(5) The Effect of the Extinguishing Acts
249 As noted earlier, the Northern Territory in the light of the decision of the majority in Ward does not contend that any of the pastoral leases granted in respect of the principal claim area or Hatches Creek are previously exclusive possession acts as defined in s 23B of the NT Act. It contends that they are previous non-exclusive possession acts as defined in s 23F(2) of the NT Act, being non-exclusive pastoral leases which were valid and granted before 23 December 1996. The extinguishing effect of the grant of the pastoral leases is that set out in s 9M of the Validation Act. Thus, it contends, to the extent that the grant of any pastoral lease involved the grant of rights and interests inconsistent with native title rights and interests in relation to the land and waters covered by the pastoral lease concerned, native title rights have been extinguished to the extent of the inconsistency. If there has been such an extinguishment, s 237A of the NT Act provides that the extinguishment is permanent. A subsequent grant of a pastoral lease which itself would otherwise extinguish native title will have no extinguishing effect because of the earlier extinguishment.
250 The Northern Territory also accepts that the terms of the pastoral leases are not inconsistent with all native title rights to have access to, occupy, use and enjoy the land with the consequence that some rights of native title holders could co-exist with those of the pastoralists. In addition, although PL 2489 and PL 2490 issued under the Crown Lands Ordinance 1912-1923 (Cth) did not contain a reservation in favour of Aboriginals, the Northern Territory does not contend that those pastoral leases had any further extinguishing effect than those earlier granted.
251 Moreover, the Northern Territory recognises the significance of the express reservations in favour of the Aboriginal inhabitants of the Northern Territory in all but two of the pastoral leases. The wording of the reservations has varied slightly from time to time. The Northern Territory summarises the rights of Aboriginal people under the reservations as rights to:
(a) enter on the leased land;
(b) access the springs and natural surface water;
(c) erect and make wurlies and other dwellings;
(d) take and use for food birds and animals ferae naturae.
252 The Northern Territory also accepts, as the applicants contend, that the reservations in the leases did not replace native title rights with statutory rights. They simply preserved existing native title rights.
253 The NT Act and the Validation Act (commencing on October 1998) provide the starting point for determining the extent to which, if at all, the native title rights and interests which I have found to have been otherwise established have been extinguished.
254 As noted above, the starting point is to look at the statutory scheme to determine whether any acts which are said to extinguish native title are covered by Div 2, 2A or 2B of the NT Act. If an alleged extinguishing act is not a 'past act' or an 'intermediate period act', so it is not covered by the provisions of Div 2B, it will then be necessary to consider whether the act nonetheless had the effect of extinguishing native title at common law: Validation Act, Pt 3C.
255 The parties are agreed that the pastoral leases granted over the claim area are previous non-exclusive possession acts. Section 23G of the NT Act and Pt 3C of the Validation Act have the effect that:
(a) the grant of rights and interests that are not inconsistent with native title rights and interests may prevail over them but do not extinguish them;
(b) the grant of rights and interests that are inconsistent with native title rights and interests and, apart from the NT Act, permanently extinguish native title rights and interests; and
(c) the grant of rights and interests that are inconsistent with native title rights and interests, but which do not, apart from the NT Act, permanently extinguish the native title rights and interests, suspends the native title rights and interests while the lease is in force: see e.g. the NT Act s 23G(1)(a), (b)(i) and (b)(ii) and s 237A as to the meaning of 'extinguish'.
256 All of the pastoral leases granted over the claim area or parts of it are previous non-exclusive possession acts. They are non-exclusive pastoral leases. The grant of the pastoral leases variously conferred rights and interests inconsistent with the continued exercise of all incidents of native title and they extinguish native title to the extent of the inconsistency. On the other hand, the terms of pastoral leases granted in respect of the claim area or parts of it are not inconsistent with all native title rights to have access to, occupy, use and enjoy land in the claim area. Some native title rights could and do co-exist with the rights of pastoral lessees.
