necessary to identify precisely how that occurred. That was a matter for the traditional laws and customs of the claim group. 36 In relation to marriage and the position of spouses, his Honour found that membership of the claim group with some native title rights and interests in the claim area could be acquired by marriage to a person who was a member of the claim group. The consistent picture presented by the evidence was that a spouse of a member of the claim group was regarded as, and became a member of, the group with some native title rights and interests in respect of the claim area. The determination as to their nature and extent was a matter for the traditional laws and customs of the group. His Honour did not find it necessary to determine them. 37 Turning to the content of the native title rights and interests, his Honour found that there is a customary right of the applicants and the claim group to occupy, use and enjoy the claim area. That right rested primarily with the apmerek-artwey, the kwertengerl and the anyanyarl-akem of the particular estate group whose country was in question but it was plain that the applicants generally have rights of use and enjoyment over the claim area in accordance with the traditional laws and customs of the claim group. His Honour held that the nature and extent of each individual's rights are best determined by the traditional laws and customs of the claim group, but are obviously dependent upon the extent to which the individual knows the particular part of the claim area. 38 The evidence about control of access of others to the claim area was not so clear. There was no evidence of significant instances of persons other than the claim group seeking to come on to the claim area or to use its resources with or without their permission. There was evidence that Warlpiri persons and others came onto and worked around Hatches Creek during the time that it was functioning as a mine. There was no suggestion that they sought the permission of members of the claim group to do so, or that any action was taken to prevent them coming into that part of the claim area. The evidence was that Aboriginal people from other regions and non-Aboriginal people should ask the applicants for permission to enter the country essentially so that they could be told not to damage sacred places and so that they could be told how to preserve the resources of the area. His Honour concluded that, primarily for the purpose of protecting sacred sites and the resources of the claim area, the traditional laws and customs of the claim group involved the exercise and assertion of a right to control access of others to the claim area. Persons were expected to seek permission before entering the claim area and would be removed if they did not comply with the terms of such permission. 39 The use or exercise of the right to use and enjoy the resources of the claim area was found to be amply supported. While there was little or no evidence of actual control of the use and enjoyment by others of the resources of the claim area, that might simply be because the occasion for the assertion of that right did not routinely arise. It was consistent with the evidence that the applicants, under their traditional laws and customs, have the right to share, exchange or trade subsistence and other traditional resources obtained from the land and waters constituting the claim area. The learned trial judge drew a distinction between asserting the right to take flora and fauna from the area and the right to 'own' the flora and fauna of the claim area. There could be no finding that the applicants had property in the flora and fauna in the claim area. 40 His Honour found a right and a serious obligation on the applicants to physically maintain and protect places of importance in the claim area according to their traditional laws and customs and that this had been done over a long period of time. The evidence as to where that obligation lay in respect of particular places of importance was complex and sophisticated. It was not necessary to refer to its detail. The claim group, in accordance with its traditional laws and customs, exercised the right to regulate and prevent the disclosure of its beliefs and practices including songs, rituals, ceremonies and representations of sacred images which relate to areas of land or waters within the claim area. This was not disputed by the Northern Territory which contended, however, that the asserted right was not a native title right because it was not one which related to the land. 41 His Honour was satisfied that the claim group, according to its traditional laws and customs, has the right to regulate and determine its membership. He concluded that the claim group, according to its traditional laws and customs, enjoys the rights and interests within the claim area which were asserted in the proposed determination. 42 The question of extinguishment was next considered. The applicants accepted that the right to exclude all others from the claim area was extinguished by the grant of pastoral leases that conferred rights inconsistent with the native title right to control access to the land. That acknowledgment was found to be appropriate having regard to the High Court's decision in Western Australia v Ward (2002) 213 CLR 1 (Ward HC) and, in particular, the judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ at [192], [417] and [422]. The claim to exercise native title rights and interests in respect of Hatches Creek to the exclusion of all others was maintained. 43 His Honour referred to the legal basis for the grant of pastoral leases in the Northern Territory and generally to principles relating to extinguishment. He considered particular extinguishing acts. The only current instrument granting rights in respect of the land claim area is the Perpetual Lease CLP 1117 in favour of the Corporation. There is no current grant relevant to Hatches Creek. Historically, all of the claim area has, between 1881 and 1902, been subject to pastoral leases. There have also been other pastoral tenures including pastoral claims and permits and grazing licences. 44 Since October 1881 the claim area has been subject continuously, in various parts and at various times, to a total of 20 pastoral leases. The first relevant pastoral lease (PL 207) was issued under the Northern Territory Land Act 1872 (SA). It covered only a small section of the southern boundary of the claim area. It was cancelled on 3 April 1890. It had been granted for 'grazing and other pastoral purposes' and was subject to reservations including reservations 'for and on account of the present Aboriginal inhabitants of the Province and their descendants'. The reservation guaranteed: '...full and free right of ingress, egress and regress into and upon, and over the said Waste Lands of the Crown hereby demised and every part thereof and in and to the springs and surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this demise had not been made.' 45 Further pastoral leases had been granted by 1890 under the Northern Territory Crown Lands Consolidation Act 1882 (SA). Some of these covered the whole of the eastern part of the claim area to an area a little to the west of the Anurette Aboriginal Lands Trust area. Each was for grazing and other pastoral purposes and contained a reservation of rights for Aboriginal occupants and their descendants in terms similar to those which operated under the 1872 Act. Pastoral leases also issued in respect of the western part of the claim area and they were granted under the Northern Territory Crown Lands Act 1890 (SA). Each of them contained the reservation in favour of Aboriginal people in similar terms. The pastoral leases had all been cancelled by 16 January 1902. There followed an hiatus and then a regime of pastoral permits and grazing licences which was established until 1922, first through South Australia and then through the Commonwealth. 46 Two pastoral leases, issued in October 1921 under the Crown Lands Ordinance 1912-1923 (Cth), covered a large proportion of the principal claim area and areas to its north, but not its northwest section or its south eastern section. They did not contain any reservation in favour of Aboriginal people. Subsequently three leases were issued under the Crown Lands Ordinance 1924-1927 and a further pastoral lease under the Crown Lands Ordinance 1931-1959 (Cth). 47 Three pastoral leases commenced on 1 July 1928 covering all of the claim area other than its northwest section and Hatches Creek. One of those leases was determined in 1938 and two others in July 1962. There were grazing licences issued over the area of the first determined pastoral lease and in 1956 the remaining north western portion of the claim was occupied together with an area to its west by Grazing Licence 1583. That licence was cancelled on 8 April 1958 but subsequently became Grazing Licence 1658 issued on 11 August 1958 which expired on 30 June 1959. 48 The Northern Territory maintained that there had been partial extinguishment of Aboriginal rights and interests in respect of the claim area generally. It did not contend that any of the pastoral leases granted in respect of the principal claim area or Hatches Creek were previous exclusive possession acts as defined in s 23B of the NT Act. Rather, it submitted that they were previous non-exclusive possession acts as defined in s 23F(2) of the Act, being non-exclusive pastoral leases which were valid and granted before 23 December 1996. Native title rights had been extinguished to the extent of the inconsistency with the rights and interests granted under the pastoral leases. 49 His Honour concluded that native title rights to control access to the claim area and to make decisions about its use were not so inconsistent with rights under the pastoral leases as to result in their total extinguishment. The right to make such decisions was extinguished only to the extent that it was inconsistent with the rights of a pastoral lessee to make decisions concerning those matters. He referred to the Full Court in Western Australia v Ward (2000) 99 FCR 316 (Ward FC 1) and the High Court in Ward HC. He held that a general right to make decisions about the use and enjoyment of the land, subject to the rights of pastoral lessees and others who may use the land under statutory or other entitlements, was not of itself inconsistent with the rights of a lessee to make decisions about the land for pastoral purposes. His Honour gave as an example of such decisions the decision that a type of bush food should not be exploited in certain areas at certain times. 50 The Perpetual Lease CLP 1117 was granted to the Corporation in perpetuity to carry out the functions of the Parks and Wildlife Commission in accordance with the Territory Parks and Wildlife Commission Act (NT) and the Territory Parks and Wildlife Conservation Act (NT). His Honour held it to be a Category D past act and, as was common ground between the parties, not a previous exclusive possession act. As a Category D past act it was validated by s 8 of the Validation (Native Title) Act 1999 (NT) (the Validation Act) and the non-extinguishmentprinciple applied. It was wholly inconsistent with the continued existence of a non-exclusive native title right to control access of persons to the principal claim area. It was also wholly inconsistent with the continued existence of a continuing non-exclusive native title right to make decisions about the principal claim area. By reason of the grant of CLP 1117 the principal claim area came under the care, control and management of the Parks and Wildlife Commission. This had the effect, in his Honour's judgment, that the applicants' native title rights and interests had not been further extinguished by CLP 1117 beyond the extinguishment effected by previous pastoral leases. 51 His Honour then considered public works in the principal claim area, including access roads, a camping area and camp site and a day-use and camping area. The works were valid notwithstanding that there had been no declaration of a proposed park which it was proposed they would serve. 52 His Honour considered the application of s 47B of the NT Act to the Hatches Creek townsite. In order to take advantage of s 47B, it was necessary that the native title claim group establish that one or more of its members had occupied Hatches Creek at the time of the application. There was no direct evidence on that topic. But the evidence led to that inference. Members of the native title group resided nearby and in the traditional way hunted and traversed land including Hatches Creek. Occupation at the time of application having been established, he was satisfied that s 47B did apply to Hatches Creek and that the rights of the claim group which he had found to exist were, in relation to Hatches Creek, exclusive. This result flowed from the facility provided by s 47B for the disregarding of prior extinguishing acts where its conditions were satisfied. 53 His Honour then discussed the precise terms of the determination including the native title rights and interests to be included in it. Grounds of appeal 54 The issues emerging from the grounds of appeal, as set out in the notice of appeal, could broadly be defined as follows: 1. Whether his Honour erred in the identification of the native title holders as a group comprising: (i) the members of the seven landholding groups; (ii) persons with birthplace affiliations to the claim area; (iii) spouses of members of the landholding groups; and whether he adequately defined the members of the group (grounds 1 to 10 and 51 to 53). 2. Whether his Honour erred in his formulation of various of the native title rights and interests and his inclusion of certain others having regard to: . the requirement that the native title rights and interests relate to the land and waters in the determination area; . the extinguishing effects of historical grants of pastoral leases negating the exclusive aspects of pre-existing native title rights and interests (grounds 11 to 47, 55 and 56). Under the rubric of ground 47 the Northern Territory also sought the insertion of a provision in the determination that all native title rights and interests determined were of no effect during the currency of CLP 1117 other than the rights to use the area for hunting, food gathering, religious and ceremonial purposes. 3. Whether s 47B of the NT Act had application to the Hatches Creek townsite (grounds 45 to 50). 55 One aspect of the grounds relating to the Hatches Creek townsite area reflected a contention not agitated before his Honour. That was whether, because of a 1953 proclamation affecting the area, the applicants could not rely upon s 47B to disregard historical pastoral lease extinguishment. The Northern Territory government's contention was based upon the proposition that the proclamation of the townsite made in 1953 was a proclamation of the kind referred to in s 47B(1)(b)(ii) and so excluded the area covered by it from the operation of the section. The second limb of the grounds relating to s 47B was that the learned trial judge erred in finding that the applicants 'occupied' that part of the claim area at the time of the application. 56 A cross-appeal was filed proposing a number of changes to the determination which will be dealt with below. It did not raise any major issues of principle. Statutory framework - The Native Title Act 1993 (Cth) 57 It is sufficient for present purposes to set out the provisions of the NT Act on which the submissions in this appeal were focussed. The two principal provisions which were the subject of debate were s 223, which defines native title and native title rights and interests, and s 225, which defines the content of a determination of native title. Section 47B, dealing with the qualified revival of native title against prior historical extinguishment, was also debated. 58 Section 223 provides, in the relevant parts: '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.' Subsections (3), (3A) and (4) are not material for present purposes. 59 Section 225 provides: '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.' 60 Section 47B of the Act appears in Div 4 of Pt 2 of the Act entitled 'Other Provisions Relating to Native Title'. It provides, in the relevant parts: 'When section applies (1) This section applies if: (a) a claimant application is made in relation to an area; and (b) when the application is made, the area is not: (i) covered by a freehold estate or a lease; or (ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or (iii) subject to a resumption process (see paragraph (5)(b)); and (c) when the application is made, one or more members of the native title claim group occupy the area. Prior extinguishment to be disregarded (2) For all purposes under this Act in relation to this application, any extinguishment, of the native title rights and interests in relation to the area (sic) that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded. Effect of determination (3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed: (a) the determination does not affect: (i) the validity of the creation of any prior interest in relation to the area; or (ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and (b) the non-extinguishment principle applies to the creation of any prior interest in relation to the area. ...' Subsections (4) and (5) of the section are not material for present purposes. The developing law of native title 61 The primary questions to be decided by the Court upon an application for a native title determination are whether or not native title exists in relation to a particular area, if so who holds it and what is the nature and extent of the native title rights and interests in relation to that area. 62 The class of 'native title rights and interests' is defined in s 223 of the NT Act. In considering the construction and application of that definition it is desirable to keep in mind the stated purpose of the Parliament in enacting the NT Act. The Preamble to the Act sets out '... considerations taken into account by the Parliament of Australia in enacting the law ...'. Those considerations include: (i) the acknowledgment of the Aboriginal and Torres Strait Islander people as the original inhabitants of Australia; (ii) their uncompensated and involuntary dispossession; (iii) their comprehensive social disadvantage in Australian society. The Preamble refers to and recites the proposition taken from the decision of the High Court in Mabo (No 2) that: '[T]he common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands.' It also declares the intention behind the enactment of the NT Act thus: '(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.' 63 The Preamble declares the moral foundation upon which the NT Act rests. It makes explicit the legislative intention to recognise, support and protect native title. That moral foundation and that intention stand despite the inclusion in the NT Act of substantive provisions, which are adverse to native title rights and interests and provide for their extinguishment, permanent and temporary, for the validation of past acts and for the authorisation of future acts affecting native title. The first of the main objects of the NT Act set out in s 3(a) is: 'to provide for the recognition and protection of native title;' The overview of the NT Act, in s 4(1) states: 'This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.' 