Case: Attorney-General (NT) v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16
Outcome: discussed
It is instructive to note the final orders made by the Full Court in Ward when the case was remitted for further hearing and determination. See generally Attorney-General (NT) v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16 (" A-G (NT) v Ward "). Those orders were made by consent, but after careful consideration of what Ward HC had held to be the law. They identified the land and waters of the native title determination area, the members of the "estate groups" that held native title, and the nature and extent of the native title rights and interests of the native title holders. Importantly, they were expressed as "non-exclusive rights to use and enjoy the land and waters" in accordance with the estate group members' traditional laws and customs. The word "possess" was not used, and was deliberately avoided. So too was the word "occupy". It should be noted, however, that the Court accepted, in the determination, an express right to "live on the land, to camp, to erect shelters, and to move about the land". This may be tantamount to occupation, at least in a general sense. 548 The existence of native title, and its content, must be determined in accordance with the evidence on a case by case basis. In some cases, as in Mabo (No 2), the courts have suggested that the content of native title may "approach the rights flowing from full ownership under common law". In other cases it has been suggested that native title may involve little more than a right to come on to land for ceremonial or related purposes. 549 There is a debate as to whether native title rights should properly be regarded as proprietary. In part, this may be because native title rights cannot be assigned or sold. That may suggest that such rights are personal, or perhaps should be viewed as sui generis. In Mabo (No 2) , Brennan J observed that even usufructuary rights, which are clearly not proprietary, can be accorded recognition within the ambit of proprietary community title. However, Deane and Gaudron JJ indicated that they regarded native title rights as purely personal, and not proprietary. That was because, not only were those rights inalienable, they could not constitute a legal or beneficial estate or interest in land. 766 The Northern Territory's submission relied upon the following passage from Gumana (No 2) (at [41]-[43], per Mansfield J): "In Attorney-General (NT) v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16 at 25 ( Attorney-General (NT) v Ward ), the Full Court (Wilcox, North and Weinberg JJ) recognised that native title holders cannot obtain exclusive water rights with respect to free flowing or subterranean waters. Their Honours felt it appropriate to make explicit reference to water rights to avoid any possible dispute. In this matter the applicants contend that it is unnecessary to do so given the findings in the reasons for judgment to which I have referred. In determining the appropriate form of determination, it is important to recognise, as his Honour intended, that the native title rights and interests over the land and inland waters, should be expressed so as to include the exclusive right to control access to water on that part of the claim area (it being contained within the claim area over which there is such an exclusive right) and to use and enjoy that water. The factual issue as to the existence of such exclusive rights was ventilated by the pleadings and in the course of evidence, and resulted in the findings to which I have referred. In my view, his Honour's intentions as discernable from the reasons for judgment are consistent with the expression of par 4 of the applicants' proposed determination. It does not mean that they have some additional or unique form of right in respect of subterranean or flowing water on that part of the claim area within the defined section 'land and inland waters'. It means simply that, in respect of that part of the claim area they have the exclusive right to control access to the water within that part of the claim area and to use and enjoy it. It is apparent from the reasons for judgment that his Honour was not seeking to create some new or additional right to 'possess' flowing or subterranean water in a way which extended beyond that recognised in other authorities. I do not think the proposed par 4 of the proposed determination has that meaning. The term 'the land and inland waters' is defined by par 1(a) of Schedule A as a geographical area but not in terms indicating some special and peculiar interest in the waters on that part of the claim area. In my view par 4 appropriately reflects the reasons for judgment." 767 To make the Northern Territory's position absolutely clear, it was submitted that if, contrary to its primary contention, native title were found to exist in relation to the claim area, (and at least in relation to land, the rights and interests possessed included a right to exclude others), the most that could be said in relation to tidal water, was that any native title rights would be non-exclusive.