257 The rights of pastoralists were described by the Northern Territory in general terms as follows:
(a) to use the land for pastoral purposes;
(b) to occupy and reside upon the land;
(c) to make decisions about the land;
(d) to control entry by other persons onto the land, except where those persons come onto the land pursuant to reserve rights;
(e) to make and maintain improvements on the land;
(f) to cut timber for use on or in connection with the land, to the extent permitted by the lease;
(g) to clear the land to the extent and in the manner allowed by the relevant act or regulations under the relevant act.
258 As noted, the Northern Territory contends that any native title right to make decisions about the use and enjoyment by others of the claim area was extinguished by the grant to pastoral lessees of the right to make decisions about the use to which the claim area may be put for pastoral purposes, including to make improvements required or envisaged by the pastoral leases, and to comply with covenants in the pastoral leases. There is also a significant dispute in relation to access. The Northern Territory contends that no native title right to control access by a lessee or by any persons whom the lessee permitted to enter could survive the grant of the pastoral leases.
259 The Northern Territory's written submission about those matters is quite short. It is in the following terms:
'It is clear from the terms of the reservations that no bare "right to make decisions" is preserved as a separate right. Conceptually, a "right to make decisions" must be linked with the right that a person has to occupy, use and enjoy the land. The scope of any native title right to make decisions which is preserved upon the grant of a pastoral lease must also be limited by the scope of the reservation; that is, limited to the right to make decisions about the use and enjoyment of the land by the native title holders for those purposes which fall within the reservation.
Similarly, a right to control access by others involves a right to make decisions about who can enter the land; no right to control access by others is preserved by the reservations in pastoral leases.
Effective and timely decision-making does not sit comfortably with co-existing rights to make decisions about the use and enjoyment by others of the land, and co-existing rights to control access, where the potential for conflict arises.
The first respondent contends that any native title 'right' to make decisions about the use and enjoyment of the land by others, and to control their access to the land, was extinguished by the grant of pastoral leases over the claimed area.'
260 The Northern Territory does not contend that the four pastoral permits issued over parts of the claimed area, or the 16 grazing licences granted over parts of the claimed area had any greater extinguishing effect at common law than the grant of the pastoral leases. Those instruments affirm that the extinguishing effect must have been at least to remove any exclusive native title rights to occupy, use and enjoy the land, but they did not have any further extinguishing effect additional to the extinguishing effect of any pastoral leases.
261 To determine the legal incidents of a pastoral lease, it is necessary to examine the provisions of the relevant statute and the terms and conditions of the lease as a whole, including any reservation in favour of Aboriginal people. In the majority judgment in Ward at 35 - 36, [78] their Honours said:
'That is an objective inquiry which requires identification of and comparison between the two sets of rights. Reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used. Any particular use of land is lawful or not lawful. If lawful, the question is what is the right which the user has. If it is not lawful, the use is not relevant to the issues …'
262 In general terms, the majority judgment in Ward accepted the 'bundle of rights' approach of the majority (Beaumont and von Doussa JJ) in Ward in the Full Court, and applied the inconsistency of incidents test as described.
263 At 116 - 123, [396] - [425] the majority judgment in the High Court in Ward dealt with pastoral leases in the Northern Territory. Their Honours described the legislative structure under which pastoral leases were granted from time to time, and the reservations of Aboriginal interests in those leases. Their Honours' conclusion at 134, [468] was as follows:
'The successive grants of pastoral leases over what is now the Territory claim area were inconsistent with the continued existence of the native title right to be asked permission to use or have access to the land. They were not, however, necessarily inconsistent with the continued existence of all native title rights and interests. They were non-exclusive pastoral leases and Pt 3C of the Territory Validation Act was engaged.'
264 It may be seen that a reservation in favour of Aboriginal people in the pastoral leases (other than the two pastoral leases to which I have referred) indicates clearly that native title rights described in the reservation were held back from the grant and could continue to be enjoyed by Aboriginal people. Moreover, the reservation indicated clearly that the pastoral leases did not extinguish all native title rights and interests or substitute for them statutory rights. The reservations firstly defined the scope of Aboriginal rights and interests which were preserved upon the grant of a pastoral lease. Native title rights, not in terms included in the reservation in the pastoral leases, were susceptible to extinguishment, and were extinguished 'to the extent of inconsistency of rights granted under the pastoral leases'. In Ward in the Full Court at 406 - 407, [340], the majority said that:
'… (the pastoral leases) operate to define the scope of the Aboriginal rights which were preserved. Insofar as the terms of the reservations did not include Aboriginal rights, those rights were susceptible to extinguishment, and were extinguished to the extent of inconsistency with rights granted under the pastoral lease.'