64 The idea of recognition is central to the common law of native title and of the NT Act. The common law and the NT Act define the circumstances in which recognition will be accorded to native title rights and interests and the conditions upon which it will be withheld or withdrawn. It is a concept which operates in a universe of legal discourse. It derives from the human act by which one people recognises and thereby respects another. By the process, which it names, aspects of an indigenous society's relationship to land and waters are translated into a set of rights and interests existing under non-indigenous laws. The choice of the term 'recognition' links it to the normative framework established by the common law and by the Act itself as evidenced in the Preamble. Recognition is not a process which has any transforming effect upon traditional laws and customs or the rights and interests to which, in their own terms, they give rise. The term 'extinguishment' merely refers to the withholding or withdrawal of recognition of native title rights and interests where the exercise of non-indigenous sovereignty is reflected in legislative or executive acts inconsistent with such recognition. Extinguishment, like recognition, is silent on the rights and interests which arise under traditional law and custom and the relationship which they may reflect between an indigenous society and its country. 65 As the High Court observed in Fejo v Northern Territory (1998) 195 CLR 96, native title originates in the traditional laws acknowledged and customs observed by the indigenous people who possess the native title. It is not an institution of the common law nor a form of common law tenure, but is recognised by the common law. The Court perceived 'an intersection of traditional laws and customs with the common law' (at 128). While the existence of the traditional laws and customs is a necessary condition for the existence of native title it is not a sufficient basis for its recognition. 66 The rules which govern the recognition of native title rights and interests at common law were set out in the decision of the High Court in Mabo (No 2). The basic propositions to be derived from that case are: 1. The colonisation of Australia by Great Britain did not extinguish rights and interests in land held by Aboriginal and Torres Strait Islander people according to their own law and custom. 2. The native title of Aboriginal and Torres Strait Islander people under their law and custom will be recognised by the common law of Australia and can be protected under that law. 3. When the Crown acquired each of the Australian colonies it acquired sovereignty over the land within them. In the exercise of that sovereignty native title could be extinguished by laws or executive grants that indicated a plain and clear intention to do so - eg grants of freehold title. 4. To secure the recognition of native title it is necessary to show that the Aboriginal or Torres Strait Islander group said to hold the native title: (a) has a continuing connection with the land in question and the rights and interests in the land under Aboriginal or Torres Strait Islander traditional law and custom, as the case may be; (b) continues to observe laws and customs which define the ownership of rights and interests in the land. 5. Under common law, native title has the following characteristics: (a) it is communal in character although it may give rise to individual rights; (b) it cannot be bought or sold but can be surrendered to the Crown; (c) it may be transmitted from one group to another according to traditional law and customs; (d) the traditional law and custom under which native title arises can change over time and in response to historical circumstances; (e) native title is subject to existing valid laws and rights created under such laws. 67 A global statement of these propositions appeared in the judgment of six justices of the High Court in Western Australia v Commonwealth (1994) 183 CLR 373 (at 452-3): 'Under the common law, as stated in Mabo (No 2), Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown. The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown's (or a statutory authority's) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title.' 68 The importance of the spiritual, cultural and social connection of the people with the land as an aspect of the 'socially constituted fact of native title rights and interests that is recognised by the common law' was acknowledged in Yanner v Eaton (1999) 201 CLR 351 at 373 per Gleeson CJ, Gaudron, Kirby and Hayne JJ. Their Honours cited and adopted the observation of Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 (at 358): 'Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights.' And the further statement by Brennan J (at 358): 'Traditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it.' 69 The communal character of native title emerges from the observations of Brennan J in Mabo (No 2) (at 62) that: 'A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands.' His Honour also said that the recognition of the rights and interests of a sub-group or individual which are dependent upon a communal native title is not prevented by the absence of a communal law for the resolution of any point in contest between rival claimants. Such points may be settled by community consensus or in some other customary manner. 70 Notwithstanding the existence of groups and individuals with particular native title rights and interests in Mabo (No 2) the form of declaration made by the Court was global, namely that the Meriam people were entitled 'as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands'. 71 Under s 225 of the NT Act, read with s 223, the Court is required to identify, in relation to the determination area, 'rights and interests ... possessed under the traditional laws acknowledged and the traditional customs observed' by the relevant peoples. The people, by those laws and customs, must have a connection with the land or waters and the rights and interests must be recognised by the common law of Australia. These aspects of the definition of native title rights and interests have their origin in the majority judgment in Mabo (No 2) and could not have been intended to undercut the fundamental principle of the communal character of native title. 72 The High Court has focussed attention on the statutory definition of 'native title' and 'native title rights and interests' in its decisions in Commonwealth v Yarmirr (2001) 208 CLR 1, Ward HC; and Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422. In Yarmirr Gleeson CJ, Gaudron, Gummow and Hayne JJ identified three necessary characteristics of the rights and interests with which the NT Act deals under s 223(1): 1. They are possessed under the traditional laws acknowledged and the traditional customs observed by the people concerned. 2. The people, by those laws and customs, must have a 'connection' with the land or waters. 3. The rights and interests must be recognised by the common law of Australia. No prior assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are those supported by some communally organised and enforced system of sanctions. Although the reference to rights and interests enjoyed under traditional laws and customs requires or invites attention to how breaches of rights and interests might be dealt with, it also invites attention to how they are observed (at 39 [16]). 73 In the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward HC, their Honours said of s 223(1)(b) (at 85 [64]): 'In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a "connection" with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a "connection" of the peoples with the land or waters in question.' It also emerges from their Honours' judgment that while the use to which land or waters are put may indicate the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned, the absence of evidence of recent use does not lead necessarily to the conclusion that there can be no relevant connection. That depends upon the content of the traditional law and custom and what is meant by 'connection' by those laws and customs. As to that, their Honours expressed no view on the nature of the connection that must be shown to exist or when a 'spiritual connection' would suffice. 74 In Yorta Yorta the centrality of the statutory definition of native title rights and interests and 'determination of native title' was emphasised. A determination under the NT Act was said to be '... a creature of that Act, not the common law' (per Gleeson CJ, Gummow and Hayne JJ at 440 [32]). Three characteristics of native title rights and interests which can be the subject of a determination under the NT Act were stated thus: 1. They must be possessed under the traditional laws acknowledged and the traditional customs observed by the people concerned. That is they must find their source in traditional law and custom, not in the common law. 2. The rights and interests must have the characteristic that by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those people have a 'connection with' the land or waters. The source of the connection is traditional law and custom, not the common law. 3. The rights and interests in relation to land must be recognised by the common law of Australia. 75 The traditional laws or customs which are the source of the native title rights and interests must have a 'normative content'. They must derive 'from a body of norms or normative system - the body of norms or normative system that existed before sovereignty' (Yorta Yorta at 441 [38]). This does not require fine distinctions to be drawn between legal rules and moral obligations. The interests may arise under both law and custom. There nevertheless must be some kind of 'rules' which have a 'normative content'. Absent such rules there may merely be observable behaviour patterns but no rights or interests in relation to the land. 76 In order to be cognisable by the common law any rights and interests in the land must have their origin in the system of traditional law and custom in existence at the time of the acquisition of sovereignty by the Crown. After sovereignty that system of traditional law and custom could not validly create new rights or interests cognisable by the common law (Yorta Yorta at 443 [43]). That does not prevent the recognition of rights and interests transmitted according to rules of transmission which existed at sovereignty. Nor does it prevent the significant adaptation of traditional law and custom post-sovereignty. The joint judgment in Yorta Yorta required that (at 444 [46]): '... the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown.' The normative system must have had 'a continuous existence and vitality since sovereignty' (444 [47]). Any interregnum in its existence would cause the rights and interests derived from it to cease beyond revival in the eyes of the common law (445 [47]). 77 The laws and customs, from which the native title rights and interests derive their existence, must necessarily be those of a society or group. This proposition was derived from the general observation of Professor Honore that 'all laws are laws of a society or group' (445 [49]-[50]). It followed that the rights and interests possessed under a body of laws and customs are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes them. If that society ceases to exist so too do the laws and customs which it observed. When a society that existed at sovereignty ceases to exist and its laws and customs are adopted post-sovereignty by some new society the rights and interests to which they give rise would not be rooted in post-sovereignty laws and customs (446-447 [52] and [55]). The Court said (at 447 [55]): '... laws and customs and the society which acknowledges and observes them are inextricably interlinked.' The consequence of these considerations is that the inquiry in relation to native title rights and interests under s 223 requires consideration of the relationship between traditional laws and customs now acknowledged and observed and those which were acknowledged and observed at the time of the acquisition of sovereignty by the Crown. It must be shown that the society under whose laws and customs the native title rights and interests are said to be possessed has continued to exist from sovereignty to the present day '... as a body united by its acknowledgment and observance of the laws and customs' (at 457 [89]). However, change or adaptation in traditional law and custom or some interruption of enjoyment or exercise of native title rights is not necessarily fatal to that continuity (at 455 [83]). 78 The elements of a determination of native title are set out in s 225. It requires a determination of 'who the persons, or each group of persons, holding the common or group rights comprising the native title are'. That requires consideration of whether the persons said to be native title holders are members of a society or community which has existed from sovereignty to the present time as a group, united by its acknowledgement of the laws and customs under which the native title rights and interests claimed are said to be possessed. That involves two inquiries. The first is whether such a society exists today. The second is whether it has existed since sovereignty. The concept of a 'society' in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta. The relevant ordinary meaning of society is 'a body of people forming a community or living under the same government' - Shorter Oxford English Dictionary. It does not require arcane construction. It is not a word which appears in the NT Act. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as 'societies'. The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes. 79 The determinations which may be made under s 225 cover a range of possibilities which depend upon the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title rights and interests claimed. In some cases the members of the community identified as the relevant society may enjoy communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans. This was the case in Sampi v State of Western Australia [2005] FCA 777. The relevant community in that case was geographically confined to the Dampier Peninsula. Lawmen had global responsibilities encompassing law grounds in each of the clan estates. There was an area accessible to all members of the community and regency arrangements in relation to vacant estates. The traditional laws and customs, as explained in the evidence, supported a principle of communal ownership. 80 If, on the other hand, the society identified as the repository of the traditional laws and customs is a cultural bloc whose members are dispersed in groups over a large arid or semi-arid area an inference of communal ownership of native title rights and interests derived from its laws and customs may be difficult if not impossible to draw. In De Rose v State of South Australia (No 2) [2005] FCAFC 110 the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part. That was identified as the Western Desert Bloc. It was not necessary that the native title holders constituted a society or community in their own right. Each case will, of course, depend upon its own facts. 81 There have been native title determination cases, preceding the decision in Yorta Yorta, which involved multiple groups. These were cited as well as post Yorta Yorta cases, but each turns on the facts found at first instance. In Ward, Lee J found the Miriuwung and Gajerrong groups, which were territorially adjacent and shared economic and social links, could be regarded as a composite community with shared interests. There was 'an ancestral connection' with the Aboriginal community or communities which occupied the claim area at sovereignty. The historical 'societal' analysis described in Yorta Yorta was not expressly adverted to. There may be a question whether ancestral connection with a pre-sovereignty community would be sufficient to establish the continuity of traditional law and custom required under the NT Act as interpreted in Yorta Yorta although in context it may amount to a finding of societal continuity. The Full Court rejected a contention on appeal that the evidence before the trial judge did not show that the Miriuwung and Gajerrong people were a single community. Although there were witnesses whose full array of rights only existed in particular estate areas, this did not preclude the existence of 'a Miriuwung and Gajerrong community which acknowledges and observes traditional laws and customs under which different members of the community employ differing arrays of rights within and outside their particular family or estate country' - Ward FC 1 at [239]. What this says, relevant to the present case, is that a composite community of estate holding groups may comprise a community which enjoys communal ownership of the native title rights and interests albeit there may be intramural allocations between particular family or clan groups or other sub-sets of the community. 82 In Yarmirr, the applicants were members of five different estate groups. Although each estate group asserted traditional rights in respect of discrete areas of land and sea their members saw themselves as a single community and brought their application on that basis. Olney J, who was the trial judge, said (at 570): 'Such an approach was adopted in the declaration made in Mabo (No 2) and was clearly contemplated by the reference in s 223(1) of the Native Title Act to "the communal group or individual rights and interests of Aboriginal peoples ...".' His Honour made a global determination in that case that the native title was held by the members of the several clans. 83 Wandarang People v Northern Territory (2000) 104 FCR 380 was an application by twelve groups of Aboriginal people in respect of land and waters associated with four language groups on the basis that the claim area encompassed the whole or part of the traditional country of the several groups. In that case the Northern Territory accepted that the community of native title holders comprised the members of the twelve groups. It was also common ground that the contemporary claimant community had a 'substantial degree of ancestral connection' with the original inhabitants of the claim area. 84 In Neowarra, the State submitted that the native title should be recognised on a 'dambun' or perhaps language level. But Sundberg J found that the claimants regarded themselves as part of a community. There was an emphasis on shared customs and traditions that transcended the particular dambun or language area with which individuals were associated. His Honour rejected a dambun-based formulation of the native title rights and interests in that case because it '... would not accommodate the evidence that close relatives of dambun members have rights and interests in the land' - (at [387]). His Honour found that evidence identified the society as the Ngarinyin, Wunanbal and Worrororra people. They were united by their acknowledgement and observance of the traditional laws and customs from which their native title rights and interests derived - (at [394]). 