Top End Aboriginal Corporation RNTBC v Northern Territory of Australia

1. The determination of native title made in Ngajapa v Northern Territory [2015] FCA 1249 on 26 November 2015 be varied as follows: a) clauses 9(c) and 10(c), after the words "to use", add ", and to take, for any purpose,"; b) clause 9(1), omit the words "subsistence and other traditional"; c) clause 12(a), omit the words "for personal or communal needs which are of a domestic or subsistence nature and not for any commercial or business purpose".
2. The determination of native title varied by order 1 is in the form of the varied determination of native title provided for in Attachment A.
3. No costs in relation to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Attachment A Varied native title determination Ngajapa v Northern Territory [2015] FCA 1249 The Determination Area
   1. The Determination Area is the land and waters described in Schedule A hereto and depicted on the map comprising Schedule B.
   2. Native title exists in those parts of the Determination Area identified in Schedule C.
   3. Native title does not exist in those parts of the Determination Area identified in Schedule D.
   4. In the event of any inconsistency between a description of an area in a schedule and the depiction of that area on the map in Schedule B, the written description will prevail. The native title holders
   5. The land and waters of the Determination Area comprise the whole or part of eleven estates, which are held respectively by the members of the following estate groups: (a) Kamanja (Wuyaliya) estate group (b) Ngurrmu / Jawuma (Rrumburriya) estate group (c) Pupuwina (Rrumburriya) estate group (d) Mangurrungurru / Wulkuwulku (Wuyaliya) estate group (e) Mawuli (Wuyaliya) estate group (f) Wurruwiji (Wurdaliya) estate group (g) Jirrinmini (Mambaliya) estate group (h) Gulpalyi (Wurdaliya) estate group (i) Garambarini (Wurdaliya) estate group (j) Gulaurruna (Rrumburriya) estate group (k) Warrgi (Wuyaliya) estate group. These persons, together with the Aboriginal people referred to in clause 7 hereof, are collectively referred to as "the native title holders".
   6. Each of the estate groups referred to in clause 5 hereof includes persons who are members of the group by reason of: (a) patrilineal descent; (b) his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent; (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof. These persons are collectively referred to as "the estate group members".
   7. In accordance with traditional laws and customs, other Aboriginal people have native title rights and interests in respect of the Determination Area, subject to the native title rights and interests of the estate group members, such people being: (a) members of estate groups from neighbouring estates; (b) spouses of the estate group members.
   8. Each of the estate groups referred to in clause 7(a) hereof includes persons who are members of the group by reason of: (a) patrilineal descent; (b) his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent; (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof. The native title rights and interests
   9. The native title rights and interests of the estate group members referred to in clause 5 hereof in relation to those parts of the Determination Area identified in Schedule C, being an area where there has been partial extinguishment of native title, are the non-exclusive rights being: (a) the right to travel over, to move about and to have access to those areas; (b) the right to hunt and to fish on the land and waters of those areas; (c) the right to gather and to use, and to take, for any purpose, the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease No. 1051; (e) the right to live, to camp and for that purpose to erect shelters and other structures on those areas; (f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation; (g) the right to conduct and to participate in the following activities on those areas: (i) cultural activities; (ii) cultural practices relating to birth and death, including burial rites; (iii) ceremonies; (iv) meetings; (v) teaching the physical and spiritual attributes of sites and places on those areas that are of significance under their traditional laws and customs; (h) the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs; (i) the right to share or exchange subsistence and other traditional resources obtained on or from those areas; (j) the right to be accompanied on to those areas by persons who, though not native title holders, are: (i) people required by traditional law and custom for the performance of ceremonies or cultural activities on the areas; (ii) people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; (iii) people required by the estate group members to assist in, observe, or record traditional activities on the areas; (k) the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof.
   10. The native title rights and interests of the native title holders referred to in clause 7 hereof in relation to those parts of the Determination Area identified in Schedule C, being an area where there has been partial extinguishment of native title, are the non-exclusive rights being: (a) the right to travel over, to move about and to have access to those areas; (b) the right to hunt and to fish on the land and waters of those areas; (c) the right to gather and to use, and to take, for any purpose, the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease No. 1051; (e) the right to camp on those areas; (f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation; (g) the right to conduct activities necessary to give effect to the rights referred to in (a) to (f) hereof.
   11. The native title rights and interests do not confer on the native title holders possession, occupation, use and enjoyment of those parts of the Determination Area identified in Schedule C, to the exclusion of all others.
   12. The native title rights and interests are subject to and exercisable in accordance with: (a) the traditional laws and customs of the native title holders for personal or communal needs which are of a domestic or subsistence nature and not for any commercial or business purpose; (b) the laws of the Northern Territory of Australia and the Commonwealth of Australia.
   13. There are no native title rights and interests in: (a) minerals (as defined in s 2 of the Minerals (Acquisition) Act (NT)); (b) petroleum (as defined in s 5 of the Petroleum Act (NT)); (c) prescribed substances (as defined in s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s 5(1) of the Atomic Energy Act 1953 (Cth)), in the Determination Area. Other interests in the Determination Area
   14. The nature and extent of other interests in relation to the Determination Area are the interests, created by the Crown or otherwise, as follows: (a) the interests of Mount Isa Mines Limited under Perpetual Pastoral Lease No. 1051; (b) the Automatic Weather Station located within the external boundaries of the McArthur River Mine Airport on Perpetual Pastoral Lease No. 1051; (c) the interests of the Parks and Wildlife Commission of the Northern Territory in respect of the Caranbarini Conservation Zone comprising Administrative Parcel NT Portion 5921A pursuant to the Territory Parks and Wildlife Conservation Act (NT); (d) the rights and interests of Telstra Corporation Limited: (i) as the owner or operator of telecommunications facilities within the Determination Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: (A) to inspect land; (B) to install and operate telecommunications facilities; and (C) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (iii) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; (iv) under any lease, license, access agreement or easement relating to its telecommunications facilities in the Determination Area; (v) as the owner and operator of the McArthur River Optical Fibre Repeater and to occupy the 10m by 10m area of land that has its centre point at 182162.500 N, 156354.000 E, and which contains the McArthur River Optical Fibre Repeater facility and associated telecommunications infrastructure; (e) the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples contained in Perpetual Pastoral Lease No. 1051 and ss 38(2) - (6) of the Pastoral Land Act (NT); (f) the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act (NT); (g) rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or other statutory authority as required in the performance of statutory duties; (h) the interests of persons to whom valid and validated rights and interests have been: (i) granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or (ii) otherwise conferred by statute; (i) the following interests granted under the Mineral Titles Act (NT) and the Petroleum Act (NT), depicted in Schedule E: (i) Exploration Licence Title No. 26833 granted on 9 June 2009; (ii) Exploration Licence Title No. 28659 granted on 27 October 2011; (iii) Exploration Licence Title No. 25313 granted on 28 