Beaumont and von Doussa JJ in Ward in the Full Court also pointed out that, by reason of the context in which and the terms by which the pastoral leases were granted, it was contemplated that Aboriginal people and pastoralists would have some co-existing rights over the land which the common law required to be exercised reasonably, having regard to the other co-existing interests: at 406 - 407, [340] and [342].
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. The submissions of the parties do not identify that anything turns upon the terms of a particular reservation. It is not necessary to refer, in the circumstances, in detail to the terms of each piece of legislation under which the pastoral leases were granted or to the terms of each reservation. The High Court in Ward in the passage referred to above of the majority judgment sets out that material in some detail.
266 Each of the enactments under which the pastoral leases were granted included a power to grant a lease for grazing or other pastoral purposes for a limited period, subject to conditions, and subject to clauses for forfeiture and resumption. In each instance there was an entitlement reserved to the Crown to resume the whole or part of the land for public purposes on six months notice. The leases variously contained reservations for entry by the authorities to cut and remove timber, or to search for and work mines and minerals, for resumption, and for the travelling of stock by the public along stock routes, and for entry for the purposes of laying roads. Each enactment prescribed penalties for unauthorised occupation and use of demised lands. They variously contained a provision for a condition to be inserted in leases for the protection of Aboriginals. The reservation in favour of Aboriginal people imposed in pastoral leases under the Northern Territory Crown Lands Act 1890 (SA) had changed a little to the following terms:
'Excepting out of this lease to Aboriginal Inhabitants of the Province and their descendants during the continuance of this lease full and free rights of ingress, egress and regress into, upon and over the said lands and every part thereof and in and to the springs and natural 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 …'
267 In respect of PL 841 issued under the Crown Lands Act (NT) on 17 February 1982, it should be noted that s 24(e) (introduced by the Crown Lands Ordinance No 3 1978, s 6) substituted for s 24(e) the following:
'(2) Subject to subs (3) in any lease under this Ordinance a reservation in favour of the Aboriginal inhabitants of the Northern Territory shall be read as a reservation permitting the Aboriginal inhabitants of the leased land and the Aboriginal inhabitants of the Northern Territory who, in accordance with Aboriginal tradition, are entitled to inhabit the leased land -
(a) to enter and be on the leased land;
(b) to take and use for natural waters and springs on the leased land;
(c) subject to any other law enforced in the Northern Territory, to take or kill for food or for ceremonial purposes animals ferae naturae on the leased land; and
(d) subject to any other law in force in the Northern Territory, to take for food or for ceremonial purposes any vegetable matter growing naturally on the leased land.
…
(6) Where a lease under this Ordinance contains a reservation in favour of the Aboriginal inhabitants of the Northern Territory a person shall not, without just cause, interfere with the full and free exercise, by the persons thereby entitled, of the rights reserved to them.'
Unlike earlier leases, provisions of that Act extended to enable the whole or part of any lease to be used for agricultural development or for any other purposes permitted by the Minister.
268 The reservation clause in the various pastoral leases is not said to have any significant difference in meaning or effect. As originally drafted, and as it appeared in subsequent instruments, it appears to have been premised upon the basis that Aboriginal people had existing rights that could continue to be exercised and enjoyed during the term of a pastoral lease. They contemplated the continuing of existing practices, in their terms, by reference to previous customs or to the manner in which such rights had previously been enjoyed. They reflected an intention that Aboriginal people should continue to have access to, and to be able to live on, land held under the pastoral lease, and in general terms that they would do the things that they had always done and which, in accordance with Aboriginal tradition, they were entitled to do. I conclude that, in preserving the express reserved rights to Aboriginal persons, including to enter and remain on the pastoral land, and to continue certain activities on the pastoral land incidental to their presence, it was not intended that the leases would preclude Aboriginal persons from doing all other things not expressly provided for in the reservation.