85 Nicholson J in Daniel v State of Western Australia [2003] FCA 666, judgment in which was delivered after the decision of the High Court in Yorta Yorta, observed (at [334]): 'Sections 223 and 225 do not require the Court to search for an anthropologically identified form of community or group. The NTA makes clear the Court is to examine the evidence to see who holds native title, if anyone, and so whether there are communal, group or individual rights and interests.' His Honour held it unnecessary to decide whether the claimants were 'a coalition' or not. It was sufficient that they qualified as persons or groups in whom native title resides - (at [339]). 86 By way of contrast in Lardil Peoples v State of Queensland [2004] FCA 298, Cooper J made a determination of native title held severally by each of four groups in respect of discrete defined areas of land. His Honour found that the original Lardil, Yangkaal, Kaiadilt and Gangalidda peoples each occupied part of the claim area at sovereignty - (at [69]). He said (at [140]): 'At sovereignty, there was no over-reaching communal system of traditional law acknowledged or customs observed with respect to the land and waters within the claim area by the applicant group as a whole, or by the groups separately, which gave any constituent group rights or interests in the traditional territories of the other constituent group. Any cross-grouping rights were held at an individual level under the specific traditional laws and customs of the constituent group in whose territory the particular land and waters were located. Any agreement made post-sovereignty by the four claimant groups to treat the determination area as a single communal area held by them jointly with four internal areas which they each held separately, is not one recognised by the Act: Yorta Yorta at [43]-[44].' 87 It is a requirement of s 223(1)(b) that the native title holders, by their traditional laws and customs, have a 'connection' with the land and waters. That requirement operates in two ways. It declares, as a condition of the existence of native title rights and interests under the NT Act, that their putative holders have 'a connection with the land or waters'. It also requires that the connection be 'by' the traditional laws and customs under which the claimed rights and interests are possessed. The drafting is opaque because the word 'connection' is taken from a judgment and appears to have been applied in the statute somewhat out of context. It comes from the judgment of Brennan J in Mabo (No 2). The word appeared in his Honour's judgment at 59 when he referred to the fact that since European settlement of Australia many clans or groups of indigenous people had been 'physically separated from their traditional land and have lost their connexion with it'. This is consistent with a view of connection as something wider than physical presence on the land, albeit loss of connection could be a consequence of physical separation. His Honour went on to say (at 59-60): 'Where a clan or group has continued to acknowledge the laws (and so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.' His Honour contrasted that situation with the case in which 'the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs the foundation of native title has disappeared'. 88 From the preceding it can be seen that 'connection' is descriptive of the relationship to the land and waters which is, in effect, declared or asserted by the acknowledgment of laws and observance of customs which concern the land and waters in various ways. To observe laws and acknowledge customs which tell the stories of the land and define the rules for its protection and use in ways spiritual and material is to keep the relevant connection to the land. There is inescapably an element of continuity involved which derives from the necessary character of the relevant laws and customs as 'traditional'. The acknowledgment and observance, and thereby the connection, is not transient but continuing. 89 The joint judgment of the majority in Ward HC at [64] observed that s 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they had a 'connection' with the land or waters: 'That is, it requires first an identification of the content of the traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a 'connection' of the people with the land or waters in question.' While evidence of uses might say something about connection, 'absence of evidence of some recent use ... does not, of itself require the conclusion that there can be no relevant connection'. The question of what is meant by 'connection' by traditional laws and customs was not the subject of submissions in Ward HC. The majority therefore expressed no view on the nature of connection and in particular whether a spiritual connection would suffice. 90 In Yorta Yorta, in the joint judgment of Gleeson CJ, Gummow and Hayne JJ, emphasis was placed upon the need to consider the present possession of rights and interests and the present connection of claimants with the land or waters. But that was not to say that continuity of the chain of possession and continuity of connection was irrelevant - [85]. 91 The 'connection' requirement of s 223(1)(b) of the NT Act was recently referred to by the Full Court in De Rose (No 2). Their Honours relied upon the passage cited earlier from [64] of the joint judgment in Ward HC. They identified the content of the traditional laws and customs on the evidence before them which included rights and obligations relating to the use of the land in the claim area. They said (at [113]): 'In view of these findings as to the content of the traditional laws and customs of the Western Desert Bloc, the effect of those laws and customs is, in our opinion, plainly to constitute a 'connection' between Peter De Rose ... and the claim area. The traditional laws and customs confer rights and responsibilities on Peter De Rose over the claim area. They establish that he is inextricably linked to his country in a variety of ways. The 'connection' required to satisfy s 223(1)(b) of the NTA is present.' 92 It may be that not enough emphasis has been placed on the idea of continuity of observance as a manifestation of connection. The usage in Mabo (No 2) can constitute extrinsic material to aid in the construction of the statute. The use of 'connection' as emphasising a requirement to show continuity of association with the land by observance and acknowledgment of traditional law and custom relating to it gives proper recognition to its origins in the Mabo judgment. It involves the continuing assertion by the group of its traditional relationship to the country defined by its laws and customs. This relationship may be evidenced by its physical presence there but also in other ways involving the maintenance of the stories and allocation of responsibilities and rights in relation to it. 93 The word 'connection' should not be taken as qualifying or limiting the range of rights and interests arising under traditional law and custom which are native title rights and interests for the purposes of the NT Act. The existence of connection, in the sense explained, is a condition of their existence for the purposes of the NT Act. It does not limit their content. Their content is limited by the requirement that they be rights and interests 'in relation to land or waters'. The words 'in relation to' are words of wide import. The content of native title rights and interests may also be limited by the requirement, imposed by s 223(1)(c) that they 'are recognised by the common law of native title'. Issue 1 - The identification of the native title holders - the relevant part of the determination 94 The native title holders identified by the learned trial judge were set out in par 2 of the Determination as follows: '2. The persons who hold the communal or group rights comprising the native title as common law holders are the Aboriginal persons who are: (a) members of one or more of the seven landholding groups (Arrawatyen, Antarrengeny, Akweranty/Anwerret, Lyentyawal Ileparranem, Tyaw, Warwepenty and Kelantyerrang) by virtue of descent through his or her father's father, father's mother, mothers' father and mother's mother; or (b) recognised by the persons referred to in sub-paragraph (a) hereof, as members of one or more of the seven landholding groups by virtue of non-descent based connections, including adoption or birthplace affiliation; (c) spouses of persons referred to in sub-paragraphs (a), (b)or (c) and are recognised, by the persons referred to in sub-paragraph (a) hereof, as having native title rights and interests in the determination area.' The words 'or (c)' appear to have been included in error. This was to be read with par 6 of the Determination which provided: 'The native title rights and interests of members of the respective landholding groups referred to in paragraph 2 above, are held subject to and are exercisable in accordance with the traditional laws and customs of the common law holders.' Issue 1 - The identification of the native title holders - one community or seven estate groups 95 The Northern Territory submitted that his Honour had erred in making a determination which identified the whole of the native title claim group as the native title holders rather than the members of the seven estate groups taken severally. The alternative form of determination it proposed was set out in a document handed up in Court in the course of argument on the appeal. Paragraphs 2 and 3 of that proposed determination, which encapsulated the Northern Territory's position on the identification of the native title holders in this case, were as follows: '2. The whole of the determination area comprises the estates of the seven landholding groups known as: (a) Arrawatyen (b) Antarrengeny (c) Akweranty/Anwerret (d) Lyentyawal Ileparranem (e) Tyaw (f) Warwepenty (g) Kelahtyerrang ('the estate areas') 3. The persons who hold the communal, group and individual rights comprising the native title are the Aboriginal persons who: (a) have connections to one or more of the estate areas referred to in paragraph 1 by virtue of the fact that the area was the estate of his or her father's father (arrengey), father's mother (aperley), mother's father (artartety) or mother's mother (anyany); or (b) have a non-descent based connection to one of the estate areas referred to in paragraph 1 by virtue of the fact that he or she was born at a place within the estate.' 96 The Northern Territory argued that the community comprising the native title claim group is a recent composite of four language and tribal groups not connected to the claim area in accordance with the traditional laws and customs of the previous inhabitants. His Honour had identified that claim group with the community which existed at the time of the acquisition of sovereignty by the Crown. That identification was made on the basis that the present community had its 'ancestral source' in that which occupied the claim area at sovereignty. The Northern Territory submitted that his Honour had failed to make any express findings about the nature of the community at sovereignty. A proper determination would have reflected the evidence that members of each landholding group have rights and interests in their own estate or country under traditional laws and customs and have a connection with that country by those laws and customs. 97 It was also submitted that paragraph 6 of the determination provides that the native title rights and interests of members of the respective landholding groups are held subject to and are exercisable in accordance with the traditional laws and customs of the common law holders. This formulation was said to give those laws and customs significant work to do in defining the nature and extent of the native title rights and interests concerned. 98 Counsel for the Northern Territory made extensive reference to anthropological evidence in the course of argument on the appeal. A number of passages from the anthropological report dated November 1999 prepared by Mr Craig Elliott were cited. It is helpful to refer to some of them. By way of overview, in relation to the distribution of native title rights and interests, Mr Elliott said: 'Customary interests and entitlements are held communally by each landholding group to the exclusion of all others, except where there are areas jointly held with other landholding groups or where "custodians" or "caretakers" are involved.' He said that the distribution of interests and entitlements is regulated under acknowledged laws and observed customs. These also regulate the hierarchy of interests and entitlements: 'Under this framework, it is the apmerek-artwey and kwertengerl for each country who mediate the exercise of interests and entitlements, subject to the considerations discussed in section 6.2 below.' He identified the matters to which those interests and entitlements are subject: '(i) the recognised connections of members of landholding groups with certain parts of the application area (their "country"); and (ii) their accompanying right to regulate the exercise of interests and entitlements of others in that area.' Membership of a landholding group was said to entitle individuals to enjoy and lawfully claim possession of interests and entitlements irrespective of their demonstrated capacity to exercise and comprehend each of the interests and entitlements held by that group. The fact that customary interests and entitlements are held communally by each landholding group does not mean every individual member of the landholding group will possess and exercise exactly the same bundle of customary rights and entitlements. 99 Counsel for the Northern Territory also referred to the observation by Mr Elliott that: 'Members of each landholding group form a broad-based unit for the purpose of looking after country, regulating access for hunting and gathering, executing ceremonies relating to the country, maintaining knowledge concerning the country and speaking for the country. Each of these interests and entitlements are based on shared laws and customs and an established, special and exclusive relationship with the land, since time immemorial.' A distinction drawn between the claim community as a whole and the landholding groups was also cited: 'In the present case, as in most Australian Aboriginal traditions, there is a subtle though real distinction between the group possessing the land under traditional laws and customs, and the group customarily residing on it at any particular time (some of whom will hold interests and entitlements in it, while others do not). This distinction holds that long term residence alone does not generally confer core interests and entitlements, but may confer lesser interests and entitlements, such as the right to use the land for hunting. Over time, limited usufructuary rights conferred through residence may extend both geographically and conceptually.' 100 Counsel relied upon a paragraph from the report summary set out in Chapter 8. The passage cited stated: 'The report has stated that while a shared system of laws and customs exists across the region that includes the application area, recognition of localised social and territorial divisions is integral to this system. That is, communally held laws and customs recognise principles of connections to particular lands and waters ("country"). These connections are held by members of each landholding group. Possession of customary interests and entitlements in land derived from these connections, as recognised under the applicants' laws and customs.' 101 The preceding was all said to lend support to the proposition that native title rights and interests within the native title claim group were held severally by the seven named landholding or estate groups. The Northern Territory would not accept that the rights and interests associated with those groups could be viewed as an intramural allocation of native title rights and interests held communally by the entire native title claim group. 102 In fact Mr Elliott's report made express reference to the interconnections between the landholding groups that his Honour replied upon as indicative of a single landholding society. Mr Elliott said in his summary at the end of Chapter 4 of the report: 'While the applicants form several landholding groups and identify with four different languages, they are interconnected as a community through shared laws and customs concerning:

spiritual and ancestral connections to land;
the roles and rights of apmerek-artwey and kwertengerl;
connection to land through personal affiliations;
the roles of "custodians" or "caretakers"; and