May 2007; (iv) Exploration Licence Title No. 26831 granted on 9 June 2009; (v) Exploration Licence Title No. 30156 granted on 9 June 2009; (vi) Exploration Licence Title No. 28508 granted on 20 July 2011; (vii) Exploration Licence Title No. 28656 granted on 27 October 2011; (viii) Exploration Licence Title No. 28657 granted on 27 October 2011; (ix) Exploration Licence Title No. 30080 granted on 9 May 2014; (x) Exploration Licence Title No. 26406 granted on 18 June 2008; (xi) Exploration Licence Title No. 28528 granted on 7 December 2012; (xii) Exploration Licence Title No. 30302 granted on 9 June 2009; (xiii) Exploration Licence Title No. 30736 granted on 21 August 2015; (xiv) Exploration Licence Title No. 30077 granted on 9 May 2014; (xv) Exploration Licence Title No. 27711 granted on 9 July 2010; (xvi) Exploration Licence Title No. 30085 granted on 11 April 2014; (xvii) Exploration Licence Title No. 27750 granted on 20 September 2010; (xviii) Exploration Licence Title No. 30775 granted on 21 August 2015; (xix) Exploration Licence Title No. 30774 granted on 21 August 2015; (xx) Exploration Licence Title No. 30076 granted on 9 May 2014; (xxi) Exploration Licence Title No. 29487 granted on 7 December 2012; (xxii) Exploration Licence Title No. 26397 granted on 26 March 2008; (xxiii) Exploration Licence Title No. 30776 granted on 21 August 2015; (xxiv) Exploration Licence Title No. 30737 granted on 21 August 2015; (xxv) Exploration Licence Title No. 29021 granted on 3 August 2012; (xxvi) Exploration Licence Title No. 24401 granted on 3 June 2005; (xxvii) Exploration Licence Title No. 30494 granted on 8 April 2015; (xxviii) Exploration Licence Title No. 25467 granted on 15 August 2007; (xxix) Exploration Licence Title No. 10316 granted on 22 July 2002; (xxx) Exploration Licence Title No. 27541 granted on 24 March 2010; (xxxi) Exploration Licence Title No. 28006 granted on 2 November 2010; (xxxii) Exploration Licence Title No. 28951 granted on 7 March 2012; (xxxiii) Exploration Licence Title No. 28952 granted on 7 March 2012; (xxxiv) Exploration Licence Title No. 28007 granted on 2 November 2010; (xxxv) Exploration Licence Title No. 30042 granted on 14 October 2013; (xxxvi) Exploration Licence Title No. 29951 granted on 21 November 2013; (xxxvii) Exploration Licence Title No. 29290 granted on 10 September 2012; (xxxviii) Exploration Licence Title No. 29955 granted on 21 November 2013; (xxxix) Exploration Licence Title No. 26944 granted on 30 April 2009; (xl) Exploration Licence Title No. 10189 granted on 23 July 2002; (xli) Exploration Licence Title No. 30752 granted on 21 August 2015; (xlii) Exploration Licence Title No. 29837 granted on 27 August 2013; (xliii) Exploration Licence Title No. 29952 granted on 21 November 2013; (xliv) Exploration Licence Title No. 29953 granted on 14 February 2014; (xlv) Exploration Licence Title No. 30751 granted on 21 August 2015; (xlvi) Exploration Licence Title No. 30750 granted on 21 August 2015; (xlvii) Exploration Permit Title No. 184 granted on 21 August 2013; (xlviii) Exploration Permit Title No. 171 granted on 29 June 2011; (xlix) Exploration Permit Title No. 190 granted on 11 December 2012; (l) Exploration Permit Title No. 176 granted on 29 June 2011; (j) the rights and interests of Mount Isa Mines Limited under Mineral Lease Numbers 1121 to 1126 inclusive granted under s 4A of the McArthur River Project Agreement Ratification Act (NT) to which the non-extinguishment principle applies pursuant to s 46 of the Act; (k) the rights and interests of the parties under the McArthur River Project Agreement between the Northern Territory of Australia and Mt Isa Mines Limited dated 25 November 1992 and included as Schedule 1 to the McArthur River Project Agreement Ratification Act (NT); (l) the rights and interests of the parties under the following agreements: (i) Co-existence and Exploration Deed for Exploration Permit Title No. 171 and Exploration Permit Title No. 176 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 22 June 2011; (ii) Co-existence and Exploration Deed for Exploration Permit Title No. 190 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 19 November 2012. Relationship between native title rights and interests and other interests in the Determination Area
   15. The relationship in the Determination Area between native title rights and interests and the other rights and interests described in clause 14 ("other rights and interests") is that: (a) the enjoyment and exercise of the native title rights and interests described in clauses 9 and 10 are partly inconsistent with the interests described in clauses 14(b) and 14(j) such that the native title rights and interests described in clauses 9 and 10 continue to exist in their entirety but have no effect in relation to the interests described in clauses 14(b) and 14(j) to the extent of any inconsistency; (b) if the interests described in clauses 14(b) and 14(j) or their effects are wholly removed or otherwise wholly cease to operate over any part of NT Portion 4319, the native title rights described in clauses 9 and 10 again have full effect to that extent; (c) to the extent, if at all, that the exercise of the native title rights and interests referred to in clauses 9 and 10 conflicts with the exercise of the rights and interests of the persons referred to in clause 14, the rights and interests of the persons referred to in clause 14 prevail over, but do not extinguish, the native title rights and interests referred to in clauses 9 and 10. Schedule A Description of Determination Area The Determination Area comprises the following areas of land:
   16. NT Portion 4319, being land the subject of Perpetual Pastoral Lease No. 1051. Schedule B Map of Determination Area Schedule C Areas where native title exists The areas of land and waters in respect of which the native title rights and interests in clauses 9 and 10 apply are:
   17. NT Portion 4319, being land the subject of Perpetual Pastoral Lease No. 1051 except those parts thereof referred to in Schedule D. Schedule D Areas where native title does not exist Native title rights and interests have been wholly extinguished in the following areas of land and waters:
   18. Those parts of the Determination Area covered by public works as defined in s 253 of the Act (including adjacent land or waters as defined in s 251D of the Act) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date, including but not limited to: (a) public roads, whether rural roads, arterial roads or national highways; (b) community and pastoral access roads which are not otherwise public roads; (c) gravel pits adjacent to the roads referred to at paragraphs (a) and (b) hereof used to maintain those roads; (d) access roads or tracks to the public works referred to in this clause; (e) Government bores and associated infrastructure including bores used for the establishment, operation or maintenance of public and other roads; (f) river and rain gauges; (g) transmission and distribution water pipes and associated infrastructure; (h) sewer pipes, sewer pump stations and associated infrastructure; and (i) electricity transmission lines, towers, poles and associated infrastructure. Schedule E Map of interests granted under the Mining Titles Act (NT) and the Petroleum Act (NT) Schedule F No: NTD 17 of 2014 (McArthur River Pastoral Lease) Federal Court of Australia District Registry: Northern Territory Division: General Second Respondent: Mount Isa Mines Limited Third Respondent: Commonwealth of Australia Fourth Respondent: Telstra Corporation Limited Fifth Respondent: Ripple Resources Pty Ltd Sixth Respondent: Armour Energy Limited

Introduction 1 The applicant seeks a variation of the approved determination of native title made in Ngajapa v Northern Territory [2015] FCA 1249 (the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination) under ss 13(1)(b) and (5), 61(1) and 87(1)-(2) of the Native Title Act 1993 (Cth) (the Act). The effect of the variation sought is to remove from that determination an exclusion preventing the members of the native title claim group from exercising their native title rights for a commercial or business purpose. 2 In support of the application the applicant requests that the Court adopt the findings of fact made by Mansfield J in Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776 (Rrumburriya Borroloola Claim) under s 86(1)(c) of the Act. The approved determination of native title in the Rrumburriya Borroloola Claim relates to land adjacent to the area the subject of the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination. 3 I am satisfied that I should adopt the findings in the Rrumburriya Borroloola Claim under s 86(1)(c) of the Act and that the requirements of ss 13(5)(b) and 87(1)-(2) are satisfied. As it appears appropriate to do so under s 87(1A) of the Act, I make orders for the variation of the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination in accordance with s 87(2) consistent with the agreement of the parties.