269 The reservations in each of the leases (save for that issued in 1979) reserved 'full and free right of ingress, egress and regress into, upon and over the leased land in every part thereof …'. The reservations contained no geographical limitation excluding enclosed or improved areas.
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 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.
271 Let it be supposed that only one pastoral lease had been granted over the claim area and that lease had survived only one year. To the extent that it empowered the pastoral lessee and the lessee's invitees to enter upon the claim area, the grant of the lease would be inconsistent with the exclusive native title right to control the access of persons to the claim area. The right could not revive. But 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. Examples may be given of persons seeking to enter the land to film a sacred site, to set up a fishing camp at a waterhole where camping or taking fish was prohibited or regulated by the native title holders' laws and customs, or to enter the land and commercially exploit a particular bush food resource. Section 223(4) of the NT Act recognises the existence of reserved rights which are not native title rights and interests. Sections 23D and 23H (relevant by virtue of the Validation Act, s 11) provide that such rights are not affected by ss 23C or 23G of the NT Act. However, those provisions do not purport to affect the construction of the reservation in the pastoral lease, or the scope of other subsisting native title rights and interests.
272 It is noteworthy that the reservations in leases granted under the Crown Lands Ordinances refer generally to 'Aboriginal inhabitants'. I accept that the reservation as expressed in that term was intended to preserve certain existing rights of Aboriginal people in particular lands, namely those people who held a traditional right to be present on the land. That is consistent with other language in the reservation such as: 'as they have heretofore been accustomed to make and erect' and 'in such manner as they would have been entitled to if this demise had not been made'. I do not think the reservations were intended to extend the range of Aboriginal persons who could exercise rights over the leased area beyond those who, according to traditional laws and traditional customs, were entitled to do so. In my view Aboriginal people, other than those who constitute the claim group, had under native title laws and customs no right of entry to the claim area, and could be excluded from it, except upon permission being sought in an appropriate way from one or other of the members of the claim group. I think it is consistent with the reservation that the native title holders, consistently with their traditional practices, would continue to control entry to their country by other Aboriginal people to the extent that right was not otherwise inconsistent with rights under the pastoral leases.
273 It is difficult to discern how s 23G operates in the circumstances. In respect of the reservations in pastoral leases by virtue of the pastoral leases (previous non-exclusive possession acts), nothing in s 23G affects the reservation for the rights and interests: s 23H. Section 23G can apply, therefore, only in respect of rights and interests which were not the subject of reservations. Section 23G(1)(a) does not appear to relate to the two particular rights and issues. It operates where the grant of the pastoral lease involves the grant of rights and interests that are not inconsistent with native title rights and interests. To the extent of inconsistency, the native title rights and interests are extinguished. Where there is no inconsistency, the doing of activity to give effect to the rights and interests prevails over the native title rights and interests, but does not extinguish them. In respect of access, there would be no need for s 23G(1)(a) to operate because the right of access granted under the pastoral lease is an inconsistent right. In respect of decisions about the land, it is possible that a decision under a lease to engage in certain lawful activity might affect an existing right of the native title claimants to make a decision with respect to the land, and in that event the leaseholders' activity prevails over the native title rights and interests but does not extinguish them.
274 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. In my judgment, the right to make such decisions is extinguished only to the extent that it is inconsistent with the rights of a pastoral lessee to make decisions concerning those matters. In Ward in the Full Court at 407, [343] the majority said:
'The grant of co-existing rights is to be present on the land however it had the inevitable effect that native title which hitherto consisted of exclusive rights to possess, occupy, use and enjoy the land ceased to be exclusive, and the native title right to make decisions about the land was abrogated to the extent that such a right conflicted with the right of the pastoral lessee to make decisions about the use of the land for pastoral purposes, including to make improvements required or envisaged by the pastoral leases, and to comply with covenants in the pastoral leases. The rights reserved to Aboriginal people were confined to rights of access for a specified purpose. … there have been no limitations in the pastoral leases which had the potential for total extinguishment in respect of enclosed or improved areas.'
