mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Citizens Airport Environment Association Inc v Maritime Services Board (1993) 30 NSWLR 207
Outcome: referred to
Reference was made to the judgment of the Court of Appeal of New South Wales in Citizens Airport Environment Association Inc v Maritime Services Board (1993) 30 NSWLR 207. In issue in that case was whether the Federal Airports Corporation was dredging sand "on behalf of" the Maritime Services Board. The Court was divided on whether the dredging was being done "on behalf of" the Board, but that division of opinion turned, in part, on how the various members of the Court viewed the facts. There appeared to be general acceptance that it was necessary for there to be some measure of control by the Board over the dredging to be able to say that the activity was undertaken on its behalf. This authority is of limited assistance particularly given that in the present case there was effectively no evidence concerning whether NTEC exercised any control over the construction of the pipelines, and if so what the nature of the control was. I am not satisfied the main pipeline (or the lateral line) is a "public work" as defined and accordingly its construction was not a previous exclusive possession act extinguishing native title. 186 Alternative submissions were made by NT Gas, namely that the grant of the two pipeline licences engaged s 44H of the NTA and activity done in furtherance of those licences prevailed over any native title rights and interests of the applicants. Reference was also made to the easements but it was accepted by NT Gas that they had no greater extinguishing effect than that flowing from the grant of the pastoral leases. These matters were not addressed in any substantial way in the written submissions nor developed orally. The applicants' draft determination recognises NT Gas's interests deriving from the licences and easements. I do not apprehend that it is presently necessary for me to determine any further issues raised by NT Gas, having dealt with the question of whether the pipelines were public works. 187 This leads to a consideration of the second matter, areas adjacent to public works. Section 23B(7) of the NTA includes as previous exclusive possession acts the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996. Section 251D of the Act provides that a reference to land or waters on which a public work is constructed, established or situated includes a reference to "any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work". The Northern Territory contended that a number of areas of land were adjacent land for the purpose of s 251D of the Act. The adjacent areas of land which the Northern Territory contended fell with s 251D of the Act which are in issue relate to: (a) a road reserve for the Newcastle Waters road; (b) gravel pits servicing the Stuart and Buchanan Highways; (c) water catchment and storage dams servicing the Buchanan Highway; and (d) a buffer zone around Bore RN23745.
Case: Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41 ; (1967) 120 CLR 118
Outcome: referred to
At common law, as Mansfield J noted, a fixture requires a degree of annexation to the land, and an intention that it be permanent: see generally Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712-713. The applicants appeared to make a submission that the pipelines were not fixtures, apart from s 59 of the Energy Pipelines Act, having regard to the observations of the majority of the High Court in Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41 ; (1967) 120 CLR 118 at 127. For my part, I do not view those observations as warranting the conclusion that the pipelines in the present case were not fixtures at common law. Their Honours said that the presumption that whatever is fixed to freehold land is said to become part of it is rebuttable and, in effect, could be rebutted where a statute had empowered someone other than the owner of land to affix to or embed things in the soil and yet retain ownership of those things. Their Honours were addressing what the legal consequences might be of something being a fixture in a particular context, not what was a fixture. In the present case there is little room to doubt that the pipelines are fixtures. They were embedded in the soil and, for all practical purposes, were to remain there permanently. I conclude that they are fixtures. It is unnecessary to determine whether they are also major earthworks.
Case: De Rose v State of South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290
Outcome: applied
The Northern Territory and the Pastoralists contended that the Full Court's decision ought not be followed, for two reasons. Firstly, it was said that the pastoral leases in Alyawarr were not current leases under which pastoral activities were occurring, and secondly, the decision of the Full Court was attended by error. The applicants submitted that the contention that the Full Court had erred could not be maintained because the decision was binding authority. Further, they submitted that Alyawarr could not be distinguished on the basis advanced by the Northern Territory because the relevant inquiry was about inconsistency of rights, not activity. Further, in Alyawarr (at [218]-[227]), the same arguments about a right to live on land were advanced in relation to a current Crown lease, and were rejected. The Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (" De Rose (No 2) ") had also recognised a similarly worded right in relation to lands which had been continuously subject to pastoral leases for over 60 years and remained so at the time of trial and determination. The applicants also submitted that the qualification proposed by the Northern Territory and the Pastoralists suggested a right on the part of the lessee to exclude the native title holders should they remain on the land any longer than "temporarily", which was contrary to the principle that pastoral leases did not confer a right to exclude native title holders from the land established in Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (" Wik ") at 120-121, 146-147, 154-155, 190-195, and Ward HC (at [179]-[186] and [417]).