Proposed variation 4 The proposed variation of the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination is as follows: (1) clause 9(c) is amended to read: …being the right to gather and to use, and to take for any purpose, the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (2) clause 9(i) is amended to read: …the right to share or exchange subsistence and other traditional resources obtained on or from those areas"; (3) clause 10(c) is amended to read: …the right to gather and to use, and to take for any purpose, the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (4) clause 12(a) is amended to read: The native title rights and interests are subject to and exercisable in accordance with the traditional laws and customs of the native title holders for personal or communal needs which are of a domestic or subsistence nature and not for any commercial or business purpose.

Statutory provisons 5 Under s 61(1) of the Act a registered native title body corporate may apply to the Court for a revised native title determination including the variation of an approved determination of native title, on the grounds set out in s 13(5). 6 Section 13(5) provides that the grounds for variation of an approved determination of native title are: (a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or (b) that the interests of justice require the variation or revocation of the determination; or (c) that the determination relates to an area in relation to which the agreement required by paragraph 47C(1)(b) has been given. Note: Section 47C provides for extinguishment of native title rights and interests in relation to certain areas such as national parks etc. to be disregarded. 7 The applicant, a registered native title body corporate, relies on s 13(1)(b) of the Act to support the proposed variation of the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination. 8 Other relevant provisions of the Act include: (1) s 66: the requirement for notification of the application. This requirement has been satisfied, notification having taken place from 28 July 2021 to 27 October 2021; (2) s 68: the provision that there must be only one approved determination of native title in relation to any area, which is subject to s 13(1) enabling variation of the approved determination. In the event of the variation of the approved determination, the varied approved determination itself becomes an approved determination of native title in place of the original as provided for in s 13(4)(c); (3) s 86: which enables the Court to adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in the provision. As noted, for the purpose of its application the applicant seeks adoption of findings made in the Rrumburriya Borroloola Claim. This power is permissive and facultative, and means that the Court need not (but may) consider the evidence upon which the adopted finding was made: Fulton v Northern Territory [2016] FCA 1236 at [46], Griffiths v Northern Territory [2007] FCAFC 178; (2007) 165 FCR 391 at [23], and Phillips v Western Australia [2000] FCA 1274 at [16]; and (4) s 87: which enables the Court to make an order in, or consistent with, the agreement of the parties about the terms of an order if the agreement is in relation to the proceedings and is between the required parties, the terms of the agreement in writing and signed by the parties have been filed, the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court, and it appears to the Court to be appropriate to make the order. In the case of the variation of an approved determination of native title, the requirements of s 13(5) (see above) must be satisfied. Further, as the order involves a determination of native title, the requirements of ss 66 (as to notice) and 94A and 225 (as to the details which must be set out in such a determination) must also be satisfied. 9 I agree with the reasoning in Tarika Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40 (see also Robe River Kuruma Aboriginal Corporation RNTBC v State of Western Australia [2021] FCA 20 at [51]-[55] citing Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416) that if the Court is satisfied that the grounds for variation are met pursuant to s 13(5)(b) of the Act, it is unnecessary to review the grounds for the making of the determination under ss 87 or 87A of the Act (relating to the requirements to be satisfied for the Court to make an order in accordance with an agreement of the parties). 10 However, it should be noted that ss 87(1)(c) and 87A(4)(a) both require that any order made as a result of an agreement between parties must be on terms "within the power of the Court". 11 In other words, for a variation (or revocation) of an approved determination of native title, the Court must be satisfied that one or more of the grounds in s 13(5) of the Act exist. Further, an order giving effect to an agreement between the parties under ss 87(2) or 87A(4), where the agreement is for a variation or revocation of an approved determination of native title, will be an order varying or revoking that approved determination under s 68(c), having the effect of replacing the original determination as provided for in s 13(4)(c) of the Act. 12 This approach to the statutory scheme ensures the harmonious operation of all of its provisions. The requirement that an order giving effect to an agreement be within the power of the Court is fundamental. While the statutory scheme embodies the important object of facilitating resolution of dispute about native title by agreement between the parties (see, for example, Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[38] and Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [3]-[22]), the requirement that the order reflecting the terms of the agreement be within the power of the Court is mandatory. To this end, regard should also be had to the facultative provisions of ss 87(4)-(5) and 87A(5), which enable the order of the Court to give effect to terms of an agreement that involve matters other than native title, provided such an order itself is within power. 13 The procedural requirements in ss 61, 66 and 87 are satisfied in the present case. 14 The issue is whether the ground for the making of the application as identified in s 13(5)(b) of the Act on which the applicant relies (that the interests of justice require the variation of the determination) is satisfied. If not, the proposed variation will not be within the power of the Court as required by s 87(1)(c) of the Act. The answer to this question depends on the factual findings in the Rrumburriya Borroloola Claim, which the applicant contends should be adopted in this proceeding under s 86(1)(c) of the Act. 15 The factual findings which the applicant asks the Court to adopt from the Rrumburriya Borroloola Claim are in Sch 1 to these reasons for judgment. One effect of those findings is that the members of the Rrumburriya Borroloola claim group are entitled to access and take for any purpose the resources within the area the subject of their approved native title determination. At [364] Mansfield J said: In the light of the above, in my view, the right to take resources was not confined to taking for personal or communal purposes of a domestic or subsistence in nature. There is no basis in the Aboriginal or the expert evidence which I have accepted for concluding that the admitted right to take resources was confined in this way (or at all). 