275 Their Honours earlier said at 400, [316]:
'… insofar as the native title included rights to make decisions regarding the use and enjoyment of the land and access to the land, that exclusivity was destroyed. Any right to make decisions about the use and enjoyment of the land was also destroyed to the extent that it was inconsistent with the grant to a pastoral lessee of the right to make decisions about the use of the land for pastoral purposes. There could be no native title right to control access by the pastoral lessee, and those to whom the pastoral lessee granted permission to enter. In relation to people entering upon the land for one of the reserved purposes, actual entry would constitute a use inconsistent with the original native title, and to that extent native title would be regulated, though not necessarily extinguished. Whether extinguishment occurred would depend on the nature and degree of use undertaken pursuant to the right of entry.'
276 The passage in the majority judgment in Ward in the High Court at 134, [468] quoted at [263] above appears to be based on an earlier passage at 121, [417] as follows:
'It is apparent, for the reasons set out above, that the reservations in favour of Aboriginal people did not define or confine the rights that native title holders could exercise in the manner suggested by the majority of the Full Court. However, the grants of the respective pastoral leases were inconsistent with the continued existence of the native title right to control access to and make decisions about the land. Those rights were inconsistent with the right of the pastoral lessee to use the land for pastoral purposes. The respective pastoral leases were not necessarily inconsistent with the continued existence of all native title rights and interests. … the pastoral leases … did not confer upon the lessee the right to exclude native title holders from the land.'
It is significant that the Full Court in the passage immediately quoted above did not qualify its comment that the native title rights were inconsistent with the right of the pastoral lessee to use the land for pastoral purposes by the addition of the words 'by others'.
277 The rights of pastoral lessees included making decisions about the use of the land relating to the right to depasture stock and to exploit the pastures on the land, to make and maintain improvements necessary for the purposes of the lease, to exclude some others from the land, and to use the waters on the land. The pastoralists' rights were also limited by other covenants and conditions for reservations in the lease. Such rights were, in no sense, absolute. The native title right holders have a right to make decisions about the use and enjoyment of the land for purposes that fall within the reservation, such reserved rights being rights held back from the grant. A more general right to make decisions about the use and enjoyment of the land, subject to the rights of pastoral lessees and to other persons who may use the land under statutory or other entitlements, is not of itself inconsistent with the rights of a lessee to make decisions about the land for pastoral purposes. Examples may be given, such as decisions that a type of bush food should not be exploited in certain areas at particular times of the year, or fishing area restrictions, or the location and timing of ceremonies and the like. They might also include restrictions on members of the public as to where they might camp, if at all, in relation to significant sites.
278 That conclusion leads to the need to determine the significance of CLP 1117. It was granted in perpetuity to the Corporation for the purpose of carrying out the functions of the Commission (now the Parks and Wildlife Commission) in accordance with the CommissionAct and the TPWC Act. The Northern Territory contends that the grant of the lease to the Corporation enlivened the legislative regime for care, control and management of the claim area by the Commission: s 39(6) of the Commission Act. The powers and functions of both the Corporation and the Commission in respect of the claim area and its control and management are subject to s 122 of the TPWC Act. Section 122 provides that Aboriginal people who have traditionally used the claim area can continue to do so in accordance with their traditions for hunting, food gathering (other than for purposes of sale) and for ceremonial and religious purposes.
279 The Northern Territory therefore submits that s 122 does not support, and cannot support, the contention that all native title rights and interests claimed could co-exist with the performance of the functions of the Corporation and of the Commission. In particular, it contends that it cannot support the conclusion that native title holders retain any rights to make decisions about the use and enjoyment by others of the land and to control access of others. The Northern Territory refers to the fact that rights under s 122 of the TPWC Act are subject to regulations made for the purposes of preserving wildlife in any area and of expressly affecting the traditional use of the area by Aboriginals. The Northern Territory could, it contends, by regulation under that Act, prevent Aboriginal use of the land. If there were any such regulatory intervention, as being future extinguishment, it would be necessary to follow the procedures of the NT Act. The applicants do not accept those contentions.