principles governing succession to rights in land.' 103 In his supplementary report he said: '2.1 the Seven Landholding Groups in Combination The seven landholding groups in combination operate as a community, in my opinion. This is evidenced in that the applicants claim kinship relatedness (both through descent and intermarriage) and regard themselves as "one mob" with "one law" (over and above localised territorial affiliations); they share in common a wide variety of social and religious customs and beliefs; many applicants habitually reside together in the same locations and exist in a common social universe, both historically and currently. These communal interrelationships are not inhibited in any sense by language differences, since multilingualism in the application region is quite widespread and the local form of "Aboriginal English" is ubiquitous. The view that the seven landholding groups in combination operate as a community in no way denies that all members in each landholding group are connected with a particular stretch of lands and waters ("country"), and exercise customary interests and entitlements in relation to that country, to the extent that cultural and individual circumstances allow. Exercise of these rights does not occur in isolation from members of the other landholding groups. Geographic, social, religious and kinship based ties, not to mention the broad distribution of localised knowledge among elders of neighbouring groups, ensures that no landholding group functions as an entity alone from the others.' 104 Mr Elliott went on to observe that so far as the application area is concerned the community which holds interests and entitlements in it does not include all individuals affiliated with the four language groups with which the seven landholding groups and their countries have affiliation. The relevant community, he said, is confined to individuals identified with those languages who are also members of one or more of the seven landholding groups: 'In other words, only some Alyawarr, Warumungu, Kaytetye and Wakaya people are members of the community that has connections with the application area under the applicants' system of laws and customs.' 105 The learned trial judge set out in his reasons for judgment the applicants' contention that, at the time of sovereignty, the claim area was occupied by 'an organised society of indigenous people' - [71]. He noted their reference to the 'dense links' between the seven landholding groups arising out of mythological connections, multi-lingualisim, inter-marriage, shared residential and working history, joint ceremonial involvement and the facts of shared social history. He cited their submission that the seven landholding groups are a composite communal landholding society subject to one Aboriginal traditional law and operating within a 'common social universe' - [72]. He referred to the contention that '... through the continual observations of their traditional laws and traditional customs they had continued to have a substantial connection with the land in the claim area.' - [72]. He recognised that the task he was undertaking involved identification of the relevant 'society' of persons acknowledging traditional laws and observing traditional customs and its continuous existence since sovereignty. He cited Yorta Yorta about the necessity for the continued existence of the communal native title holders as a 'body united by its acknowledgment and observance of the laws and customs' - [74]. 106 His Honour reviewed the evidence noting the acceptance by the Northern Territory that the inference was open that the present indigenous communities are descended from the original inhabitants of the region in the sense that there is a substantial degree of ancestral connection between the present community and the original community. He found the evidence of Dr Smith, an archaeologist, supportive of the inference that the present claimant group or groups, however defined, is or are descended from the original inhabitants of the region. He considered there was sufficient evidence to conclude a substantial degree of ancestral connection 'between the present claim group or estate groups and the community or communities which existed in the claim area at the time of sovereignty' - [101]. 107 He found that at the time of contact, and by inference the time of sovereignty, the Aboriginal inhabitants of the area were members of an organised society. He said (at [110]): 'In this instance, in my view, the preponderance and weight of the available evidence, and the absence of any contradictory evidence, enables me firmly to draw the view that the ancestors of the present applicant group or groups were the indigenous inhabitants of the claim area at least for a period of time prior to first European contact with the first area, and in particular prior to the acquisition of sovereignty (be it in 1825 or 1788). I further infer that those ancestors and their descendents have inhabited the claim area continuously at least to the time of recorded European contact.' (sic) [the word 'to' in the last sentence should read 'from'] ... I infer that Aboriginal people were present upon and occupied the claim area at the date of sovereignty in a manner similar to that observed at first contact. I infer that the aspects of traditional law and traditional custom observed by Spencer and Gillen in 1901 were also in operation at the date of sovereignty and before that time. There is a high degree of likelihood that this is so when one considers the intricacy of the system and the almost complete absence of European contact prior to 1871.' 108 His Honour gave consideration to cases in which estate sub-groups had been found to constitute a broader composite community. He referred to Ward at first instance and Yarmirr. He said (at [132]): 'In this instance I am satisfied that the claim group as asserted by the applicants does constitute an identifiable community, that its members identify and recognise those persons within the description as members of the broader community notwithstanding their different estate groups, and that the community as described lives under a common set of laws and customs. Within the claim group, there are different subgroups or persons who have a particular responsibility for particular parts of the claim or particular sites. The evidence shows nevertheless that there is a significant crossing or sharing of such responsibilities across particular persons from different estate subgroups which arises under the broader communal laws and customs. Not all community members enjoy the same rights in respect of all parts of the claim areas. For example, there are areas where women and children may not go, but the fact that there may be different individual rights in respect of different parts of the claim area does not mean that the claim group does not enjoy communal rights and interests over the claim area.' 109 He found that the claim group by its members and through its traditional decision-making processes could collectively assert against non-members the right to enforce its native title rights and interests - [133]. The community which he found to exist '... is not a new community different from that which existed at the time of first contact with Europeans, or at the time of sovereignty'. The claim group or community today has its ancestral source in the community which occupied the claim area at the time of sovereignty. Moreover the material to which he had previously referred demonstrated the existence of '... a wider communal title than one on an estate group basis at that earlier period'. 110 The Northern Territory contended at the hearing of the appeal, by what appeared to be a distinct line of argument that the 'connection' to the land required by s 223(1)(b) was not made out at the level of the native title claim group in this case. The requisite connection could only be identified at the estate group level as a reflection of the identified native title rights and interests. Counsel submitted that 'each of these groups have a particular relationship with a part of the claim area but not with the whole of the claim area'. The word 'connection' referred to 'relationship with country' which would depend on the traditional laws and customs and what they say about relationship of the people with the land. Counsel posed the rhetorical question: '... what is the nature of the general relationship with the entire claim area.' She contended that the requisite relationship with the entire claim area had not been identified other than through membership of some community the boundaries of which were not at all certain. 111 The argument of the Northern Territory on this point took a restrictive view of 'connection' as it appears in s 223(1)(b). The concept has been discussed earlier in these reasons in the general consideration of the law relating to native title. It involves the relationship of the relevant community to its country defined by laws and customs which it acknowledges and observes. The relationship may be expressed in various ways including, but not limited to, physical presence on the land. It does not depend upon the precise locus, within a community, of native title rights and interests intramurally allocated, provided that they can be regarded as held by the community as a whole. 112 The reasoning and findings in the judgment under appeal reflected a mode of analysis of the evidence consistent with that explained in Yorta Yorta. The findings of fact on which the trial judge based his characterisation of the relevant community were not attacked on the appeal. The evidence of extensive connections across the seven groups supports his characterisation of them as one native title holding community. On the basis of his findings the necessary connection with the land in the claim area is shown to exist at a communal or claim group level. There was no error in the reasoning leading to the determination of communal rights. His Honour was correct to treat the relevant title as communal over the whole area rather than as severally held by the estate groups in respect of their particular estates. Issue 1 - The identification of native title holders - birthplace, adoption and non-descent connection 113 The next criticism of his Honour's identification of the native title holders related to the class of persons recognised by members of one or more of the seven landholding groups 'by virtue of non-descent based connections, including adoption or birthplace affiliation'. The primary question raised concerned the use of communal or estate group recognition as a criterion of membership. It was assumed by the Northern Territory, in its written submissions, that definition of the native title holders by reference to a criterion of recognition would require the application of traditional laws and customs by the relevant community or estate group members. So much can be accepted. The Northern Territory, however, submitted that this amounted to the determination of a right in members of the native title holders to enforce traditional laws and customs. Such a right, it said, was not a right with respect to land and waters. It complained also that the determination, in this respect, gave effect to traditional laws and customs as a system of law operating concurrently with non-indigenous law. 114 The determination, in form and in substance, is a determination of native title rights and interests. The trial judge found, correctly, that they are held by the entire community. He also found intramural allocations of particular rights and responsibilities. The membership of any indigenous society can be defined by rules associated with particular rights and interests such as those accruing to the patrilineal descendents of estate group members. Membership rules may also apply communal recognition and qualification such as birthplace or spousal affiliation. To build in a criterion of group acceptance to the definition of membership of the relevant community is not to erect or recognise a right to enforce traditional law and custom. The traditional law and custom which defines membership may allow for incorporation of persons who are recognised as members and who can therefore share in the communal ownership of the defined native title rights and interests without attracting the allocation of any particular individual rights and responsibilities with respect to land or waters. If the native title rights and interests are held communally, as in this case, they are not affected by a rule of membership which allows for recognition of particular persons according to traditional law and custom. The interpretation and application of laws and customs by which membership is defined, even if not expressly incorporating a requirement for 'recognition' by members of the relevant society, is likely to involve some process of interpretation and consequential acceptance or non-acceptance of individual membership. The Northern Territory's submissions would require the Court to descend to the fine detail of possible applications of traditional law or custom to a range of cases of non-descent based connection where an issue of recognition of membership may arise. 115 The applicants accepted that there was a problem of uncertainty generated by the use of the word 'including' in par 2(b) of the determination. They proposed an alternative as follows: '(b) recognised by the persons referred to in sub-paragraph (a) hereof, as members of one or more of the seven landholding groups by virtue of non-descent based connections, being adoption or birthplace affiliation.' 116 The form of the determination in par 2(b), subject to the amendment conceded by the applicants, involves an acceptance that the community of native title holders is a living society. It is not consistent with the purposes of the NT Act, nor productive of any practical benefit to require that the laws and customs of indigenous society and the rights and interests arising under them be presented as some kind of organism in amber whose microanatomy is available for convenient inspection by non-indigenous authorities. The substantive objection made to this aspect of the determination by the Northern Territory is not accepted. Issue 1 - The identification of native title holders - spousal affiliation 117 The Northern Territory argued that under s 223 the native title holders must not only have rights and interests in relation to the determination area under their traditional laws and customs but must also have a connection with the land and waters by those laws and customs. It was accepted that 'rights and interests in relation to the determination area' and 'connection' with it are not necessarily the same thing. So much accords with the general discussion of the 'connection' requirement earlier in these reasons. In the cases of spouses it was said that unless they have a 'connection' with the country any rights and interests they have cannot be determined as native title. However, where as in this case the rights and interests are held communally the relevant connection is that between the community as a whole and the land and waters the subject of the claim. Although it might be said that spousal connection to the community does not bring with it a connection between the spouse and the land, that is not the connection that is relevant in this case. Issue 1 - The identification of native title holders - general conclusion 118 For the preceding reasons, and subject to the amendment conceded by the applicants, the Northern Territory's contentions on the first issue raised by the grounds of appeal do not succeed. Issue 2 - The native title rights and interests - general 119 A number of the native title rights and interests set out in the determination were challenged by the Northern Territory on various bases including the proposition that they were not rights or interests 'in relation to land or waters'. The relevant part of the determination is par 3. It is convenient to deal with the native title rights and interests in the order in which they appear in that paragraph. Each of them is to be read with the opening words of par 3. They are there expressed to be subject to pars 4 and 5 and to include the right to conduct activities incidental to them. Issues raised about par 3 in the cross appeal, specifically par 3(a) and a proposed 3(j), will also be dealt with in this section. 120 There was a specific criticism of the opening words of par 3 which included, in respect of the subsequently enumerated native title rights and interests, 'the right to conduct activities incidental to them'. It is plain that each of the native title rights and interests defined in par 3 includes a right to conduct activities necessary to give effect to it. The formulation adopted by his Honour was no doubt directed to those incidents of the defined rights. As framed however, it could arguably run further. To put the matter beyond doubt those words in par 3 should be altered to read: 'including the right to conduct activities necessary to give effect to them.' Issue 2 - The native title rights and interests - hunting and fishing and use of resources 121 The first of the defined native title rights and interests appears in par 3(a): '(a) the right to hunt and fish together and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax and to have access to and use of water on or in the land.' This right was not challenged by the Northern Territory. It was the subject of the cross-appeal to substitute for the word 'together' the words 'to gather'. This appears to be a typographical error and was not disputed. On that basis par 3(a) should read: '(a) the right to hunt and fish, to gather and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax and to have access to and use of water on or in the land.' Issue 2 - The native title rights and interests - the right to live on the land and to erect structures 122 Paragraph 3(b) identified the following right: '(b) the right to live on the land, to camp, erect shelters and other structures, and to travel over and visit any part of the land and waters.' 123 The Northern Territory took issue with this right as formulated on the basis that it embraced a right to live permanently on the land in the sense of establishing permanent communities and erecting permanent structures. The objection was based upon the effects of prior grants of pastoral leases. Each of the leases granted in the claim area between 1881 and 1992 had conferred on the lessee the right to use the land for pastoral purposes. It was common ground at the trial that these pastoral leases were previous non-exclusive possession acts of the Territory for the purposes of the Validation Actandthe Native Title (Effect of Past Acts) Act 1995 (NT). 124 The effects of such past acts on native title rights and interests are defined in Pt 3 of the Validation Act. Part 3C deals with the effects, in the Northern Territory, of previous non-exclusive possession acts attributable to the Territory on native title. Section 3B in Pt 1 defines that class of past act thus: '(1) For the purposes of this Act, a previous non-exclusive possession act is a previous non-exclusive possession act within the meaning of section 23F of the Commonwealth Act, which meaning in so far as it relates to the Territory is set out in Schedule 3 to this Act. (2) In the event of an inconsistency between section 23F of the Commonwealth Act and Schedule 3 to this Act, section 23F of the Commonwealth Act prevails.' The relevant provisions of Pt 3C are ss 9K, 9L and 9M. They provide as follows: '9K Application (1) Subject to subsection (2), this Part applies to all previous non-exclusive possession acts attributable to the Territory. (2) This Part does not apply to the grant of a pastoral lease or an agricultural lease to which section 5 applies. 9L Rights and interests that are not inconsistent with native title To the extent that a previous non-exclusive possession act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned - (a) the rights and interests granted by the act; and (b) the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them. 9M Rights and interests that are inconsistent with native title (1) To the extent that a previous non-exclusive possession act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned - (a) if, apart from this Act, the act extinguishes the native title rights and interests - the native title rights and interests are extinguished; and (b) in any other case - the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re-made, re-granted or extended, is in force. (2) The extinguishment under subsection (1)(a) is taken to have happened with the act was done.' Sections 9L and 9M reflect the provisions of s 23G of the NT Act. 125 By s 9NA previous non-exclusive acts which took place before the establishment of the Territory are, for the purposes of Pt 3C attributable to the Territory. 126 Section 11 in Pt 5 of the Validation Act replicates, inter alia, the provisions of s 23H of the NT Act. It provides: 'Preservation of beneficial reservations and conditions If - (a) an act attributable to the Territory contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or (b) the doing of the act would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage), nothing in Part 3, 3A, 3B or 3C affects that reservation or condition, or those rights or interests.' 