16 The approved native title determination consequent upon those findings is set out in Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908. This approved determination relates to "all the land and waters within the external boundary of the Town of Borroloola - Gazette Number NTG35 dated 30/8/1972 as further described below, excluding Lot 828, being the areas shown generally on the map in Schedule B". As noted, the area the subject of the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination is adjacent to the area the subject of the Rrumburriya Borroloola Claim determination. 17 The findings from the Rrumburriya Borroloola Claim sought to be adopted include the following: (1) the original society that was united in and by their acknowledgement and observance of a body of laws and customs occupied the claim area and a wider adjacent area: [45]; (2) members of the claim group had traditional connections with land outside the Town of Borroloola including in and around the McArthur River: [138]-[143]; (3) the claim area forms part only of Rrumburriya country: [145]; (4) extensive resources were taken from the claim area and the surrounding region: [254] and [258]; (5) traditional laws and customs regulated the taking of resources from the area of the Town of Borroloola and the wider region: [261]; (6) the resources taken from the claim area (and the general Borroloola region - using the expression in the Joint Memorandum) were extensive, and unrestricted save by cultural considerations such as conservation, protection of sacred areas, and the regulation imposed by the group hierarchy: [272]; (7) the members of the claim group continued to exploit the claim area and its surrounds in a pervasive way: [299]; and (8) the traditional rights of use and access extended to the claim area and surrounding areas and included extensive trade routes and applied to the whole of the region: [309], [324]-[327], [336], [339]. 18 I consider that I should adopt the factual findings which Mansfield J made in the Rrumburriya Borroloola Claim, as identified in Sch 1. This is appropriate having regard to: (1) the Preamble to the Act, which discloses the legislative intention to rectify the consequences of past injustices to Aboriginal and Torres Strait Islander people, it being "particularly important to ensure that native title holders are now able to enjoy fully their rights and interests" and that the just and proper ascertainment of native title rights and interests, if possible, is done by conciliation and, if not, in a manner that has due regard to their unique character; (2) the object of the Act in s 3(a) to provide for the recognition and protection of native title; (3) the facility which s 13 of the Act provides for the variation of approved determinations on one or more of the specified grounds; (4) the fact that those grounds include the requirements of the interests of justice which involves broad, evaluative considerations; (5) the fact that the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination was the result of an agreement between the parties and had to be consistent with that agreement, whereas the Rrumburriya Borroloola Claim determination was the result of a contested hearing about the precise issue the subject of the proposed variation (the right to use resources from the claim area for any purpose), including extensive evidence over a number of days; and (6) the consent of all parties to the course proposed by the applicant, including the Northern Territory, which was the principal respondent in Ngajapa, being the judgment that led to the making of the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination. 19 Other uncontested evidence in this proceeding includes the following: (1) the country of the Ngurrmu Jawuma (Rrumburriya) group (comprising four sub-groups) includes areas on the western boundary of the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) and extends south to the area of the Narwinbi Aboriginal Land Trust (the area of the former Borroloola Common) and the Town of Borroloola; (2) Aboriginal witnesses in the Rrumburriya Borroloola Claim are among the members of the claim group for the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination; and (3) there is a substantial commonality between the composition of the members of the claim groups in the Rrumburriya Borroloola Claim and the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination, with the former being the Aboriginal people of the Rrumburriya who hold rights in the Town of Borroloola and the latter being the Aboriginal people of the Rrumburriya who hold rights in McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination area. 20 I am satisfied that the findings and evidence to which I have referred mean that the interests of justice require the variation of the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination as sought by the applicant, the effect of which will ensure that the native title rights and interests to use resources as between the different Rrumburriya groups or sub-groups are consistent (that is, that resources may be taken and used for any purpose and not merely for personal or communal needs which are of a domestic or subsistence nature). This is necessary in the interests of justice as: (1) Mansfield J's findings recognise that the area the subject of the Rrumburriya Borroloola Claim is a small part of a much wider region in which related groups or sub-groups of the Rrumburriya society exercised the same rights under traditional laws and customs including the pervasive exploitation of resources; (2) nothing in the findings of Mansfield J or in the evidence would support any inference that the traditional laws and customs of one sub-group confined the exercise of rights to use resources in a manner different from that considered by Mansfield J. To the contrary, the findings and evidence overwhelmingly support the conclusion that the whole Rrumburriya society, including all groups or sub-groups, were united by the same traditional laws and customs giving the different groups or sub-groups the right to use resources for any purpose, the groups or sub-groups having traditional connections to various areas of land within the region; (3) on Mansfield J's findings and the evidence it would be irrational to conclude that the rights of the Ngajapa claim group in respect of the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination area are more confined than those of the members of the claim group in the Rrumburriya Borroloola Claim - they are the one society sharing one set of traditional laws and customs, albeit that for the purpose of making a native title determination under the Act it was necessary to identify the different groups or sub-groups by reference to the land over which their rights may be exercised in accordance with those traditional laws and customs; and (4) in these circumstances, it is unjust for the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination to remain on terms preventing the members of that claim group from using resources from their claim area for any purpose.

Conclusions and orders 21 For these reasons, I am satisfied that I can and should make the orders as sought varying the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051) determination. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.