280 It is common ground that CLP 1117 is not a previous exclusive possession act. Nor is it a previous non-exclusive possession act covered by Div 2B of Pt 2 of the NT Act. That is simply because it is not an agricultural or pastoral lease, and does not fall within the definition of previous non-exclusive possession act in s 23F of the NT Act.
281 In the event that CLP 1117 has that extinguishing effect, it would be necessary to determine whether it was in contravention of the RD Act. The applicants contend that it would contravene that Act. The Northern Territory disagrees. It submits that CLP 1117 is the grant of a lease under a law of general application, namely the Crown Lands Act (NT), which on its face is non-discriminatory. It does not appear to involve a distinction, exclusion or preference based on race. It is also said that it does not have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of any fundamental freedom in the political, economic, social, cultural or other field of public life: s 9 RD Act. Its purpose is to establish an area for conservation purposes. Its effect is to allow the claim area to be used by members of the public (including Aboriginal people) as a national park with the additional particular rights reserved to Aboriginal people under s 122 of the TPWC Act. Hence, the Northern Territory contends, there is no basis for a finding that any extinguishment of a limited, non-exclusive right to make decisions about use and enjoyment of the land or to control access to the claim area is discriminatory in any relevant sense, so as to invalidate the grant of CLP 1117 by reason of the RD Act.
282 If CLP 1117 does contravene the RD Act, it is necessary to determine whether the NT Act, in conjunction with the Validation Act, has the effect of validating its illegality. CLP 1117 is neither a category A past act nor a category B past act, as defined in ss 229 and 230 of the NT Act because it is the grant of a lease to a statutory authority. The Corporation is a statutory authority as defined in s 253 of the NT Act. By use of the exclusionary definition of 'category D past act' in s 232 of the NT Act, CLP 1117 is a category D past act. Its effect is as described in s 15(1)(d), namely that the 'non-extinguishment principle applies to the act'. Thus, as the Northern Territory puts it, any native title rights to make decisions about the use and enjoyment of the principal claim area, or to control access to it, which were not previously extinguished by the grant of pastoral leases will continue to exist but will have no effect for the duration of the lease granted to the Corporation (in perpetuity). See s 238 of the NT Act. The native title is not extinguished, but to the extent of the inconsistency its continued existence, enjoyment or exercise has no effect in relation to the Act to the extent of the inconsistency. The parties are at issue, if CLP 1117 is relevant in the way contended for, as to whether CLP 1117 produces inconsistency in respect of the two rights of making decisions about the claim area and of controlling access to it to the extent that they are extinguished.
283 CLP 1117 was granted to the Corporation. Its function is to acquire, hold and dispose of real property in accordance with the Act: s 39(1) of the Commission Act. Although it is not an authority or instrumentality of the Crown, and is not subject to direction or control of the Minister of the Crown: s 29 of the Commission Act, that does not prevent it being a statutory authority for the purposes of the NT Act. CLP 1117 identified its purpose as 'Conservation Land Corporation purposes'. Section 39(6) of the Commission Act provides that the Commission has the care, control 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, including s 122 referred to below.
284 The Commission was established by s 9 of the Commission Act. It is subject to the direction of the Minister. At the time CLP 1117 was granted, its functions as set out in s 19 of the Commission Act (subsequently substituted in 1995) were relevantly to promote the conservation and protection of the natural environment of the Territory, including by the managing and establishment of parks and reserves and sanctuaries under the TPWC Act. The TPWC Act then picks up those functions by making provision for the establishment of parks and reserves for the protection and conservation of wildlife.
285 The principal claim area is not a park or reserve. There has been no declaration to that effect under s 12 of the TPWC Act. The land has not otherwise been reserved for the purposes of a park or reserve. Section 122 of the TPWC Act provided for the traditional use of land and waters by Aboriginals:
'(1) Subject to subs (2), nothing in this Act prevents Aboriginals who have traditionally used an area of land or water from continuing to use the area of land or water for hunting, for food gathering (otherwise than for the purpose of sale) and for ceremonial and religious purposes.'