127 There are no current pastoral leases in respect of the claim area. All but two of the pastoral leases which have been granted in the claim area since 1881 contained reservations in favour of Aboriginal people. The rights conferred by those reservations were summarised by his Honour in the reasons for judgment at [265]: 'The rights preserved by the reservation have been expressed slightly differently in the reservations from time to time, but are essentially the same. They are the rights to enter and to be on the land, to have access to springs and natural waters on the land, to erect shelters and to live on the land, and the right to obtain food.' Nothing in the parties' submissions turned on the terms of a particular reservation. It was common ground at trial that the reservations did not replace native title rights with statutory rights. They preserved existing native title rights - [252]. As to the pastoral leases PL2489 and PL2490 granted without reservations under the Crown Lands Ordinance 1912-1923 (Cth) the Northern Territory did not contend for any larger extinguishing effects than those of the earlier pastoral leases referred to. 128 The Northern Territory submitted that none of the reservations contained in the pastoral leases preserved rights to 'live on the land'. They were framed in terms of 'full and free rights of ingress, egress and regress into, upon and over the said lands [and] to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect' - [266]. Another expression of the reserved right was in terms of an entitlement to 'inhabit the leased land - (a) to enter and be on the leased land' - [267]. The Northern Territory submitted that a right to 'live' on the land conveys permanency and a right of occupation. Given that exclusive native title is precluded by the partial extinguishing effects of prior grants, a right to occupy the land is inappropriate implying a right to control access. The same argument was advanced against the existence of a native title right to 'erect shelters and other structures' on the basis that it could be interpreted to permit the erection of permanent shelters and structures. 129 The underlying issue in relation to this right is the scope of inconsistency between the historic pastoral leaseholders' rights and the applicants' native title rights and interests. The content of the reservations is incidental. They do not define the limits of native title rights and interests in relation to the land. They may however be taken into account in determining the scope of the pastoral leaseholder's rights in assessing the extent of their inconsistency with the asserted native title rights and interests - Ward HC at [417]. Despite some emphasis on reservations in its written submission the Northern Territory's core argument was that a right to live permanently on the land or to erect permanent structures on it was inconsistent with the rights of pastoralists to use the land as conferred by their pastoral leases. 130 The question of permanency in living arrangements on the land including the erection of permanent structures was not expressly considered by the Full Court or the High Court in the Ward litigation. However in Daniel v State of Western Australia (No 2) [2003] FCA 1425, Nicholson J identified but did not resolve what he regarded as a potential inconsistency between a pastoral leaseholder's rights and a right to live permanently at a place on the land. His Honour accepted that a native title right to 'remain' on the land could be exercised consistently with the pastoral leaseholder's rights. In the event he construed the right to 'live' on the land as a right to 'live temporarily on the areas as part of camping and for that purpose to build shelters'. So construed there was no inconsistency with pastoral leasehold rights. In Neowarra, Sundberg J considered a propounded native title right to live, build structures and establish and maintain communities anywhere on a pastoral lease. He found this to be inconsistent with the general right to conduct pastoral activities on the whole of the land and with many of the particular rights conferred on pastoral leaseholders - [502]. As for 'camping', on the other hand, his Honour said (at [504]): 'This activity is encompassed in the notion of access to land for traditional purposes. Setting up a temporary camp as opposed to permanent settlements is not inconsistent with the rights of the pastoralist, though in the event of a conflict of activities, the rights of the pastoralist will prevail.' In Attorney-General (NT) v Ward (2003) 134 FCR 16 (Ward FC 2), the Full Court, on remittal from the High Court, determined by consent native title rights and interests held by the applicants by way of non-exclusive rights to occupy, use and enjoy land and waters in accordance with their traditional laws and customs including as an incident of that entitlement: '(b) the right to live on the land, to camp, to erect shelters and to move about the land.' 131 The pastoral leases which have affected the claim area in the present case are historical grants. The relevant extinguishment of native title rights and interests derives only from inconsistency with the rights historically conferred by those leases. No question of prospective activity under a subsisting pastoral lease arises. Consistently with what was said by Nicholson J in Daniel (No 2) and Sundberg J in Neowarra, the right to 'live' on the land can be interpreted as a right to live permanently on the land without any conflict with pastoral leaseholders' rights. That right does not necessarily involve permanent settlement at a particular place. The issue therefore reduces to the question whether a native title right of permanent settlement is inconsistent with a pastoral leaseholder's rights. There is no logical reason why it must be so. Just as the right to live permanently on the land does not necessarily give rise to inconsistency with the pastoral leaseholder's rights, neither does the right to erect a permanent structure. The existence of such a structure does not preclude a pastoralist's right to require its removal in the event that it conflicts with a proposed exercise by the pastoralist of a right under the lease. It is not inevitable that such a conflict will arise. 132 The inconsistency posited by the Northern Territory in respect of the grant of historical pastoral leases long expired, is based on a theoretical conflict which would not inevitably have occurred. No inconsistency of rights giving rise to extinguishment of the native title right to live on the land and to erect permanent structures thereon is demonstrated. The concept of 'permanency' referred to here is, in any event, a relative one. 133 The right defined in par 3(b) to live on the land, to camp, to erect shelters and other structures, and to travel over and visit any part of the land and waters, should stand. Issue 2 - The native title rights and interests - teaching physical and spiritual attributes on the land 134 Paragraph 3(c) of the determination defined the following right: 'the right to engage in cultural activities on the land, to conduct ceremonies and hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters and to participate in cultural practices relating to birth and death, including burial rights;' The Northern Territory submitted that the right asserted in par (c) to teach the physical and spiritual attributes of places and areas of importance on or in the land or waters is akin to a right to maintain and protect cultural knowledge. This was a right rejected by the High Court in Ward HC as a right in relation to land or waters. It relates to information not land. 135 The right to teach the physical and spiritual attributes of places and areas of importance, if specified as a right to teach on the land, requires access to and use of the land for that purpose. So defined, it is a right in relation to the land. In order to avoid ambiguity par 3(c) should be reworded. A reformulation to limit the rights by confining their exercise to activities on the land was proposed by the applicants and not opposed by the Northern Territory. The proposed reformulated par 3(c) is in the following terms: 'the right to do the following activities on the land: (i) engage in cultural activities; (ii) conduct ceremonies; (iii) hold meetings; (iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and (v) participate in cultural practices relating to birth and death, including burial rights.' The right so reformulated should be substituted for that in par 3(c) of the determination. Issue 2 - The native title rights and interests - the right to protect sites of importance 136 Paragraph 3(d) of the determination defined a right of access to the land and to protect sites on the land in the following terms: 'the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements.' 137 The Northern Territory submitted that the right to protect sites under traditional laws and customs necessarily involves the assertion of a right to control access and to exclude others from the land. The native title rights and interests recognised could not include elements allowing for the exclusion of others. The historical grant of pastoral leases in the area had extinguished the right to exclude and control access to the land so removing the very substance of the right to protect sites. 138 The applicants submitted that the word 'protect' does not, in ordinary usage, imply the exercise of control over the matter or thing being protected. The right could include protecting places from environmental damage or degradation and seeking to prevent unwitting damage or disturbance by animals or people. None of these activities, it was said, would necessarily involve any control over access to the land by others. 139 The learned trial judge said (at [322]): 'I do not regard the use of the word 'protect' as inappropriate. It contemplates conduct in relation to places and areas of importance which may fall well short of controlling access to those places in a way which is inconsistent with previously granted rights, and the exercise of the right to be recognised is subject to the prevailing activities under the exercise of other rights: s 44H of the NT Act. It is a right which I consider exists independently of the Northern Territory Aboriginal Sacred Sites Act (NT).' 140 One answer to the Northern Territory objection is that the rights determined in par 3 are expressly stated in par 4 to be not exclusive of the rights and interests of others in relation to the land (other than the land covered by the townsite of Hatches Creek). In Ward FC 2, the Full Court considered a submission by the Commonwealth that the word 'protect' would give native title holders an entitlement to exclude others from the land. The Court there said (at [25]): 'We do not agree. The notion of protection of significant Aboriginal sites is well understood. It may involve physical activities on the site to prevent its destruction, but it also extends to control of ceremonial activities. Particularly having regard to the existence of subclause (e), we do not think the words would be read as implying a general control of access.' Notwithstanding the decision of the Full Court in Ward FC 2, counsel for the Northern Territory pressed for a formulation of par 3(d) which would make clear the limitation on the scope of the right to protect. However, the determination read as a whole does not allow ambiguity of the kind propounded in connection with the word 'protect'. His Honour has not been shown to have erred in this matter. The right as formulated in par 3(d) of the determination should stand. Issue 2 - The native title rights and interests - the right to make decisions about access to and use and enjoyment of the land 141 The native title rights stated in pars (e) and (f) can be dealt with together. They are in the following terms: '(e) the right to make decisions about access to the land and waters by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters; (f) the right to make decisions about the use and enjoyment of the land and waters and the subsistence and other traditional resources thereof, by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters.' 142 The applicants accepted at trial that the right to exclude all others from the claim area had been extinguished by the grant of pastoral leases that conferred rights inconsistent with a native title right to control access to the land. In the joint judgment in Ward HC, dealing with the extinguishing effect of the grant of pastoral leases by the State of Western Australia, their Honours said (at [192]): 'These were acts involving the grant of rights and interests inconsistent with so much of the native title rights and interests as stipulated for control of access to the land the subject of the grants. The pastoral leases were acts attributable to the State which denied to the native title holders the continuation of a traditional right to say who could or who could not come onto the land in question. That consequence flowed apart from the provisions of the State Validation Act. It followed that to that extent the grants of pastoral leases extinguished native title rights and interests within the meaning of par (b)(i) of s 12M(1).' And at [194]: 'The right to control access apart, many other native title rights to use the land the subject of the pastoral leases probably continued unaffected.' 143 The learned trial judge said (at [270]): 'It is obvious that rights under pastoral leases and statutory rights of entry for explicit purposes meant that native title holders would not have been able to prevent persons from entering the land in the exercise of those rights. On the other hand, the rights granted to the pastoral lessees were not rights granted to all persons, and pastoral lessees were obliged to exercise their rights for the purpose of the lease. The preserved rights are those to a pastoral lessee permitting access by the lessee or persons to whom the lessee permitted to enter, and reserved or (sic) statutory rights for reserved purposes such as stock routes. I do not consider that it is inconsistent with such rights that the native title right to control access to the land should survive to exclude persons who might wish to enter the land to do things unrelated to the pastoral lease or without some other reserved or statutory rights.' His Honour said further (at [271]): '... the inconsistency arises because the pastoral lease authorised the entry of a definable group of persons under it. It did not authorise the entry of all or any persons under it. The lessee could exclude uninvited persons, subject to the reservation in favour of Aboriginal persons. That right would run in tandem with the right in the native title holders to control access: s 44H of the NT Act. Once the lease came to an end, the Aboriginal native title holders would have whatever rights survived to control access to the claim area. Their right would have been extinguished to the extent that it was exclusive for the reason already given, and to the extent that it might otherwise have been exercisable in relation to the previous pastoral lessee and the lessee's authorised entrants. But it does not follow, in my view, that the right of a definable group of persons under the lease to access the claim area is inconsistent with (and so extinguishes) the non-exclusive native title right to control access to the claim area in respect of persons outside that definable group of persons.' 144 His Honour gave examples of persons who were seeking to enter the land to film a sacred site or to set up a fishing camp at a water hole where camping or taking fish was prohibited or regulated by the traditional laws and customs of the native title holders. His Honour also held (at [272]) that it was consistent with the reservation in the historical leases that the native title holders, in accordance with their traditional practices could continue to control entry to their country by other Aboriginal people to the extent that that right was not in conflict with rights under the pastoral leases. At [274] his Honour said: 'I have reached the view that the native title rights to control access to the claim area and to make decisions about its use are not so inconsistent with rights under the pastoral leases as to lead to their total extinguishment.' His Honour also considered the effect of the current lease CLP 1117 in favour of the Corporation. He concluded, however, that the applicants' native title rights and interests had not been further extinguished by CLP 1117 beyond the extinguishment effected by previous pastoral leases. This conclusion was the subject of a separate challenge under appeal ground 47. 145 In the course of the hearing the Court raised the possibility that pars 3(e) and (f) could be replaced by a native title right defined in terms of par 5(e) in the decision of the Full Court in Ward FC 2. That provided for: '5(e) The right to make decisions about the use and enjoyment of the NT determination area by Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders.' This, however, was not supported by the Northern Territory which pointed out that it had taken a neutral position on that aspect of the determination in Ward FC 2 albeit the inclusion of the right in 5(e) had been opposed by the Commonwealth and Western Australia. 146 The grant of historical pastoral leases had a partially extinguishing effect upon native title rights and interests in the determination area insofar as they comprised rights to exclude other persons from entering upon the land. The question is whether that partial extinguishment left in place a qualified right to exclude persons other than the relevant pastoral lessees and their invitees or other statutory entrants. The Northern Territory contended that the native title rights and interests set out in the determination must be native title rights and interests that existed at sovereignty. It was not open to determine, post-extinguishment, a qualified residual right which did not exist at sovereignty. 147 In Neowarra the applicants sought the right to make decisions about use and enjoyment of the claim area expressed as a qualified right to make access decisions in relation to persons other than persons holding a pastoral lease or exercising a statutory right in relation to the use of the land and waters. Sundberg J said (at [475]): 'The amendment does not avoid the difficulties. It confuses the separate processes required by the legislation. First there must be a determination of each native title right and interest. Then there must be a comparison between that right and interest and other interests that exist in the claim area. Each right or interest now propounded by the applicants for comparative purposes must be a native title right or interest. No native title right approximating to the reformulation is established by the evidence... It is not surprising that the evidence does not establish the amended right. The subject matter of the qualification (a pastoral leaseholder and a person exercising a statutory right) did not then exist.' His Honour went on to identify a further difficulty with the amendment by reference to the decision of the High Court in Yarmirr (at [98]). In that case the applicants sought to express wide-ranging native title rights in the sea as subject to public rights to navigate and fish and the right of innocent passage. Gleeson CJ, Gaudron, Gummow and Hayne JJ in their joint judgment said the two sets of rights were fundamentally inconsistent and could not stand together. It was not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests was to be subject to the other public and international rights. Sundberg J in Neowarra said (at [475]): 'That applies to the attempt to reconcile the fundamentally inconsistent native title right to make decisions about the use and enjoyment of the land and waters and the rights granted by a pastoral lease.' His Honour applied the same reasoning to reject a proposed right to control the access of others to the claim area - [477]. 