Associate: Dated: 7 February 2022 SCHEDULE 1 FINDINGS ADOPTED IN THIS PROCEEDING Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776 No Finding Para 1 … the area the subject of the claim, [is] the Town of Borroloola. [20] 2 … other nearby areas, have largely now been recognised by Determinations of the Court as held by the Claim Group, in some cases slightly redefined because of local considerations under the NTA [Native Title Act]. The present issue as to the nature and extent of the right to control access to the claim area, and to take and use the resources of the claim area, was not contentious in those determinations: see … Ngajapa v Northern Territory [2015] FCA 1249. [21] 3 Borroloola lies inland of the south-western corner of the Gulf of Carpentaria. In that section of the Gulf of Carpentaria there is the Sir Edward Pellew group of islands (the larger ones of which are West Island, South-west Island, Centre Island, North Island and Vanderlin Island). There are numerous smaller islands … collectively the Islands. They are variously proximate to the coastline, which features significant saline coastal flats with mangroves and extensive water channels. Relevantly, for present purposes, the McArthur River flows into the Gulf of Carpentaria by a broad delta of channels proximate to South-west Island and runs inland roughly from the south-west, affected by the tides, for some 40 kms to and past Borroloola. Significantly further upstream, is the McArthur River Mine. The McArthur River flows further upstream from that mine as well … [22] 4 The acquisition of sovereignty over the claim area occurred on 7 February 1788. [43] 5 Significant non-indigenous settlement of the claim area and claim region did not occur until the 1880s. [44] 6 At the time of sovereignty, the Binbinka, Gudanji, Yanyuwa, Garawa, Mara and Wilangara language groups were or were part of a body of persons (the original society) who were united in and by their acknowledgement and observance of a body of laws and customs. They occupied the claim area and a wider adjacent area. [45] 7 The laws and customs of the original society included that primary rights or interests in relation to particular areas of land or waters (estates) were ordinarily possessed through descent from one's father and father's father, mother's father, father's mother and mother's mother (estate groups) and included the right to access, remain and use the estate. [46] 8 The laws and customs of the original society included that strangers could be refused access, or have conditions imposed on access, to sites in an estate or be accompanied by a person who possessed rights or interests in and knowledge and authority in respect of the estate. Strangers were ideally required to ask permission from such a person. [48] 9 Gudanji, Yanyuwa, Garawa and Mara language groups continue to be or to be part of a body of persons who are united in and by its acknowledgment and observance of a body of laws and customs. [54] 10 The laws acknowledged and the customs observed by the persons referred to above are both traditional and "traditional laws and customs" within the meaning of s 223(1)(a) of the NTA. Those traditional laws and customs derive from a normative system that has had a continuous existence and vitality since the time of sovereignty. Further, the members of the claim group have continued to acknowledge and observe those traditional laws and customs, in particular in relation to the claim area, without any substantial interruption. [55] 11 Under the relevant traditional laws and customs and subject to: [59] (i) a disputed qualification in relation to the utilisation of the resources of the claim area; and (ii) other qualifications that are at least in substance a matter of agreement; the nature and extent of the rights and interests possessed in relation to the claim area are the rights of possession, occupation, use and enjoyment as against the whole world. 12 Written witness statements and oral evidence was given from six Aboriginal people, and a further Aboriginal man, Billy Miller gave oral evidence only. Five of these witnesses are both senior and knowledgeable about the relevant traditional laws and customs of the Claim Group. The other of these witnesses, Wendy (Polly) Roper, is also knowledgeable about such matters, albeit that she is still a relatively young woman. Each of these six witnesses, save for Jack Green, is a member of the Claim Group. Jack Green, being a Garawa man, is a member of the relevant society. [137] 13 Graham Friday was born in Borroloola in 1959 and is now 57 years old. Graham's father was Short Friday, a Yanyuwa man who was ngimarringki for South West Island, and his mother was Larrlya, who was a Rrumburriya woman who was ngimarringki for Vanderlin Island and other nearby islands and for the country in and around the town of Borroloola. Graham grew up at Marlandarri Camp on the eastern side of the McArthur River. He has lived in Borroloola for most of his life and is now one of the senior jungkayi for the claim area and for the Rrumburriya estate of which it forms part. [138] 14 Warren Timothy was born in Tennant Creek and is 49 years old. He is a grandson of Tim Rakawurlma and a son of Punch Walala Timothy, who was a Yanyuwa and Rrumburriya man with ngimarringki country on Vanderlin Island. Warren's mother was Norman Timothy, whose ngimarringki country was West Island, which is Mara and Yanyuwa country. As a result of events before Warren was born, his grandfather Tim, his father, he and various others were or are ngimarringki for the Rrumburriya estate that includes the claim area. Warren has lived in Borroloola for most of his life. [139] 15 Wendy (Polly) Roper was born in Katherine Hospital. Although only 34 years old, she speaks the Yanyuwa and Garawa languages. Wendy is a daughter of Borroloola Willy, a very senior Rrumburriya man who was ngimarringki for the claim area and the Rrumburriya country around it, as were his ancestors going back for many years. Wendy's father died when she was young, so she was raised with the McDinny family at Wandangula (Police Lagoon), which is located on the same Rrumburriya country as the town of Borroloola. Her mother was a Garawa woman, Janie Charlie. Wendy has spent most of her life living at Wandangula, but has also frequently visited Borroloola and stayed at different places there for extended periods with family members. [140] 16 Jack Green was born in 1953 and is a 62 year-old Garawa man who was born in a creek bed on Soudan Station near the Northern Territory and Queensland border. His mingirringgi (a Garawa word which means the same thing as the Yanyuwa word ngimarringki) country Warrul forms part of the Garawa ALT area at Robinson River and also extends on to Spring Creek North pastoral lease. His ngimarringki country Mambu is located in the headwaters of a tributary of the Wearyan River. Jack moved to Borroloola in the early 1970s and has lived there ever since, save for some times away working. Jack has a small outstation just to the west of Borroloola on Two Dollar Creek and is a board member of the Northern Territory's Aboriginal Areas Protection Authority. [141] 17 Dinah Norman was born in a canoe in 1933 near her father's father's (ganggu) country on south-west Island (Warnarrwarnarr). Dinah's father was Tall Friday who was a cousin-brother of Short Friday. Dinah's mother was a Rrumburriya woman, Minnie a-Wulbulinimarra. Dinah is a very senior Yanyuwa woman and a very senior jungkayi for the Borroloola town area and the Rrumburriya country nearby. She has lived in Borroloola for most of her life. [142] 18 Mavis Timothy is 68 years old and a Yanyuwa Rrumburriya woman. She is a granddaughter of Vanderlin Jack (who was photographed by Spencer and Gillen at the beginning of the 20th century), a daughter of Tim Rakuwurlma / Old Tim (a man referred to a lot in the evidence) and is an auntie of Warren Timothy. Mavis' mother, Judy a-Margawi, was ngimarringki for south-west Island and Mavis is jungkayi for this country. Mavis is ngimarringki for Vanderlin Island and other nearby islands and for the country in and around the town of Borroloola. She was born and grew up at Malandarri. Apart from three periods working away from Borroloola, Mavis has always lived in Borroloola, including when working for 30 years as a health worker in the town. [143] 19 Each of these witnesses identified their main teachers in relation to cultural matters. These teachers were generally at least one generation above the witness, sometimes two generations. [144] 20 Billy Miller gave brief oral evidence on two occasions. Billy is the oldest male jungkayi for the Rrumburriya country of which the claim area forms part. [145] 21 I have no hesitation in accepting all of those witnesses as both truthful and reliable. In particular, to the extent that they gave