Case: Fourmile v Selpam (1998) 80 FCR 151
Outcome: referred to
The Pastoralists submitted that the rights granted by a pastoral lease included the right to construct roads, tracks, laneways, mustering routes and like improvements. Since a pastoralist could establish a right of way, it was submitted that the pastoralist must have a right to use it at will. The right to exercise a right of way meant that native title rights could not co-exist with such rights, as both rights could not be exercised at the same time. The Pastoralists referred by analogy to Fourmile v Selpam Pty Ltd (1998) 80 FCR 151.
Case: Griffiths v Northern Territory [2006] FCA 903
Outcome: referred to
The applicants submitted that there was no basis for distinguishing Alyawarr and that it was binding on this Court. The applicants referred also to the decision of Weinberg J in Griffiths v Northern Territory [2006] FCA 903 (" Timber Creek Case "), in which his Honour had regarded himself as bound by the Full Court's conclusion in Alyawarr in relation to the issue of whether the proclamation of Timber Creek as a town disengaged s 47B. Timber Creek, like the town of Newcastle Waters, was a working town and not a paper town like Hatches Creek, the town concerned in Alyawarr . In the Timber Creek Case , Weinberg J said (at [677] [678]): The factual matrix under which s 47B must be considered in the present case differs somewhat from that which applied in Alyawarr . The proclamation constituting and defining the boundaries of Timber Creek, and setting aside Crown lands within the town boundaries so declared as town lands, was dated 10 May 1975. It was made under s 111 of the Ordinance, the same provision that authorised the proclamation of Hatches Creek. The Timber Creek proclamation was published in the Commonwealth Government Gazette on 10 June 1975. As the Full Court noted in Alyawarr, judges at first instance have differed on the application of s 47B to areas within the boundaries of towns constituted by proclamation. In Hayes , Olney J was content to apply the section to unalienated and unreserved Crown land in the town of Alice Springs. In Daniel, however, RD Nicholson J observed that the section would not apply to the town site of Karratha because the proclamation of a site for a town would involve "a public purpose", as well as "a particular purpose". However, because there was no claim to the town site in Daniel (which was, in any event, covered by a reserve) his Honour's comments regarding s 47B were dicta. 237 His Honour continued (at [699] to [700]): Counsel for the Northern Territory did not have the benefit of the considered views of the Full Court in Alyawarr at the time these submissions were made. Plainly, they are at odds with the reasoning of the Full Court. As previously mentioned, Alyawarr was the subject of an unsuccessful application for special leave to appeal to the High Court. Hayne J described the reasoning of the Full Court as 'not attended by sufficient doubt to warrant a grant of special leave to appeal to this Court'. I am of course bound by the decision of the Full Court in Alyawarr. As I was a member of that Full Court, it is hardly surprising that I regard the decision as correct. To the extent that Daniel reflects a different approach to the construction of s 47B, I must respectfully decline to follow that decision. It follows that s 47B(1)(b)(ii) is no impediment to the operation of s 47B in these proceedings.
Case: Gumana v Northern Territory [2007] FCAFC 23
Outcome: referred to
The claimed right in [21](k) is no longer pressed by the applicants, in light of observations made by the Full Court in Gumana v Northern Territory [2007] FCAFC 23 (at [164]-[172]), a judgment given after final submissions were made in these matters. 23 The applicants contended that the neighbouring estate groups and the spouses of the estate group members held native title rights and interests as follows: (a) the right to travel over, to move about and to have access to the non-exclusive areas; (b) the right to hunt and to fish on the land and waters of the non-exclusive areas; (c) the right to gather and to use the natural resources of the non-exclusive areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to take and to use the natural water resources on the non-exclusive areas; (e) the right to camp on the non-exclusive areas; (f) the right to light fires on the non-exclusive areas for domestic purposes; (g) the right to conduct activities necessary to give effect to the rights referred to in (a) to (f) hereof. 24 The rights described in paragraphs (a), (b), (c), (d) and (f) of [21] concerning the neighbouring estate group members are the same as the rights identified in the corresponding paragraphs in [23] regarding the estate group members.