148 There are dicta in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward HC which militate against the applicants' contentions. Reference has already been made to what their Honours said in pars [192] and [194] of the joint judgment. Moreover their Honours said at [62] that without a right, as against the whole world, to possess the land 'it may greatly be doubted that there is any right to control access to the land or make binding decisions about the use to which it is put'. Having regard to what was said in the High Court it seems that the right to control access cannot be sustained where there is no right to exclusive occupation against the whole world. The underlying rationale for that conclusion is that particular native title rights and interests cannot survive partial extinguishment in a qualified form different from the particular native title right or interest that existed at sovereignty. The rights set out in pars 3(e) and (f) of the determination do not resemble the holistic right of exclusion which went with exclusive possession and occupation at the time of sovereignty. In this respect the appeal should be allowed and pars 3(e) and 3(f) deleted from the determination save as to the area of the Hatches Creek townsite where prior extinguishment can be disregarded because of the application of s 47B of the NT Act. 149 The applicants proposed as an alternative to pars 3(e) and 3(f), a paragraph (fa) in the following terms: '... As an incident of their rights in relation to the use and enjoyment of the land and waters, a right to take appropriate steps according to law to prevent or mitigate any activity or presence of persons on the land which - (a) is without or in excess of lawful authority; and (b) interferes with or impairs the use and enjoyment of the land in accordance with rights and interests identified above.' 150 The difficulty with that alternative is that it imports a right of exclusion which is inconsistent with the reasoning upon which pars (e) and (f) are wanting. Moreover it is very difficult to interpret and apply par (fa) to support a right to exclude a person from the land in the circumstances defined in that paragraph. 151 Although par 5(e) of the determination in Ward FC 2 had the sanction of the Full Court in that case, it is not without difficulty. There is a risk that it may be seen as creating a criterion for exclusion based in part upon Aboriginality. In any event it does not appear in this case that there are persons other than the native title holders who are bound by their traditional laws and customs. The position would be different were the native title holders a subset of a wider society incorporating other groups bound by the same traditional laws and customs. An example of such a case is De Rose v State of South Australia [2002] FCA 1342 where the native title holders were found to be a subset of a society comprising the Western Desert Bloc. To the extent that the native title holders could collectively exclude particular members from particular areas, such as women from law grounds, that is a matter best left to the intramural workings of the traditional laws and customs. It is not a matter requiring determination as a distinct native title right. Issue 2 - The native title rights and interests - the right to trade 152 Paragrah 3(g) of the determination defined the following right: 'the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters;' The Northern Territory contended that the right to trade is not a right or interest in relation to land or waters notwithstanding that the asserted objects of the trade are resources of the land and waters. The same, it was said, is true of the right to share or exchange resources. The applicants however responded that the right is a right to trade in the produce of the land and therefore has a relationship to the land. The Northern Territory argued that in Yarmirr at first instance Olney J held that a claimed right to trade was not a right or interest in relation to land or waters notwithstanding that its asserted objects were the resources of the claim area. 153 The right to trade is a right relating to the use of the resources of the land. It defines a purpose for which those resources can be taken and applied. It is difficult to see on what basis it would not be a right in relation to the land. 154 Olney J in Yarmirr at first instance referred to evidence of exchange of goods. The evidence was that of Mary Yarmirr. It related to trade by way of exchange, between indigenous groups of items including spearheads, stone axes, bailer shells, cabbage palm baskets and turtle shells. His Honour said (at 587): 'Whilst there can be no doubt that the trade here described related to objects which can properly be categorised as resources of the waters and land, the trading was constituted by the exchange of goods. The so-called "right to trade" was not a right or interest in relation to the waters or land. Nor were any of the traded goods "subsistence resources" derived from either the land or the sea.' 155 Olney J's observation does not involve the proposition that trade in the resources of the land can never be a 'right' in relation to the land. There the evidence was of an activity. It did not amount to evidence of the exercise of a right. Indeed his Honour referred to it in his judgment as a 'so-called right to trade'. Further evidence to which Olney J referred fell short of establishing an asserted historic trade between the forbears of the Croker Island applicants and the Macassans. There was no evidence that, since European contact, members of the Croker Island community had engaged in trade by way of sale or exchange in the resources of the waters of the claimed area. Nor was there evidence to suggest that trade in the resources of the claimed area form part of the traditional customs of their ancestors. Although cited by the Northern Territory in relation to the right to trade in this case, Yarmirr cannot be taken as authority for the proposition that there cannot be a right to trade in the resources of the land as a right in relation to the land. 156 The Northern Territory argued that the right to trade in the resources of the land necessarily implies a native title right to exclusive possession thereof. It was submitted that his Honour's reference to Yanner and the absence of any right to own flora and fauna implied a view that the evidence was consistent with a native title right to take flora and fauna but not to own it. In any event the evidence was said not to support any right to 'trade' in the resources of the land as that term is generally understood. The evidence was limited to: (a) evidence of sharing and exchanging (using the term 'swapping') ochre, spears, boomerangs, feathers and hair belts for personal use; (b) evidence of sharing and exchanging goods in a ceremonial context, referred to as 'tyenkerr', which witnesses described as '[l]ike a thank you' or 'to pay him off'; (c) evidence of the collection of beans to make beads sold to a shop for purchase by tourists. The Northern Territory argued that that evidence made no reference at all to any commercial or profit motives or any level of organised business operation. 157 In his reasons for judgment the learned trial judge found that the use or exercise of the right to use and enjoy the resources of the claim area was well supported. Evidence had also been given by the applicants that they had asserted the right to use the natural resources of the claim area including water, trees, bush medicines, soakages, sacred sites and other things including ochre from various places in the claim area. His Honour said (at [160]): 'In my judgment, it is also consistent with the evidence to which I have referred that the applicants, under their traditional laws and customs, have the right to share, exchange or trade subsistence and other traditional resources obtained from or on the land and waters constituting the claim area.' The evidence relied upon by his Honour in this respect was not exposed in any detail beyond his earlier reference to the evidence of the applicants that they had asserted the right to use the natural resources of the claim area. In the circumstances, it is difficult to see how this evidence was capable of supporting a finding of a native title right to trade in the resources of the area. There appears to have been no evidentiary support for this aspect of the determination. Paragraph 3(g) should therefore be varied to read: 'the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.' Issue 2 - The native title rights and interests - the right to control disclosure of spiritual beliefs or practices 158 Paragraph 3(h) of the determination related to the protection of traditional knowledge: 'the right to control the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters;' 159 The Northern Territory contended before the learned trial judge that the propounded right was not one which meets the requirement of s 223(1)(b) namely that it be in relation to the claim area. It was argued before his Honour that the spiritual beliefs upon which the claimed right is based may be about the claimed area and its surrounding areas but did not have the quality necessary to fall within the definition of native title rights and interests. 160 His Honour considered that the right is one which has a connection with the claim area so as to come within the definition in s 223(1). The critical question which he identified was whether the claim group by the traditional laws and customs which give rise to the particular native title rights and interests has a connection with the claimed area. He said (at [324]): 'The expression of the claimed right is more refined, or more specifically directed to meeting the requirement of s 223(1)(b), than those considered by the High Court in Ward at 31-32, [58]-[60] or by O'Loughlin J in De Rose at [51]. The evidence discloses that certain of the spiritual beliefs or practices of the claim group are 'site specific', and the activities conducted pursuant to them relate to particular locations in the claim area. As expressed, the proposed right firstly relates only to the spiritual beliefs which concern particular locations in the claim area. And secondly, it seeks to 'control' the disclosure of those beliefs and the material objects and other 'paraphernalia' associated with them. It is not directed to controlling the use of some intellectual property, but to controlling its acquisition. I am confident there is a right to control the acquisition of such information in accordance with traditional laws and customs of the claim group. By the 'site specific' nature of those particular spiritual beliefs, in my view the claim group has a connection with the claim area. As expressed, I do not consider the right is 'something approaching an incorporeal right akin to a new species of intellectual property' (cf the majority in Ward at 31 [59]).' 161 In Ward FC 1 the Full Court majority said of the claimed right to protect and prevent the misuse of cultural knowledge (at [666]): 'Although the relationship of Aboriginal people to their land has a religious or spiritual dimension, we do not think that a right to maintain, protect and prevent the misuse of cultural knowledge is a right in relation to land of the kind that can be the subject of a determination of native title.' In the High Court in Ward HC the majority joint judgment held that the Full Court had not erred in their rejection of the proposed right. Their Honours identified the imprecision of the term 'cultural knowledge' as the first difficulty facing that submission (at [58]). They also characterised the claimed right as 'something approaching an incorporeal right akin to a new species of intellectual property to be recognised by the common law under par (c) of s 223(1)'. - (at [59]). The essential point was the requirement of 'connection' in par (b) of the definition in s 223(1) of native title and native title rights and interests. They said (at [60]): 'The scope of the right for which recognition by the common law is sought here goes beyond the content of the definition in s 223(1).' The Northern Territory submitted that the term 'spiritual beliefs and practices' suffered from the same imprecision as the term 'cultural knowledge' considered by the High Court in Ward HC. Moreover it is not a right 'in relation to land'. The fact that the spiritual beliefs and practices are about areas of land or waters within the claim area does not change their fundamental nature of the right asserted. 162 In Neowarra the applicants sought to formulate this class of native title right to avoid the difficulties exposed in Ward HC. They expressed it thus: 'To prevent the disclosure otherwise than in accordance with traditional laws and customs [of] tenets of spiritual beliefs and practices (including songs, narratives, rituals and ceremonies) which relate to areas of land or waters, or places on the land or waters.' However, as Sundberg J observed (at [487]): 'The reformulation does not avoid 'the fatal difficulty' to which the joint judgment referred at [60]. It will still involve the 'restraint of visual or auditory reproductions of what was found [on the land] or took place there.' The propounded right, notwithstanding its formulation in the present case in par 3(h) of the determination, is not a right in relation to land. 163 The applicants proposed a further reformulation at the hearing of the appeal thus: '(h) the right to such control of access to places on the land and waters as will prevent the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters.' This reformulation runs into the difficulty facing pars (e) and (f) in purporting to confer a right to exclude persons from entry onto the land under certain circumstances. 164 For the preceding reasons par 3(h) should be deleted from the determination. Issue 2 - The native title rights and interests - the right to determine membership of the landholding group 165 Paragraph 3(i) identified a further right in the following terms: 'the right to determine and regulate the membership of and recruitment to a landholding group.' Notwithstanding the inclusion of this right in the determination, the applicants accepted that it is more appropriately recognised as part of their laws and customs rather than as a right or interest in relation to the claim area. It does not appear to be a native title right or interest in relation to the land or waters. In any event it is subsumed by the provisions of par 2 of the determination in relation to the identification of the native title holders. Paragraph 3(i) should therefore be deleted from the determination. Issue 2 - The native title rights and interests - the right to be acknowledged as the Aboriginal owners of the land 166 The applicants sought, in their cross appeal, the insertion of an additional right 3(j) defined thus: 'the right as against the whole world, including other Aboriginal groups or persons, to assert and be acknowledged as the Aboriginal owners of the land and waters in accordance with traditional laws and customs.' It is said that the omission of this right from the determination was an oversight. The applicants referred to [67] in his Honour's judgment in which he referred to the proposed par 3(j). His Honour discussed at [324] the native title rights set out in par 3(h) which he found to have 'a connection with the claim area so as to come within the definition in s 223(1) of the NT Act'. For the reasons expressed earlier in relation to the appeal against the inclusion of par 3(h) in the determination that paragraph could not stand. 167 His Honour then proceeded to make a finding in favour of the inclusion of the proposed par 3(j) for reasons which were substantially the same as his reasons for including 3(h). He said (at [325]): 'The right claimed in (j) is, in my judgment, for the same reasons a native title right possessed under the traditional laws and customs of the claim group by reason of which the claim group has a connection with the claim area. Olney J in Hayes at 148 made a similar determination.' As his Honour pointed out, Olney J in Hayes v Northern Territory (1999) 97 FCR 32 made a determination which included a similar right expressed thus: '3(b) The right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates within the determination area.' There is no doubt that the omission of the proposed par 3(j) from the determination was an oversight on the part of his Honour. However, the question remains whether it is a native title right that can properly be the subject of a determination under the NT Act. 168 The meaning of the proposed right to be acknowledged is elusive. The questions posed by the Northern Territory are fundamental. How would the right be infringed? How could it be enforced? Native title which is recognised by the common law, albeit not as a common law tenure '... may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual' - Mabo (No 2) at 61 (Brennan J). Although that passage did not mandate enforceability as a condition of common law recognition, there is a real question whether common law recognition has any role to play in relation to a right or interest which is incapable of enforcement. This is not to adopt the tendency deprecated by the Privy Council in Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 403 of rendering native title 'conceptually in terms which are appropriate only to systems which have grown up under English law' - Mabo (No 2) at 84 (Deane and Gaudron JJ). But symbolic statements which are empty of content have no place in a determination of rights. They promise much and deliver little but disappointment. Paragraph 3(j) is incapable of precise definition and incapable of enforcement. It should not be included in the determination. Paragraph 8(e)(vi) of the determination, which refers to it, should also be deleted. Issue 3 -The Hatches Creek townsite and the application of s 47B of the NT Act 169 The Hatches Creek townsite is a discrete part of the claim area not contiguous with any other part. It is surrounded by land owned by the Anurrete Aboriginal Lands Trust. It occupies some 27.12 hectares. It is vacant Crown land. Although it was set aside for a proposed town in 1953, no town has ever been established there. 