evidence of what they had seen or heard from their elders now deceased relevant to the existence at settlement of a traditional right to control access to the claim area and to take and use the resources of the claim area, and of the continuity of those traditional rights and the manner of their exercise of those rights, what they have said will of course be of significance. [148] 22 The two expert witnesses Mr Stead and Professor Sansom are both very experienced and well-respected anthropologists. [150] 23 He [Mr Stead] has, importantly, had substantial hands-on experience with the Borroloola region and the general surrounding region. He lived in Borroloola for approximately six or seven months during 1975/76, and then until the end of 1976 commuting there on a regular basis from another Aboriginal community, Ali Curung. During that period he undertook approximately 70 weeks' field work for a range of projects, including the St Vidgeon Station native title claim, the Urapunga Township native title claim, McArthur River and Bing Bong native title issues and various ALRA claims. He has explained that in detail in an appendix to his Report: "Applied Anthropology Field Work: Gulf of Carpentaria/Roper River/McArthur River Region". [153] 24 Mr Stead also knew well Old Tim Rakawurlma (who featured prominently in the Aboriginal evidence), his brother Banjo and their sons and daughters, as well as other prominent Aboriginal people in Borroloola such as Musso Harvey (who was chairman of AAPA [Aboriginal Areas Protection Authority]), Gordon Lansen and Roy Hammer (who was also chairman of AAPA and a senior jungkayi for men-only ceremonies in Borroloola). Musso Harvey was mingirringgi for the town area. Gordon Lansen was also ngimarringki for the Borroloola town area. Roy Hammer was a Mara man who was married into Yanyuwa. Musso Harvey, Gordon Lansen and Roy Hammer, each of whom is now deceased, were each identified as an important teacher of one or more of the Aboriginal witnesses. [154] 25 … it was common ground that the claim group, and the Aboriginal people in the claim region are accepted as being within the "Gulf Cultural bloc", and that to the further north of Borroloola there is a separate "Arnhem Land Cultural bloc". [160] 26 Prior to sovereignty, long distance exchange routes criss-crossed the continent. [195] 27 Prior to sovereignty (and thereafter), the general Borroloola region was divided into three general environmental types: marine (coastal); the adjacent inland; and the subsequent adjoining inland plain or tableland areas that stretched well inland of Borroloola. Each type featured different resource bases and unique technologies were developed to exploit each unique resource base. Resources taken from the marine region focused on foods such as sea turtles, dugongs and sea bird eggs and the technologies needed to exploit these such as canoes, paddles, harpoons and native ropes. Resources taken from the inland zone featured species such as fish, small game and specific flora species and the technologies required to utilize such resources included spears, fish nets, fish traps, dilly bags, and the containers required to process flora. Resources taken from the plains / tableland zone featured resources such as seed, grass, tubers, wild honey, reptiles and small marsupial species and the technologies required to exploit these included stone tools such as axes, spear heads and grinding stones. Material non-food items were taken such as ochre, stone, fibres and wood. [196] 28 Prior to sovereignty, Macassan trepangers came annually from the Celebes to northern Australia, including to the islands of the Sir Edward Pellew Group, to capture trepang, which were in great demand in parts of Asia. [197] 29 The Macassans negotiated a form of agreement with their Aboriginal hosts that was probably an agreement grounded in economic considerations of bargaining and mutual advantage. The Macassans sought and got permission from Aboriginal land holders. [200] 30 The Macassan visitations continued until 1907 when Australian waters became closed to them. [201] 31 In my view, it is also appropriate to accept that the provision of goods by the Macassans to Aboriginal people was not random and that it was in return for access to their land and waters and the resources. [214] 32 The lay evidence may also inform the findings about the nature and character of the people of the claim region with the Macassans at sovereignty. [223] 33 It is clear enough from the lay evidence that up to 1907, when dealing in trepang was made unlawful, the people of the claim region had quite extensive dealings with the Macassans. That covers the period from about the late 1800s, because their inter-generational informants reported it to them, including reporting some personal observations. [243] 34 … the evidence indicates strongly that from about 1783 onwards, and until 1907, the people of the claim region dealt with the Macassans on a regular basis exchanging the partial access to the resources of the waters in the vicinity of the Islands, and the partial use of the physical resources of the Islands themselves in exchange for material objects seen by the people of the region as having value and practical utility. Those dealings, at least as the lay evidence shows - going back in memory of their informants as to the later part of the 19th century - was, at the least, consistent with the traditional laws and customs of the Aboriginal people then holding native title rights over the Islands. [245] 35 … I do not consider that there is a need for the Applicants to show that they had a unit of currency as that is conventionally understood, or an objective measure of value, before the claimed right can be established. Nor, as my subsequent findings indicate, do I accept that the only reason for the taking and use of resources was for social, domestic or religious purposes. [249] 36 It is common ground that at sovereignty, there were extensive resources that could be, and were, taken from the claim area and the surrounding region … There was also extensive evidence from the Aboriginal persons who gave evidence as to their own and others taking and using of the resources from the claim area and nearby to it which was clearly genuine and reliable. [254] 37 The resources taken on and near the claim area at present, and in the memory of the Applicants through their lay evidence, and anecdotally from what they had been told by their elders, included the taking of barramundi, biggigi (green plums), not simply used for food but used as an antiseptic to sores and its skin used separately as an antiseptic, black pine tree to make spears, black plums (ma- karlawumbi), blood wood used both for construction of accommodation and for necklaces, blue tongue lizard (a-wayurr), bream (marrinda), brinimum tree used by taking the bark and chewing with tobacco, bush turkey (a- kurndabarra), catfish (awarndimuda), crabs, dumbyumbu (sandalwood) used as a bush medicine, boiled and drunk as a medicine, and made into an ointment for use and sale, and used for bathing as an antiseptic, firewood, fresh water crayfish (majika), freshwater mussels (abiya), freshwater turtle (short neck, bal-wir), freshwater turtle (long neck), garlwa garlwa (white plums), gingal crushed and boiled to make red dye for baskets, goanna (wadapa), ground sugar bag (not the sugar bag found in trees), jubardirri (bush blackberries), kalabirr (tree used to make fishing lines and boiled to treat sores), kangaroo, iamurra (ironwood) used extensively for smoking ceremonies, for cooking, for trade with salt water people, for boomerangs, digging sticks harpoons, coolamons and fighting sticks, lemongrass (a-winga) boiled and drunk as bush medicine, lilly seeds (makakayi) ground for damper, ma-kawurrka rarrvi (wattle tree) used for digging sticks, to make string from bark for canoes, for clicking, and to indicate the change of hunting seasons; ma-manja (bush passionfruit) used not only for eating, but to wrap fish in paper bark for cooking, ma-murala (bush cucumber), ma-wabarl (vine bush potatoes), mawalung (coolabah) used as bark for chewing with tobacco, for building material for bough sheds and for cooking; ma-wungan as medicine to treat diarrhoea, r-makkir, used as white paint in ceremony and traded in ceremony, paper bark tree (a-binjirri) used as burned bark for chewing with tobacco, to wrap shark for cooking, and its leaves boiled for medicine by inhaling, as building material for humpies, to make dugout canoes, for burial ceremonies, and to cover the underground ovens; pandanus used for making baskets and eating its nuts; perch (mijgurndi) used as live bait to catch barramundi; red ochre used for burial ceremonies; red snapper (ngarradaurna), rifle fish (jurlbi), sand used to soften the ground for dancing in ceremonies; shark (adamu), stone