Case: Jango v Northern Territory of Australia [2006] FCA 318 ; (2006) 152 FCR 150
Outcome: referred to
Both the Northern Territory and the Pastoralists submitted that the right should not be expressed as involving or comprehending a "right to live". But that is precisely what the evidence established, the acknowledgement and observance of that right. It must be remembered, as Sackville J observed in Jango v Northern Territory of Australia [2006] FCA 318 ; (2006) 152 FCR 150 (" Jango ") (at [407]), Aboriginal witnesses cannot be expected to recount their laws and customs with anything like the precision that might reasonably be expected of a lawyer expounding common law principles. It is true that the evidence did not establish a present widespread observance of the right to live being exercised in the form of building structures in which to permanently reside. However, that does not compel the conclusion that the claimants did not presently possess that right in the relevant statutory sense. Gleeson CJ, Gummow and Hayne JJ observed in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (at [84]): [E]vidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. That is so, because the critical question concerns possession of the rights and interests and not their exercise.
Case: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: referred to
Both the Northern Territory and the Pastoralists submitted that the right should not be expressed as involving or comprehending a "right to live". But that is precisely what the evidence established, the acknowledgement and observance of that right. It must be remembered, as Sackville J observed in Jango v Northern Territory of Australia [2006] FCA 318 ; (2006) 152 FCR 150 (" Jango ") (at [407]), Aboriginal witnesses cannot be expected to recount their laws and customs with anything like the precision that might reasonably be expected of a lawyer expounding common law principles. It is true that the evidence did not establish a present widespread observance of the right to live being exercised in the form of building structures in which to permanently reside. However, that does not compel the conclusion that the claimants did not presently possess that right in the relevant statutory sense. Gleeson CJ, Gummow and Hayne JJ observed in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (at [84]): [E]vidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. That is so, because the critical question concerns possession of the rights and interests and not their exercise.
Case: NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48 ; (2004) 219 CLR 90
Outcome: referred to
The Pastoralists submitted that the rights granted by a pastoral lease included the right to construct roads, tracks, laneways, mustering routes and like improvements. Since a pastoralist could establish a right of way, it was submitted that the pastoralist must have a right to use it at will. The right to exercise a right of way meant that native title rights could not co-exist with such rights, as both rights could not be exercised at the same time. The Pastoralists referred by analogy to Fourmile v Selpam Pty Ltd (1998) 80 FCR 151. 184 In the present case, the main pipeline was constructed by NT Gas for its own benefit as a supplier of gas to both NTEC and, at least potentially, others. While the supply of gas by NT Gas was essential to sustaining electricity generation by, at that time, a statutory authority (NTEC), it cannot be said that the construction was on behalf of NTEC. While the case concerned entirely different legal issues, some general support for this approach is found in the observations of the High Court in NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48 ; (2004) 219 CLR 90 (at [164] and following). Where infrastructure and utilities historically operated and controlled by government are operated and controlled by trading corporations, it is difficult to treat those corporations as part of the government or protected by a derivative Crown immunity.
Case: R v Toohey; ex parte Attorney General (NT) [1980] HCA 2 ; (1980) 145 CLR 374 
Outcome: referred to
What must be determined is whether against this factual background, the pipelines were constructed on behalf of NTEC. The expression "on behalf of" has no fixed legal meaning: see R v Toohey; ex parte Attorney General (NT) [1980] HCA 2 ; (1980) 145 CLR 374 at 386. It may be used when speaking of an agency relationship or the relationship of trustee and beneficiary but can be used in relation to quite ephemeral relationships. The expression's meaning will be substantially determined by context. In my opinion, the expression "on behalf of" is, in context, intended to comprehend the construction or establishment of a public work where its construction or establishment is done by the Crown or an emanation of the Crown indirectly rather than directly. That is, the work is constructed by a person or body for the Crown or an emanation of the Crown.
