Case: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1
Outcome: applied
It is convenient at this point to address Yarabala's position, as embodied in the written submissions it ultimately relied on. Yarabala's position appeared to be that the non-exclusive native title rights and interests claimed in respect of the land and waters subject to the current pastoral leases were not native title rights and interests within the meaning of s 223(1)(a) of the NTA. Yarabala's submissions were brief and not easy to follow. As I understood them, however, its submissions were not consistent with now settled principles concerning the construction and application of the NTA. Yarabala submitted that the applicants' evidence established that the traditional laws and customs of the applicants did not now, and never had, comprehended anything less than exclusive rights, and the evidence did not show that the traditional customs observed had evolved to accommodate such a qualification. Yarabala characterised the applicants' argument as being that if one or more of the rights and interests in the bundle comprising native title was partially inconsistent with the valid grant of inconsistent rights, then the remnant was a partially extinguished native title right and interest. Yarabala submitted that such a case could not succeed, firstly because the idea of degrees of inconsistency had been rejected by the High Court in Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (" Ward HC " ) , and secondly, because the applicants' evidence did not establish that the non-exclusive rights and interests claimed in relation to the current pastoral leases were possessed under traditional laws and customs. 44 I do not propose to deal with Yarabala's submissions at length. For the reasons the applicants have given in their written submissions, Yarabala's submissions should be rejected. They involve an unsupportable amalgam of concepts concerning the content of traditional laws and customs and the nature of rights which might be capable of recognition under the NTA. In so far as Yarabala invited precision in relation to the claim area, that will, I apprehend, be achieved. To the extent that I am being invited by Yarabala to express conclusions about the existence or otherwise of rights and interests which might be recognised under the NTA in relation to areas outside the claim area, it is inappropriate for me to do so. The scope of these proceedings and the path they have taken flowed from procedural orders made on earlier occasions (see [29]). It was too late for Yarabala to seek to alter the course of the proceedings. 45 NT Gas filed points of response and took an active role in the proceedings. The position of NT Gas was that its interests in the claim area wholly extinguished native title in the relevant areas. Its submissions are considered under "Issue 4: extinguishment public works land". 97 The applicants then proposed an alternative formulation which they submitted better accorded with the evidence than the claimed right as originally expressed. The reformulation was a "right to light fires on the non-exclusive areas for domestic purposes". The applicants contended that this embraced the domestic purposes of cooking, heating and lighting, but would not cover burning off country and was not inconsistent with the rights under the pastoral leases. Further, the applicants submitted that laws like the Bushfires Act 1980 (NT) did not prohibit the lighting of fires for any of the purposes contemplated by the claimed native title right. Relying on Ward HC (at [26]), the applicants submitted that native title was not extinguished by the existence of statutory powers which if exercised would do no more than regulate the exercise of the native title right without abrogating it, and that although powers in Part III of the Bushfires Act might regulate the exercise of the claimed right, they did not extinguish it. Yarabala resisted this argument and submitted that this was not a regulation of the type contemplated by the High Court in Ward HC . 98 There existed a minor area of contention between the applicants, on the one hand, and the Northern Territory and the Pastoralists on the other, concerning this right. The issue concerned what the claimed right as formulated did and did not comprehend. Relying on Ward HC , the Northern Territory and the Pastoralists submitted that there could be no native title right to burn country. They contended that any right to light fires other than for purposes of cooking, heating and light, was inconsistent with the grant of a pastoral lease. The uncontested evidence, which I accept, was that not only were fires used for cooking and heating but for other purposes which included burning bark for domestic purposes, boiling foliage for medicinal purposes and manufacturing nulla nullas. These purposes are adequately described by the simple formulation proposed by the applicants, namely "domestic purposes". Indeed, the use of the catch all, "other domestic purposes", in the Northern Territory's and the Pastoralists' formulations would, as a matter of construction, extend the right to cover all domestic purposes. That is what the applicants proposed. The applicants' formulation is to be preferred in describing what the right comprehends. 99 It was accepted by counsel for the applicants that on the evidence there was no right to set alight vast grasslands in order to regenerate the country or as an aid to hunting. Indeed, no such right had ever been claimed. However, there appeared to be no dispute that, as I was informed by senior counsel for the Northern Territory, in other Aboriginal societies in the Northern Territory, fires are used for these purposes. The expression "domestic purposes" might be viewed as comprehending such activities and it is, on balance, desirable that it be made clear that the right does not extend to such activities. Accordingly, it is appropriate to include the words "but not for the clearance of vegetation". 105 Counsel for the applicants submitted that the claimed right did not involve an assertion of a right to control access and exclude others from the land. It was submitted that a contention that the claimed right did or might involve such an element had been rejected in two judgments of the Full Court of this Court, being Ward FC (at [24]-[25]) and Alyawarr (at [136]-[140]). There is little room to doubt that this is correct. On the assumption that I accept, which I do, that these authorities establish that a right expressed in the terms proposed by the applicants does not involve an assertion of a right to control access and exclude others from the land, the Northern Territory did not press its contentious words of qualification or clarification. However, the Pastoralists did press the issue. In view of what has now been said by the Full Court on two occasions, it is inappropriate that words of qualification or clarification be included when they are demonstrably unnecessary. 106 The Northern Territory agreed with this claimed right, subject to the inclusion of the clause referred to at [27]. The Pastoralists opposed the inclusion of this claimed right in its entirety. The Pastoralists contended that rights to trade, share or exchange were not rights in relation to land and therefore not recognisable by the common law. The issue was pressed only to preserve the right to argue the matter on appeal, and they acknowledged that the Court was bound to reject the submission on the basis of the Full Court's decision in Alyawarr . 107 The issue concerning this right can be dealt with briefly. I reject the Pastoralists submission, as they accepted I was bound to, that the claimed right was not one in relation to land. 114 There was no real issue about the applicable principles. They can be gleaned from the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward HC (at [219]-[221]). The designation of land as a reserve for certain purposes does not, without more, create any right in the public or any section of the public which by reason of inconsistency extinguished native title rights and interests. Whether a particular native title right continued in existence or was extinguished depended upon other considerations, particularly what, if any, rights in others were created by the reservation or later asserted by the executive. In the present case it is sufficient to focus on the circumstances which existed in 1971 which had been brought about by the initial reservation and the approval of the land as a depot for depositing garbage. Those circumstances were that the land was reserved for a public purpose namely as a garbage reserve and, it can be inferred, garbage from the township was to be deposited in the reserve. Both a right to deposit garbage and an implied obligation to do so been created by that time. The question then was whether this was consistent with the continuation of the native title rights agreed or determined in this matter. 115 In my opinion, the creation of a right to deposit garbage coupled with an implied obligation on third parties to do so involved an assertion of a power to determine how the land should be used which was inconsistent with the continuation of what might be described as some of the core native title rights in this matter such as to travel over, move about and have access to the land, to hunt and fish, as well as to live on the land. The power was exercised for the purpose of the land being used as a garbage dump. Its use in this way would inhibit, and probably significantly, the exercise of the rights just described. The assertion of the power concerning use was inconsistent with the continuation of those rights and they were extinguished. 116 The issues that arose in respect of the land in the claim area subject to historical and current non-exclusive pastoral leases were: 1. whether or to what the rights granted by historical pastoral leases over NT Portions 797, 851, 908, 2093, 4232, 4273, 4274 and the town of Newcastle Waters were inconsistent to any extent with the claimed native title rights; 2. in relation to NT Portions 851, 908 and 2093 presently held under pastoral leases, the extent to which the claimed native title rights were extinguished by the construction of improvements.