used for grinding, sugar bag (durlbarri, wild honey), tamarind, both seeds and fruit mixed with tobacco for chewing; tea tree and tea tree bark used for making humpies and as other building materials for bough sheds; trevalli (wandaranda); wanyiya (single-stemmed bush potato); water collected from streams for general use; water goanna (aiya- rraga); and yathawula (eucalypt tree) used for making spears. [255] 38 In addition, there are additional resources from other parts of the claim region … It includes crabs, dugong (both for eating and for ceremonial exchange); lye cart pine (mabuyarra) used for making float for dugong hunting and to make canoes; messmate (budanja) used to make canoes and to make harpoons for hunting dugong; mussels; paperback trees (waragi) to make canoes; pine (waguwagu) used to make clapsticks and to make paddles for canoe; sea turtle used for eating, for ceremonial use, and for shell painting and sale, and its eggs are also eaten; trepang (tharriba) (collected for the Macassans). [257] 39 That description represents a broad description of the resources of the area now taken, and to a degree previously taken, from the claim area and from the claim region by the Indigenous people. To list the resources in that way does not do justice to the depth of knowledge, or the intensity of feeling, which the indigenous witnesses each conveyed in relation to their relationship with the country, their history, and their cultural associations with each other and with other groups and the depth of their connection with the country. But it is sufficient for present purposes. [258] 40 I have referred above to the evidence of each of the lay witnesses, when addressing the dealings with the Macassans. The evidence was directed to that particular topic and, inevitably, also addressed as part of the material the more general dealings with resources of the Claim Group and the people of the claim region. [259] 41 The evidence of Graham Friday, Wendy (Polly) Roper and Dinah Norman was not specific to the Macassan dealings, but addressed generally what they knew about the laws relating to taking and dealing with the resources of the claim area and the wider region. Warren Timothy specifically addressed the area of the Islands, as well as the general area. So too did Mavis Timothy. She provided a strong link between the people for the Islands and the Town itself. Her evidence specifically founded the dealings with the Macassans in traditional laws and customs. Billy Miller, although his evidence was generic rather than focused on dealings with the Macassans, identified himself as "an island man". As his evidence related to the Town and to the areas surrounding the Town (including the Cairns Contracting arrangement), he too presented a picture of a coherent and functioning set of traditional laws and customs addressing the right to access and take the resources of the claim area and the wider region. [261] 42 It is also apparent that in contemporary times there have been a number of transactions between the Claim Group through the Narwinbi Aboriginal Land Trust (NALT) and others which clearly have a commercial character. [262] 43 The resources taken from the claim area (and the general Borroloola region - using the expression in the Joint Memorandum) were extensive, and unrestricted save by cultural considerations such as conservation, protection of sacred areas, and the regulation imposed by the group hierarchy. The resources were used for utilitarian purposes and for consumption. More recently, the resources have clearly been "traded", subject to the cultural considerations referred to. [272] 44 There is nothing to suggest that the access to and use of the resources at sovereignty was not, subject to the cultural considerations referred to, equally available and utilized. [273] 45 There is extensive evidence of resource utilisation by claimants at the present time and by their forebears in the past. [298] 46 The claimants and their forebears have exploited, and continue to exploit, the resources of the claim area and its surrounds in a pervasive way. This extends to the large range of resources on the surface of the land, but also to resources in waters that overlie the land and to resources that are found beneath the surface of the land. Examples of underground resources that emerged in the evidence are goannas, bush potatoes and perhaps other underground vegetables and the red dye gingal used for dyeing pandanus for basket making. Ground sugarbag is found under rocks on the country and is extracted using a digging stick or crow bar. [299] 47 Other activities mentioned in the evidence involved ground disturbance. For example, people who died at Marlandarri were buried in a burial ground downstream from the camp, various foods were (and are) cooked in ground ovens and stone and were used for various purposes. [300] 48 For decades in the 20th century up to about 1970 (about which time people moved from the eastern to the western side of the river), canoe makers such as Mara man Mac Riley sold canoes to a diverse range of buyers, for example, the Welfare Branch and old Tim Rakawurlma. Some forebears of claimants such as Old Tim and Norman Kingsley made boomerangs and sold them at places such as the pub, at Mara Camp or the Arts Centre. The old people, including people from the family of Dinah Norman, made baskets and coolamons. Dinah Norman herself made coolamons for sale. Baskets, necklaces and jars of dumbuyumbu continue to be made by persons such as Nancy McDinny and Peggy Mawson, a Garawa woman who has lived in Borroloola for a long time, and sold through the Arts Centre. Through the NALT, claimants have entered into a range of commercial agreements relating to resources on their country. On the evidence, all these things are done as of right. [301] 49 It may be accepted that the pre-sovereignty normative system may well have undergone adaptation from its pre-sovereignty status. It is not necessary to refine the analysis of the adaptations, because the reference point is the traditional laws and customs as at 1788. To the extent that traditional laws and customs have undergone relevant adaptation since 1788, such adaptation is permissible. [302] 50 I do not consider that, at sovereignty, the resource access and utilisation activities of the Claim Group were confined to a ceremonial exchange system in accordance with their traditional laws and customs. [306] 51 And, looking backwards, from the present exercise of the rights of access to and use of the resources of the claim area and surrounding areas, which in my view plainly demonstrates the exercise of those rights (and therefore the nature of the substantive rights) as not being confined to personal or domestic usage, whether that present position represents what was in existence at sovereignty, or whether the present practice represents an exercise of rights which is different from that which existed at sovereignty. [308] 52 It should be acknowledged that the current right to access and use the resources of the claim area, and surrounding areas, is not unconstrained … They are part of the normative system under the traditional laws and customs of the claim group and the people of the Borroloola region which, I find, existed at sovereignty and which was applied to the dealings with the Macassans. [309] 53 There is no basis in the evidence for a finding that any post- sovereignty changes to laws and customs relating to resource rights constituted a new rule reflecting a lack of continuity of the traditional normative system. [310] 54 I find that, having regard to the evidence as a whole the interactions with the Macassans occurring at and from the time of sovereignty comprised the exchange or trade of the resources of the land and waters of the Islands within the traditional laws and customs as then existed, rather than outside them. Over time, those interchanges in my view had come to be built into the traditional laws and customs regulating the relationships between the Macassans and the people of the region. [324] 55 In my view, the evidence clearly shows the barter or exchange of commodities. From the Macassan side, it was the facility of using the lands of the Islands, and apparently some nearby coastal land and to fish for trepang … From the viewpoint of the native title holders, it was the material objects received in exchange for permitting the Macassans to access those resources of the sea and of the land areas of the Islands which is important. The partial giving of the entitlements which are within the native title rights and interests which they possessed under their traditional laws and customs at the time, and which are rights and interests in relation to the land or waters of the region, of itself means that the native title holder was permitting access to the resources of the area