170 The Hatches Creek area was the subject of pastoral lease and grazing licence grants in the 1890's and subsequently. It was proclaimed as part of the Animbra Commonage Reserve in 1919 but was never used for commonage purposes. A proposed townsite was surveyed in 1952. A proclamation of the township was made in the Northern Territory Government Gazette of 22 July 1953. At the same time the Commonage Reserve was revoked in relation to the area covered by the proclamation. There was no suggestion that any of the prior pastoral leases granted over Hatches Creek were previous exclusive possession acts. It remains vacant Crown land. 171 In broad terms, s 47B provides for prior extinguishment to be disregarded where an area of vacant Crown land, the subject of a native title determination application, was occupied by one or more members of the native title claim group at the time that the application was made. The applicants submitted at trial that the requisite occupation could be inferred from a course of conduct over time. 172 Hatches Creek had no physical features or significance to suggest it was continually occupied in the sense of having permanent residents at the time of the application - [312]. The learned trial judge referred to the consideration by Olney J of the concept of occupation in s 47B in Hayes at 144 [162]: '(c) The occupation of land should be understood in the sense that the indigenous people have traditionally occupied land rather than according to common law principles and judicial authority relating to freehold and leasehold estates and other statutory rights. The use of traditional country by members of the relevant claimant group which is neither random nor co-incidental but in accordance with the way of life, habits, customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.' His Honour concluded that, when the application was made, members of the claim group occupied Hatches Creek in the sense outlined by Olney J in Hayes. They lived nearby and hunted and traversed the land around Alepeyewenh which, he inferred, included Hatches Creek. His Honour concluded that s 47B did apply to Hatches Creek and that the rights of the claim group, which he found to exist, were, in relation to Hatches Creek, exclusive. 173 In the notice of appeal the Northern Territory raised the following grounds relevant to the determination which applied to Hatches Creek: '48. His Honour erred in finding that s 47B of the NTA had any application to the Hatches Creek Township. 49. His Honour erred in that he should have found that when the application was made, the area of Hatches Creek Township was covered by a proclamation and/or dedication such that that area did not fall within s 47B(1)(b)(ii) of the NTA. 50. In the alternative to ground 49, his Honour erred in finding on the evidence that, when the application was made, one or more members of the claim group occupied the area of Hatches Creek Township.' The contention raised in ground 49 was not made before his Honour on the hearing of the application. It is raised for the first time on this appeal. Because of the nature of the determination as a judgment in rem and because the point now raised is narrowly based on the formal proclamation and statutory framework under which it was made, the Court is prepared to entertain this ground of appeal notwithstanding that it is raised here for the first time. 174 The proclamation of the Hatches Creek townsite was made on 22 July 1953 pursuant to s 111 of the Crown Lands Ordinance 1931-1952. That Ordinance was repealed by s 107 of the Crown Lands Act 1992 (NT) read with Schedule 2 of that Act. Proclamations made under the 1931 Ordinance were continued in force by s 108(2) of the 1992 statute. That section in terms continued all regulations, bylaws and other instruments of a legislative or administrative character in force immediately before the commencement of this Act. No argument was advanced by the Northern Territory or the applicants by reason of that legislative continuance. 175 Section 111 of the 1931 Ordinance provided, inter alia: '(1) The Governor General may by Proclamation: (a) constitute and define the boundaries of new counties, hundreds, and towns, and distinguish each by a name. ... (2) Every such Proclamation shall specify the date from which it shall take effect, and no Proclamation constituting any new counties or hundreds shall be published unless a list and plans of counties or hundreds intended to be constituted have been laid before both Houses of the Parliament for thirty days. (3) The Governor-General may by Proclamation set apart as town lands any Crown land within the boundaries of a town and may by Proclamation set apart as suburban lands any Crown land adjoining a town or site for a town.' 176 Part III of the Ordinance provided for the grant of leases under it. Division 1 of Part III contained general provisions including a provision requiring that leases under the Ordinance be granted by the Minister in the name of the Queen. Save for pastoral and miscellaneous leases such leases were to be in perpetuity but subject to rent reviews (s 14). 177 Division 4 of Part III contained provisions specific to the grant of leases of town lands. Leases of town lands were required to contain certain reservations, covenants, conditions and provisions in addition to the matters for which Div 1 of Pt III provided. So under s 66 such leases had to contain a covenant to erect on the lands, within such time as is notified in the conditions on which the land is offered, buildings to a value specified in those conditions. Such a lease could also contain other reservations, covenants, conditions and provisions as are prescribed (s 66). There was a requirement that such leases be offered at auction (s 67). However there was also provision for the grant of leases to be made otherwise than by auction. Former members of the armed forces could be granted leases in this way (s 68A). Other classes of lease were dealt with in Div 4 (ss 68B-71). 178 As appeared from the Ordinance, the proclamation of a township had no operative legal effect beyond providing satisfaction of a condition precedent for the grant of the various kinds of leases contemplated by Div 4 of Pt III. That is to say the power to grant the various kinds of leases contemplated by the Ordinance was not enlivened until a proclamation of the kind provided for in s 111(1)(a) or s 111(3) of the Ordinance had been made. 179 The application of s 47B is excluded when the land to which it is said to apply is: '(1)(b)(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose;' 180 The proclamation of the townsite was published in the Northern Territory Government Gazette at the same time as the proclamation revoking the relevant part of the Commonage Reserve which had been proclaimed over land including Hatches Creek in 1919. The townsite proclamation was as follows: 'Whereas by virtue of section one hundred and eleven of the Crown Lands Ordinance, 1931-1952, of the Northern Territory of Australia, it is provided, amongst other things, that the Governor-General may, by Proclamation, constitute and define the boundaries of new counties, hundreds and towns and distinguish each by a name: And whereas it is further provided by the said section that the Governor-General may, by Proclamation, set apart as town lands any Crown land within the boundaries of a town: And whereas it is desirable to constitute and define the boundaries of a new town and to distinguish the said new town by the name of Hatches Creek, and to set apart the Crown land within the said new town as town lands: Now, therefore, I, Sir WILLIAM JOSEPH SLIM, the Governor-General aforesaid, acting with the advice of the Federal Executive Council, do hereby declare that all that portion of Crown land described in the Schedule hereto, shall from the date hereof be constituted a new town to be called the town of Hatches Creek and that the boundaries of the said new town shall be as defined in the said Schedule: And I do further declare that all Crown land within the said new town shall be set apart as town lands.' There followed a schedule defining the boundaries of the townsite. 181 The Northern Territory submitted that the proclamation was a 'proclamation' made 'by the Crown in any capacity' within the meaning of s 47B(1)(b)(ii). The constitution of the land as a town, the first declaration in the proclamation was said to fall within both 'public purposes' and to be 'a particular purpose' in s 47B(1)(b)(ii). 182 The applicants pointed out that although the Crown land within the area described had been set apart as town lands there was no evidence of any leases ever being issued in the town. At the time of the application all of the land was unalienated vacant Crown land. The proclamation was said not to be in the nature of a reservation or dedication which would be expected if the use of the land for public purposes were involved. Nor was use of the land for a particular purpose prescribed. A town area could be used for any number of purposes by any number of people and entities. As the Hatches Creek case illustrated, the mere fact that an area was constituted as a town, its boundaries defined and the land within it set apart as town lands did not mean that the land would be used for any purpose, let alone a particular purpose. The constitution of a town with defined boundaries might have consequences for local government administrative powers but it had no direct effect on land ownership or existing tenures. Nor did the constitution of a town mean that lands within the area so constituted would be used either for public or private purposes. On this basis it was submitted that the effect of the proclamation was not to provide that any identified area was to be used for a public purpose or for a particular purpose. 183 In Hayes Olney J discussed the application of s 47B principally in relation to the criterion of occupation by members of the claim group at the time that the application was made. His Honour did observe that the section generally applies in respect of unalienated and unreserved Crown land - [157]. He applied it to unalienated and unreserved land in the Alice Springs township, albeit the present point was not taken before his Honour. 184 In Daniel the applicants made no claim to the Karratha townsite. However Nicholson J considered the status of unallocated Crown lands in the town. The area had been declared a townsite by the Governor under s 10 of the Land Act 1933 (WA). Its boundaries were defined and land within it set apart as town and suburban lands. Nicholson J held the declaration to be a proclamation or dedication for the purposes of s 47B(1)(b). He also held a townsite to be 'a public purpose as well as a particular purpose' - [970]. He added that in any event s 47B had no application because the townsite area was covered by a temporary reserve. His Honour's observations, with respect, appear to have been, as the applicants contended, obiter dicta. 185 The operation of s 47B(1)(b)(ii) falls to be considered at the time the application for a native title determination is made. The collocation 'reservation, proclamation, dedication etc' is of wide import. There is no doubt that the proclamation made on 22 July 1953 was a 'proclamation' within the meaning of s 47B(1)(b)(ii). To satisfy the exclusionary condition in that subparagraph however the proclamation had to be one of which it could be said that, at the date of the application, it was a proclamation 'under which the whole or a part of the land ... in the area is to be used for public purposes or a particular purpose'. The terms of the condition raises two issues. The first is as to the nature of the purposes for which the land is to be used. The second is whether an intention to use the land for those purposes must be shown, as a matter of fact, to exist at the time the native title determination application is made or whether it is to be ascertained by reference to the terms of the proclamation and the legislation under which it is made. 186 The definition of a townsite and the setting aside of land within the townsite as 'town lands' under the Crown Lands Ordinance embraced a variety of potential subsequent uses none of which was defined at the point of proclamation. The proclamation enlivened powers to grant leases for a variety of purposes. 187 The purpose of s 47B is beneficial. The qualification on its application in s 47B(1)(b)(ii) is no doubt intended to minimise the impact of native title determination applications on areas set aside by proclamation or otherwise under statutory authority for public or particular purposes. That limitation should not be construed more widely than is necessary to achieve its purpose. A proclamation for a broadly expressed purpose which encompasses a variety of potential but unascertained uses is not a proclamation for a particular purpose. The term 'public purposes' may arguably encompass a land use planning purpose which is met by establishing a framework or condition for the allocation of private rights such as the grant of residential or commercial leases in a township. Alternatively, it may be construed as referring to purposes of a public nature such as the creation of reserves for public works or recreation or environmental protection. A narrower construction accords with a comprehensible policy that, in the public interest, prior extinguishment which might obviate public exposure to compensation claims or a future act process should be continued in force. It is not necessary in aid of the narrower construction to define its outer limits here. It is sufficient to say that the mere proclamation of a townsite, which might comprise largely private property holdings by lease or otherwise, does not define public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii). 188 The second constructional question turns on the requirement that to attract the exemption from the operation of s 47B the proclamation must be one under which the land or waters which it covers 'is to be used' for the specified purposes. The words 'is to be used' import the need to identify some intention to use the subject land for the requisite purpose or purposes. The question that arises is whether that intention is to be gleaned by reference to the terms of the proclamation and its constating legislation as an intention fixed for the duration of the proclamation or whether it is to be ascertained as a matter of fact at the time of the application for a native title determination. The evidence suggests that there is little or no prospect of the Hatches Creek townsite ever becoming a town. The proclamation is in effect a dead letter even though it was said by the Northern Territory to have the effect of defeating the beneficial operation of s 47B in this case. Nevertheless although the first interpretation can yield artificial results, it does provide an objective basis for determining the question of the imputed intention associated with the proclamation. The alternative approach would require factual inquiry into whether there has been, at the time of the application, an effective abandonment, attributable to the Crown, of any intention to implement the proposed purposes of the proclamation. The latter construction is not to be preferred. 189 There was evidence of a public plan prepared for the Hatches Creek townsite in 1977. The plan showed provision for a recreation area, government offices, tennis courts, a school site and what appear to be residential lots and roads. There is no suggestion that this plan had any statutory significance or legal effect. The Northern Territory could not point to evidence about its provenance. It does not impact upon the characterisation of the proclamation for the purposes of s 47B. 190 On the basis that the proclamation in this case was not for 'public purposes' or for a 'particular purpose' within the meaning of s 47B(1)(b)(ii) ground of appeal 49 does not succeed. This requires consideration of his Honour's finding on the question of occupation which was challenged in ground 50. 191 The Northern Territory submitted that in deciding whether s 47B applies to Hatches Creek the Court should act only on direct evidence of the occupation required by the section and not upon inference. No reason was advanced for this proposition beyond the contention that s 47B has a significant effect. It must be rejected. Courts are frequently called upon to reach conclusions about matters of great significance upon inferences drawn from evidence. There is nothing about s 47B that requires a more restrictive approach to the discharge of the Court's function. 192 The Northern Territory then argued that it was not a proper inference to draw from the evidence that members of the claim group hunted and traversed the town area at the time the application was made in November 1995. Its essential contention was that the evidence to which his Honour referred was insufficient to support his inference. 193 The requirement of occupation in s 47A of the NT Act, which is the same as that in s 47B, was considered by Beaumont and von Doussa JJ in Ward FC 1. Their Honours considered that a broad view should be taken of the word (at [449]): 'We think this requirement is met where a claimant member is one of many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the lands so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so.' 194 In Rubibi Community v Western Australia (2001) 112 FCR 409, Merkel J found the following activities to evidence occupation of an area of land for the purposes of s 47A(1)(c) of the NT Act: . continuing supervisory and protective activities of the senior Yawuru men in relation to the claim area; . the holding of traditional ceremonies on the claim area as and when the senior lawmen authorised those activities; . continued storage of sacred objects on the claim area; , occupancy of the Leregon structures constructed on the claim area by members of the Lee family who are acknowledged to be members of the Rubibi claim group In Passi v Queensland [2001] FCA 697 Black CJ, on a consent determination, said that although the islands the subject of that determination were not permanently inhabited the evidence showed that the Meriam people used the land as and when they wished. Its use was consistent with its reserved purpose. His Honour was satisfied that the people occupied the relevant islands. In Daniel at [973] Nicholson J also applied what Beaumont and von Doussa JJ had said in Ward FC 1. He equated 'connection' and 'occupation'. 195 As Toohey J said in Mabo (No 2) at 188 presence on land does not have to be possession at law to amount to occupancy. He referred to United States and Canadian cases which established occupancy by reference to the demands of the land and society in question 'in accordance with the way of life, habits, customs and usages of the [indigenous people] who are its users and occupiers' - Sac and Fox Tribe of Indians of Oklahoma v United States (1967) 383 F 2d 991 at 998. His Honour observed in particular that '... a nomadic lifestyle is not inconsistent with occupancy' - (at 189). 