Case: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group and Another [2005] FCAFC 135 ; (2005) 145 FCR 442
Outcome: followed
Counsel for the applicants submitted that as pastoral leases did not confer a right of exclusive possession, it followed from Ward HC (at [179] [186]) that pastoral lessees had no right to exclude or limit access of native title holders to lands held under pastoral lease. The reservation in pastoral leases did not define or confine the native title right to access the land: see Ward HC (at [417]). The possibility of conflict in the exercise of the native title right and rights being exercised (or which might be exercised) by a pastoralist was said to be irrelevant in determining inconsistency of rights. Counsel for the applicants did concede, however, that if there was a conflict in activity, the activities of the pastoralists prevailed: s 9L of the Validation (Native Title) Act (NT) ("VNT Act") . Counsel for the applicants noted the determinations by the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group and Another [2005] FCAFC 135 ; (2005) 145 FCR 442 (" Alyawarr ") (at [122] and [133]) and Attorney-General (NT) v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16 (" Ward FC ") (at [11]). Those determinations contained no qualification of the type proposed by the Pastoralists. Counsel for the applicants also noted that the applicants accepted that the determination should contain a clause to the effect that where there was a conflict in the exercise of rights, the rights of the Pastoralists prevailed. 69 In my opinion, the qualification of the right of access proposed by the Pastoralists by the inclusion of the word "limited" is unnecessary. Once it has been established by evidence that there is a native title right of access, a matter not disputed by the Pastoralists, then the right should be expressed in terms fully describing the right. The circumstances identified by the Pastoralists were instances involving the exercise of a right of access. What, in substance, the qualification sought to address was the exercise of unqualified rights by, on the one hand the native title holders exercising a right of access, and, on the other, the right of pastoralists to conduct pastoral activities exercising rights conferred by the pastoral lease. But the circumstances involving a conflict in the exercise of rights is addressed by the applicants' acceptance in their draft determination of a clause which provides that to the extent, if at all, that the exercise of native title rights and interests conflicts with the exercise of the rights and interests of the pastoral lease holders, the rights and interests of the pastoral lease holders prevail over but do not extinguish the native title rights and interests. 70 The Northern Territory submitted that, on the authority of Ward FC , this right was to be understood as a right to hunt and fish for traditional food and not to hunt livestock, so as to avoid inconsistency with the grant of the pastoral leases. This submission was adopted by the Pastoralists. The applicants did not take issue with this proposition.