in exchange for the material benefits referred to. [325] 56 The fact is that they were giving access to the Macassans to their land and waters for the purpose of the Macassans using the resources there, when at the time the people of the region under their traditional laws and customs had the exclusive right to access and use those resources. It was therefore an exercise of their rights under their traditional laws and customs to allow the Macassans access to the resources of the land and waters of the area. [326] 57 In my view, the transactions involved the giving of limited access to the resources of the land and waters for material and useful purposes for the Macassans in exchange for the objects and consumables which they received from the Macassans. They are sensibly described as transactions of a commercial kind. [327] 58 In the light of Mr Stead's views, which I accept … it is likely that the norms that governed the dealings between Aboriginal people and the Macassans included: [333] (a) the exercise of the right to control permission to use the country which can be granted or refused; (b) the restriction in any event of permission to use the area where it might take place in a sacred area; (c) the exercise of the right of the senior people like jungkayi and ngimarringki to make decisions about large use of country; (d) the control of behaviours as necessary, with the threat of permission being withdrawn; and (e) the control of the use of resources so they take place on a sustainable basis. 59 Moreover, on the evidence, the effects of the interactions with the Macassans spread beyond the Islands to the coastal fringe and beyond. [336] 60 It does not, in any event, follow that even if these dealings involved only small numbers of coastal Aboriginal people, contrary to my findings, the norms associated with those dealings were somehow outside the normative system of the relevant society. Such norms would apply to whichever members of the society were dealing with the Macassans. [337] 61 I therefore conclude that the Macassan visitation to the Islands involved the activities of trade, barter or exchange of a commercial kind, dating from at least 1780 … I therefore conclude that the dealings with the Macassans was conducted by the Indigenous people of the region in exercise of their unrestricted rights to control access to the region, including the Islands, and to access and take the resources of the region without restriction. I also conclude that the people of the region were part of a wider group of Indigenous people which included the present claim group. [339] 62 I accept that at the time of settlement, those arrangements were made in accordance with the traditional laws and customs of the Aboriginal people. The fact that the at-sovereignty customary system itself incorporated limitations on the right of estate group members to take resources at a point in time makes it likely that those normative rules were applied to those dealings. The fact that the persons subject to that customary system (or at least the great majority of them) had no knowledge or experience of commerce or business does not mean that the exercise of the right to take and deal in the resources of the area was external to, and remote from, that normative system when those dealings took place, as the respondents contend. [340] 63 There is also evidence that dealings of the kind that occurred at the Islands between the Aboriginal people and the Macassans could occur and did occur as part of the normative system elsewhere. [341] 64 … it is highly likely that something that might be described as "direct purchase" between the Macassans and the Islanders did occur prior to sovereignty. [342] 65 Apart from the immediate evidence about the traditional laws and customs of the native title holders, as first observed and (as I infer - consistently with the agreed facts) at settlement, which supports that conclusion, there is other more generic evidence of the traditional laws and customs of the wider Aboriginal communities, particularly in the northern parts of Australia and around the Gulf of Carpentaria, which supports that conclusion. [343] 66 It may be accepted that, at sovereignty, some resources would not have been used because there was then no known use for them or because something else was more useful. For example, there is no evidence that Aboriginal people ate trepang or did anything else with it. As Mr Stead explained, and I accept, a great majority of species would have been utilised in whatever way was available to that mode of life. [348] 67 I therefore do not accept that a "frozen-in-time" approach should be taken, to define and limit the extent of the right to access and take the resources of the area. [350] 68 The traditional right to take and use the resources of an area is not to be limited to the resources actually used at the moment of sovereignty. For instance, the use of ochre for ceremonies would exist in relation to such ochre resources as were known at the time of settlement and to other ochre resources which came to be known five or ten or fifty years later on the same country. The traditional right to take and use ochre is evidenced by that activity, but it is a right in itself. The use of a particular plant for medicinal purposes would not be confined only to those plants growing at the time of settlement. If it were learned that another type of plant could be used for a similar purpose, but that was learnt only five or ten or fifty years after settlement, that would not mean the use of that type of plant was not one accessible in accordance with the traditional laws and customs of the area. If it were not known at settlement that the plant could be used for a specific purpose but could be used for a different purpose, that does not restrict or confine the nature of the traditional right to take and use the resources of the area including that plant. [351] 69 … it is accepted that the estate group members had the unqualified right to access, remain on and use their estate subject to and in accordance with the laws and customs of the original society, and that estate group members had the rights to access and take the resources of their estate and to control the access to and use of the estate and its resources by others. [352] 70 Within the claim group, there were (as admitted) some secondary rights holders … Estate group members had the capacity to control the taking and using of an estate's resources by others. [353] 71 Access to estates is controlled by the estate members and there is a hierarchy of property rights in the resources of the estate … [355] 72 I have referred above to the evidence which I accept: [356] a) about the right of estate group members under traditional law and custom to control the activities of strangers on their country and about their right to take action in respect of others (whether strangers or not) who breach law and custom; b) to the effect that estate group members are the owners of their country - they have the right to speak for it, to make decisions about it and to control what happens on it; and c) to the effect that estate group members have the right to take whatever resources they need from the country (including resources in waters and underneath the surface of the ground) and to use them as they see fit (including to sell them or to use them in the production of articles for sale), and that nobody has the right to stop them doing so, subject only to certain customary constraints. 73 Within the exercise of those rights, the evidence showed a number of customary constraints on the exercise of their resource rights. Those constraints are accepted as being traditional, on the basis that they have been handed down by the claimants' forebears. Aboriginal witnesses spoke of the need under traditional laws and customs for them to avoid waste and to take only what they need. These requirements related in particular to food resources. [357] 74 The constraints referred to above relate to the exercise of claimants' resource rights. They do not detract from the rights themselves … [363] 75 In the light of the above, in my view, the right to take resources was not confined to taking for personal or communal purposes of a domestic or subsistence in nature. There is no basis in the Aboriginal or the expert evidence which I have accepted for concluding that the admitted right to take resources was confined in this way (or at all). [364] 76 On the evidence, I find the right to access and take the resources possessed by estate group members is the right claimed on their behalf, namely the right "to access and to take for any purpose the resources of the estate". The resource right possessed by secondary rights holders is also the right claimed on their behalf, namely the right "to access the resources of the estate". [366]