Case: Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1
Outcome: referred to
The Northern Territory and the Pastoralists contended that the Full Court's decision ought not be followed, for two reasons. Firstly, it was said that the pastoral leases in Alyawarr were not current leases under which pastoral activities were occurring, and secondly, the decision of the Full Court was attended by error. The applicants submitted that the contention that the Full Court had erred could not be maintained because the decision was binding authority. Further, they submitted that Alyawarr could not be distinguished on the basis advanced by the Northern Territory because the relevant inquiry was about inconsistency of rights, not activity. Further, in Alyawarr (at [218]-[227]), the same arguments about a right to live on land were advanced in relation to a current Crown lease, and were rejected. The Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (" De Rose (No 2) ") had also recognised a similarly worded right in relation to lands which had been continuously subject to pastoral leases for over 60 years and remained so at the time of trial and determination. The applicants also submitted that the qualification proposed by the Northern Territory and the Pastoralists suggested a right on the part of the lessee to exclude the native title holders should they remain on the land any longer than "temporarily", which was contrary to the principle that pastoral leases did not confer a right to exclude native title holders from the land established in Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (" Wik ") at 120-121, 146-147, 154-155, 190-195, and Ward HC (at [179]-[186] and [417]).
Case: Carrington Slipways Pty Limited v Patrick Operations Pty Limited (1991) 24 NSWLR 745
Outcome: cited
The above conclusion is even stronger once one appreciates that the agreement was in fact Planetwide's method of performance of its obligations undertaken in the house bill (though issued in August) to transport, as carrier, the goods to Australia (including a leg by sea) from the defendant's premises in North Weald (being the place of receipt on the bill). There are difficulties and some controversy about the status of the so-called house bills issued by freight forwarders or non-vessel owning contractual carriers (NVOCCs): compare Carrington Slipways Pty Limited v Patrick Operations Pty Limited (1991) 24 NSWLR 745 at 751-753 and Comalco Aluminium Ltd v Mogal Freight Services Pty Limited (1993) 113 ALR 677 as to the different views of Handley JA and Sheppard J, respectively, as to the characterisation of house bills of freight forwarders. As to the role of such bills, see Norfolk Southern Railway Co v James N Kirby Pty Limited 545 US 14 (2004) and the discussion in Treitel G and Reynolds F Carver on Bills of Lading (2 nd Ed) at 548-49 [9-103] and the other cases and articles there cited. Notwithstanding those difficulties, there can be little doubt that a freight forwarder can agree with a shipper or consignor to perform the duties of a carrier, including a sea carrier, even though it will not be in possession of the goods while they are on the water. The Planetwide bill here made clear that Planetwide was issuing the bill as principal. Although issued after the events, it reveals that the defendant was carrying out duties that were in fact undertaken by Planetwide as part of a multimodal carriage.
Case: Comalco Aluminium Ltd v Mogal Freight Services Pty Limited (1993) 113 ALR 677
Outcome: cited
The above conclusion is even stronger once one appreciates that the agreement was in fact Planetwide's method of performance of its obligations undertaken in the house bill (though issued in August) to transport, as carrier, the goods to Australia (including a leg by sea) from the defendant's premises in North Weald (being the place of receipt on the bill). There are difficulties and some controversy about the status of the so-called house bills issued by freight forwarders or non-vessel owning contractual carriers (NVOCCs): compare Carrington Slipways Pty Limited v Patrick Operations Pty Limited (1991) 24 NSWLR 745 at 751-753 and Comalco Aluminium Ltd v Mogal Freight Services Pty Limited (1993) 113 ALR 677 as to the different views of Handley JA and Sheppard J, respectively, as to the characterisation of house bills of freight forwarders. As to the role of such bills, see Norfolk Southern Railway Co v James N Kirby Pty Limited 545 US 14 (2004) and the discussion in Treitel G and Reynolds F Carver on Bills of Lading (2 nd Ed) at 548-49 [9-103] and the other cases and articles there cited. Notwithstanding those difficulties, there can be little doubt that a freight forwarder can agree with a shipper or consignor to perform the duties of a carrier, including a sea carrier, even though it will not be in possession of the goods while they are on the water. The Planetwide bill here made clear that Planetwide was issuing the bill as principal. Although issued after the events, it reveals that the defendant was carrying out duties that were in fact undertaken by Planetwide as part of a multimodal carriage.