Case: Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Group [2005] FCAFC 135 ; (2005) 145 FCR 442
Outcome: followed
The preamble to the NTA contains what a Full Court of this Court has recently described as the 'moral foundation' on which the legislation rests: Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Group [2005] FCAFC 135 ; (2005) 145 FCR 442 (' Alyawarr Case '), at [63]. The preamble recites the factors that led Parliament to enact the NTA . These include the following: &#8226; the Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement; &#8226; they have been progressively dispossessed of their lands, largely without compensation; and &#8226; as a consequence, they have become, as a group, the most disadvantaged in Australian society. 30 The intention of the people of Australia is said to be: '(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.' 31 The Court in the Alyawarr Case observed (at [63]) that the legislative intention to recognise, protect and support native title stands despite the inclusion in the NTA of substantive provisions which are adverse to native title rights and interests and indeed provide for their extinguishment and for the validation of past acts. The competing policies are reflected in the objects of the NTA, stated in s 3 as follows: 'The main objects of this Act are: (a) to provide for the recognition and protection of native title; and (b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and (c) to establish a mechanism for determining claims to native title; and (d) to provide for, or permit, the validation of past acts ... invalidated because of the existence of native title.' 561 In the Alyawarr Case , decided after argument in the present case had concluded, a Full Court considered the extinguishing effect of pastoral leases that had been granted over the claim area, a large tract of land near Tennant Creek in the Northern Territory. Most of the leases contained reservations in favour of Aboriginal people in terms similar to those contained in PL 456 and PL 1804 in the present case. None of the pastoral leases remained in force at the time the Alyawarr proceedings were commenced. 562 The following was common ground before the Full Court in the Alyawarr Case : &#8226; The pastoral leases were previous non-exclusive possession acts attributable to the Territory (at [123]). &#8226; The right to exclude all others from the claim area was extinguished by the grant of pastoral leases conferring rights inconsistent with the native title right to control access (at [42]). &#8226; The applicants retained the rights to hunt, fish and gather on the land, to use the resources of the land (such as food, plants, trees, charcoal, ochre and stone) and to have access to and the use of water on the land (at [121]). 563 The Full Court held that the following rights of the applicants had not been extinguished by the grant of the pastoral leases: &#8226; To live on the land, to camp, to erect shelters and other structures and to travel over and visit any part of the land and waters (at [133]). The Court rejected the Territory's contention that a native title right of permanent settlement was inconsistent with the rights of a pastoral lease holder (at [131]). &#8226; To engage in cultural activities, conduct ceremonies and participate in cultural practices on the land. The Court held that this right included the right to teach people on the land about the physical and spiritual attributes of places and areas of importance (at [135]). &#8226; To have access to, maintain and protect places and areas of importance on or in the land (at [138], [140]). The Court held that the word 'protect' was appropriate, since it did not imply that the applicants were entitled to exclude others entirely from the relevant places and areas (at [139]-[140]). &#8226; To share or exchange subsistence and other traditional resources obtained on or from the land. The Court rejected the applicants' contention that they had a right to trade in the resources of the land, on the ground that the evidence fell short of establishing the existence of any such traditional right (at [157]).