196 It was not disputed that Hatches Creek was part of the applicants' traditional country. Nor was it suggested that there were no native title rights or interests subsisting in it. Given that background and the evidence of activity in its vicinity, to which he referred, his Honour was entitled to draw the conclusion that the applicants occupied it in the broad sense relevant to s 47B. His Honour cannot be said to have erred in his determination as it affected Hatches Creek. The cross appeal - general 197 The matters raised by the cross appeal were described by the applicants in their written submissions as 'largely minor variations on his Honour's determination' which are sought to 'give full effect to the reasons for judgment' and to ensure that it meets the requirements of s 225 of the NT Act. It is convenient to deal with each of those points in the order in which they arise in the notice of cross appeal. Those relating to the formulation of native title rights and interests have been dealt with under that heading. Brief reference is made to them here for completeness. The cross appeal - determination paragraph 1 198 The proposed variation would have par 1 of the determination read: 'Native title exists in relation to the areas which comprise the land and waters covered by the Northern Territory Portions 4386 and 4387 and the Town of Hatches Creek ("the determination area"). The determination area does not include the areas set out in the Schedule.' The Northern Territory accepts this variation. Although it was not strictly an appeal point and did not reflect any error on the part of the learned trial judge it is convenient, given the parties agreement, to deal with the matter now. The cross appeal - determination paragraph 3(a) 199 The variation to par 3(a) proposed by the applicants rectified a typographical error in the determination and was accepted by the Northern Territory. This has been dealt with already in the section relating to native title rights and interests. The cross appeal - determination paragraph 3(j) 200 The applicants sought the inclusion of an additional par 3(j) which his Honour had approved in his reasons for judgment but which, by oversight, was not included in the determination. For reasons already expressed in the section dealing with native title rights and interests, this proposed paragraph should not be included in the determination. The cross appeal - determination paragraph 5 201 Paragraph 5 of the determination presently provides: 'In relation to that part of the determination area identified as the Town of Hatches Creek the native title rights and interests are exclusive of the rights and interests of others, subject to subclause 7(b) hereof.' The applicants seek a variation of this paragraph to read: 'In relation to that part of the determination area identified as the Town of Hatches Creek the native title rights and interests of the common law holders confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.' They also seek the consequential deletion of subcl 7(b) of the determination which presently defines as one of the 'other interests in relation to the determination area': '(b) In relation to the Town of Hatches Creek, the interest of any person with a right of access to the land conferred by or arising under a law of the Northern Territory or the Commonwealth.' 202 The Northern Territory accepted that, if its grounds of appeal 48, 49 and 50 relating to the application of s 47B to the Hatches Creek townsite were unsuccessful, then the formulation of par 5 proposed by the applicants would accord with the requirements of s 225(e) of the NT Act. On that basis the Northern Territory accepted that the applicants' formulation of par 5 should be preferred to that which currently appears in the determination. 203 Having regard to the dismissal of the Northern Territory's appeal so far as it related to the Hatches Creek townsite, par 5 should be varied as proposed by the applicants. The cross appeal - determination paragraph 7 204 The applicants seek variations to par 7(a) which defines the nature and extent of other interests in relation to the main part of the claim area, namely Northern Territory Portions 4386 and 4387. The subparagraphs of par (a) with which the applicants are concerned are (iv) and (v). Paragraph 7(a)(iv) presently refers to: 'interests of the Crown pursuant to statute or otherwise in exercise of its executive power or held as the result of the assertion of sovereignty.' Subparagraph (v) defines: 'rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power.' 205 The reformulation of these paragraphs proposed by the applicants is as follows: '(iv) the interest of the Northern Territory as holder of the radical title to the determination area exercisable in accordance with Part 2, Division 3 of the Native Title Act 1993 (Cth); (v) rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power exercisable in accordance with Part 2, Division 3 of the Native Title Act 1993 (Cth).' 206 The applicants submitted that there is a lack of clarity in the present formulation of par 7(a)(iv) referring to interests of the Crown 'held as a result of the assertion of sovereignty'. This formulation was apparently used in the draft determination proposed in De Rose at [922]. The applicants submitted that their proposed variation properly described the nature of the Crown's interests in the determination area attributable to the Northern Territory as the holder of radical title. 207 As appears from the reasons for judgment in the present case at [192] the Northern Territory had sought the inclusion of subpar (iv) albeit its numbering in the then proposed determination would have been 9(a)(iv). His Honour acknowledged that the Northern Territory's submission was based upon expressions used by O'Loughlin J in the De Rose case. He said (at [193]): 'The applicants submit that the first of those proposed descriptions is a little ambiguous, but would accept the inclusion of an expression such as: 'the interests of the Crown pursuant to statute or otherwise in the exercise of its executive power'. Having regard to s 11 of the NT Act, the interests of the Crown to which it refers must mean the existing interests of the Crown.' 208 Given the acceptance by the applicants of the first limb of what is now par 7(a)(iv) there was no appealable error in the use of that formulation by his Honour. The Northern Territory accepts that the words 'or held as the result of the assertion of sovereignty' add little to the definition of interest in 7(a)(iv) and could be deleted. It is not immediately apparent what interests would be encompassed by that collocation. In the circumstances it should be deleted. On that basis par 7(a)(iv) will be varied to read: '(iv) interests of the Crown pursuant to statute or otherwise in the exercise of its executive power.' 209 As to par 7(a)(v) the applicants submit that s 225(c) requires a determination of the nature and extent of any other interests in relation to the determination area. They submitted that the 'other interests' referred to were interests in existence at the time of the determination. The proposed addition to the terms of par 7(a)(v) qualifies the relevant rights or interests by the requirement that they be exercisable in accordance with the future act provisions of the NT Act. As the Northern Territory submitted, this addition is otiose. The statutory requirements in relation to future acts and the consequences of failure to comply with those requirements exist independently of the form of the determination. There should therefore be no variation of par 7(a)(v). 210 To the extent that the applicants' submissions encompassed the deletion of par 7(a)(v) those submissions are also rejected. As the Northern Territory submitted, the paragraph is a catch all provision included because of the in rem nature of determinations of native title. It was designed to ensure that rights or interests existing as at the date of determination but which have been erroneously omitted from it are not terminated or extinguished by virtue of their omission. The cross appeal - determination paragraph 7(b) 211 For the reasons already outlined the Northern Territory's appeal on the application of s 47B to the Hatches Creek townsite being unsuccessful, par 7(b) should be excluded. The cross appeal - determination paragraph 8 212 Paragraph 8 of the determination specifies the relationships between the native title rights and interests described in par 3 and the other rights and interests referred to in par 7. 213 Paragraph 8(b) in the determination presently provides: '(b) (i) to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist, but have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and (ii) otherwise, the existence of the native title rights and interests do not prevent the doing of the activity required or permitted to be done by or under the other rights and interests; and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevails over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.' 214 The applicants seek the deletion of par 8(b)(ii). This paragraph was par 10(b) of the Northern Territory's proposed determination and was adopted by his Honour. The applicants' submission was that subpar (b)(ii) adds nothing to subpars 8(b)(i) and 8(c). It was said to be implicit in those provisions that the existence of the native title rights and interests would not prevent the doing of any activity required or permitted by or giving effect to, the other rights and interests. The remaining words are repeated in par 8(c). Subparagraph 8(b)(ii) was said to be unnecessary. It is sufficient for present purposes to say that this objection does not disclose any appealable error even if par 8(b)(ii) involves some duplication. 215 Paragraph 8(c) presently reads: 'the doing of any activity giving effect to the other rights and interests prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them.' The proposed variation is: 'Subject to subparagraph (d), the doing of any activity giving effect to the other rights and interests identified in paragraph 7(a)(i), (ii) and (iii) prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them;' 216 It was submitted that the first of the variations proposed is structural as par 8(c) is intended to be subject to the operation of subpar (d). The second addition was said to seek greater clarity but might be considered unnecessary. Absent agreement, it is not necessary to explore the merits of this proposed variation as it does not even purport to flow from any appealable error on the part of the learned trial judge. 217 The applicants also proposed the rewriting of par 8(d) which variation was said in their submissions to be 'stylistic'. It is no part of the function of an appeal court to improve on the style of the trial judge. There must be some appealable error exposed. None was exposed by the applicants' submission. The cross appeal - the effect of CLP 1117 and the Note to paragraph 8(e) 218 CLP 1117 was granted to the Corporation in perpetuity with effect from 30 August 1993. The Corporation thereby became the lessee of the whole of the claim area other than the Hatches Creek townsite. The lease was granted to the Corporation for the purpose of carrying out the functions of the Commission in accordance with the Commission Act and the Territory Parks and Wildlife Conservation Act (NT) (TPWC Act). Under s 39(6) of the Commission Act, the Commission has the care, conduct and management of all land acquired or held by the Corporation. In the exercise of its powers the Commission is subject to the TPWC Act. 219 It was common ground that CLP 1117 was not a previous exclusive possession act - [281]. Nor was it a previous non-exclusive possession act. That was because it was not an agricultural or pastoral lease and did not fall within the definition of previous non-exclusive possession act set out in s 23F of the NT Act. It was accepted by the Northern Territory that CLP 1117 had the same effect as the lease to the Corporation which had been considered in Ward HC. That lease was held to confer exclusive possession on the Corporation but to have been invalidated by the Racial Discrimination Act 1975 (Cth) (RD Act) to the extent that it affected native title. The majority joint judgment in Ward HC said (at 201 [439]): '... there was a conferral of exclusive possession with the consequence that so much of native title rights and interests as had survived the loss of the right to be asked permission to use or have access to the land, consequent upon the preceding pastoral leases, was, subject to the operation of the RDA extinguished.' The Corporation being a statutory authority of the Crown, CLP 1117 was a Category D past act. His Honour held that it conferred a right of exclusive possession subject to the reservations expressed in s 122 of the TPWC Act. That section provides that nothing in the TPWC Act limits the rights of Aborigines who have traditionally used an area of land or waters from continuing to use that area in accordance with Aboriginal tradition for hunting, food gathering (other than for the purposes of sale) and for ceremonial and religious purposes. The operation and effect of the Act was also expressed to be subject to the NT Act. 220 By virtue of s 8 of the Validation Act the non-extinguishment principle applies to CLP 1117. His Honour said (at [288]): 'It is only the native title rights to control access to the claim area, and to make decisions about the land, which are said to have been affected by CLP 1117. Those two rights are not expressly within the reservation recognised by s 122 of the TPWC Act. In respect of the other native title rights and interests which I have found to exist, CLP 1117 has no extinguishing effect beyond that already effected by the grant of pastoral leases.' There had been no adoption in any plan of management for a proposed park in the area under s 18 of the TPWC Act and therefore there had been no further extinguishment of native title - [291]. By reason of s 44H of the NT Act the exercise of rights under the lease would prevail over the applicants' native title rights and interests. 221 In the cross appeal the applicants sought the deletion of the Note to par 8(e) on the basis that it added nothing to the other parts of par (e), particularly pars 8(b)(i) and 8(e). The deletion they sought is necessary but not for the reasons they advanced. It is necessary because the Northern Territory succeeded on its challenge to pars 3(e) and 3(f) of the determination in its application to the claim area other than the Hatches Creek townsite which is not covered by CLP 1117. The Note depends upon those paragraphs for its utility. The deletion of the Note is a consequence of their removal from the determination so far as it applies to the principal claim area. 222 The Northern Territory did not wish to stop at the deletion of the Note to par 8(e). It sought the insertion of a provision in par 8 to give effect to its contention that the grant of CLP 1117 as a lease conferring exclusive possession was wholly inconsistent with all remaining native title rights and interests except those referred to in s 122 of the TPWC Act. The contention was reflected in a proposed amended 8(e) which would read as follows: 'In relation to the Northern Territory Portions 4386 and 4387 all of the native title rights and interests set out in paragraph 3 are inconsistent (as described in paragraph 8(b)(i)) with the other interests referred to in paragraph 7(a)(i), (ii) and (iii), except to the extent to which they fall within paragraph 8(b)(iv) and (v).' Apart from being almost unreadable, the proposed variation to par 8 is not reflected in a ground of appeal. Appeal ground 47 was concerned solely with the impact of CLP 1117 on the rights determined in par 3(e) and (f). 223 Other rights outside the range of those with which ground 47 was concerned and arguably not covered by s 122 of the TPWC Act, include the right to live on the land and to camp, erect shelters and other structures thereon (3(b)). They also include the right specified in par 3(d) allowing access to maintain and protect places and areas of importance and the right in par 3(g) to share or exchange subsistence and other traditional resources obtained on or from the land and waters. All of these rights, on the Northern Territory's submission, would be of no effect during the currency of CLP 1117. 224 The applicants said that the Northern Territory's contentions ignored the effect of s 238 of the NT Act on the grant of CLP 1117. Section 238 defines the non-extinguishment principle and provides, inter alia: '(1) Effect of references This section sets out the effect of a reference to the non-extinguishment principle applying to an act. (2) Native title not extinguished If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly. (3) Rights and interests wholly ineffective In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act. (4) Rights and interests partly ineffective If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.' The other subsections are not relevant for present purposes. 225 In the joint judgment of the majority in Ward HC, the operation of s 238 with respect to the grant of a special lease and a Crown special lease in the Northern Territory was considered on the basis that they were Category D past acts. The Court was unable to come to any conclusion 'whether, in respect of the remaining native title rights and interests after the extinguishment effected by the pastoral leases, the respective grants were wholly or partly inconsistent with the continued existence, enjoyment and exercise of the native title rights and interests in question'. As the applicants submitted, had the conferral of a right of exclusive possession been a relevant consideration for the purpose of s 238, the Court could have reached the conclusion that the grants were wholly inconsistent with any subsisting native title rights and interests. 226 While it is not disputed that CLP 1117 confers a right of exclusive possession upon the Corporation, the stated purpose of the lease is 'Conservation Land Corporation purposes' as set out in a search certificate. Terms and conditions of the lease appear in a Memorandum of Common Provisions which provides, inter alia, that: 'Subject to the Act the lessee will not use the lease for a purpose other than the purpose for which it is leased.' That purpose may be inferred from the terms of the Commission Act which gives to the Commission the care, control and management of all land acquired or held by the Corporation. The purpose of the lease is plainly related to the conservation and protection of the natural environment. It is not necessarily inconsistent with the native title rights which remain in par 3 of the determination. 227 The amendment to par 8 proposed by the Northern Territory is refused. The cross appeal - determination - proposed new paragraph 8(f) 228 The applicants sought, on the cross appeal, to obtain the inclusion in the determination of a new subpar 8(f) to read as follows: 'co-existing rights that are not inconsistent to any extent must be exercised reasonably, each party having regard to the interests of the other.' His Honour declined to include this provision on the basis that the position was covered by s 44H of the NT Act. 229 The applicants submitted that the notion that rights should be exercised reasonably had been adopted in a number of determinations and was helpfully included as an express element of the determination. The submission is an invitation to this Court to rewrite his Honour's determination not because of any error on his part, but because it may be a preferable way of doing things. This is not a function which this Court will adopt. Conclusion 230 For the preceding reasons the appeal will be allowed in part by varying the native title rights and interests set out in par 3 of the determination. Variation in accordance with these reasons will be directed in relation to pars 3(a), (c), (e), (f) and (g) and the deletion of pars 3(h) and (i). Paragraphs 1, 5 and 7(a)(iv) will also be varied. The appeal and cross appeal should otherwise be dismissed. 231 Given the mixed results on the appeal and the cross appeal it does not seem appropriate to make any order other than that the parties bear their own costs. In the event that the parties seek a different order they will have the opportunity to make written submissions in that respect. I certify that the preceding two hundred and thirty one (231) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group

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