Jango v Northern Territory of Australia [2007] FCAFC 101 (6 July 2007)

Last Updated: 6 July 2007

FEDERAL COURT OF AUSTRALIA

Jango v Northern Territory of Australia [2007] FCAFC 101

ABORIGINES - native title – compensation claim – nature of native title rights and interests extinguished – criteria for identification of native title holders – criteria presented in application and points of claim – evidence insufficient to support existence of traditional laws and customs asserted in criteria – whether trial judge ought to have determined pre-existing native title on other bases – function of pleadings – inability of court to undertake general inquiry – whether trial judge misunderstood pleaded case – no error by trial judge – appeal dismissed – notice of contention – whether registration of title under Real Property Act 1886 (SA) validly extinguished native title – effect of indefeasibility provisions – effect of validation provisions of Native Title Act and Validation Act


Native Title Act 1993 (Cth) s 50, s 51, s 61, s 62, s 94, s 94A
Aboriginal Land Rights (Northern Territory) Act 1976
Crown Lands Ordinance 1931 (NT)
Validation (Native Title) Act 1994 (NT)
Real Property Act 1886 (SA)
Crown Lands Act 1931 ( NT)
Racial Discrimination Act 1975 (Cth) s 10(1)
Native Title Amendment Act 2007 (Cth)

Jango v Northern Territory [2006] FCA 318; (2006) 152 FCR 150 cited
De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 cited
De Rose v South Australia (No 2) 145 FCR 302 cited
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 cited
Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401 cited
Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 cited
Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 cited
Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR
Assets Company Ltd v Mere Roihi [1912] UKHL 4; [1905] AC 76

Andrews N, English Civil Procedure – Fundamentals of the New Civil Justice System (Oxford University Press, 2003)
Whalan DJ, The Torrens System in Australia (Sydney, Law Book Co, 1982)
Baalman J, The Torrens System in New South Wales, (2^nd ed), (Sydney, Law Book Co, 1974)


JOHNNY JANGO, JUDY TRIGGER, MANTATJARA WILSON, NGOI NGOI DONALD AND WINDLASS ALURITJA v NORTHERN TERRITORY OF AUSTRALIA, GPT MANAGEMENT LIMITED AND COMMONWEALTH OF AUSTRALIA
NTD 3 OF 2006

FRENCH, FINN AND MANSFIELD JJ
6 july 2007
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 3 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JOHNNY JANGO First Appellant JUDY TRIGGER Second Appellant MANTATJARA WILSON Third Appellant NGOI NGOI DONALD Fourth Appellant WINDLASS ALURITJA Fifth Appellant
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent GPT MANAGEMENT LIMITED Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent

JUDGES:	FRENCH, FINN AND MANSFIELD JJ
DATE OF ORDER:	6 JULY 2007
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The parties are to file and serve submissions with respect to the costs of the appeal and the notice of contention within 21 days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 3 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JOHNNY JANGOFirst AppellantJUDY TRIGGERSecond AppellantMANTATJARA WILSONThird AppellantNGOI NGOI DONALDFourth AppellantWINDLASS ALURITJAFifth Appellant
AND:	NORTHERN TERRITORY OF AUSTRALIAFirst RespondentGPT MANAGEMENT LIMITEDSecond RespondentCOMMONWEALTH OF AUSTRALIAThird Respondent

JUDGES:	FRENCH, FINN AND MANSFIELD JJ
DATE:	6 july 2007
PLACE:	DARWIN

REASONS FOR JUDGMENT

THE COURT:
Introduction

1	On 12 June 1997 Johnny Jango, Judy Trigger, Mantatjara Wilson, Ngoi Ngoi Donald and Windlass Aluritja (the appellants) and another person who has since died, commenced proceedings in this Court seeking a determination of compensation under s 61(1) of the Native Title Act 1993 (Cth) (the NTA). They brought the application on behalf of a group of Yankunytatjatjara and Pitjantjatjara people whose native title rights and interests in land around the town of Yulara in the Northern Territory were said to have been extinguished (the Compensation Claim Group). The land comprises 104 square kilometres. It was proclaimed as the town of Yulara on 29 July 1976.
2	The area covered by the application (the Application Area) lies just to the north of the South Australian border with the Northern Territory and in the eastern portion of the Western Desert. The Western Desert covers eastern parts of Western Australia, northern parts of South Australia and southern parts of the Northern Territory.
3	The Application Area is bounded on three sides by land held by the Katiti Aboriginal Land Trust pursuant to a grant made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act). The southern boundary of the Application Area abuts Uluru-Kata Tjuta National Park (which is located on an area that was reserved for that purpose in 1958, under s 103 of the Crown Lands Ordinance 1931 (NT), and includes Ayers Rock (Uluru) and the Olgas (Kata Tjurta or Kata Tjuta)). The Land Rights Act grant arose out of a claim (the Ayers Rock (Uluru) Land Claim) lodged under that Act by the Central Land Council in December 1978. The Ayers Rock (Uluru) Land Claim was over unalienated Crown land south west of Alice Springs, lying between the Petermann Reserve and Curtin Springs pastoral lease with Tempe Downs to its north and Mulga Park to its south. The current Application Area, which fell within the area the subject of the Ayers Rock (Uluru) Land Claim, was excluded from that claim, it being common ground that land within a town could not be claimed under the Land Rights Act. Uluru-Kata Tjuta National Park was included in the claim but the Aboriginal Land Commissioner at the time, Toohey J, held the Park was not "unalienated Crown land", and on that basis it fell outside his jurisdiction. He reported on the remaining claim area in 1979 and found that there were "traditional Aboriginal owners" for the purposes of the Land Rights Act for most of the unalienated Crown land. The report identified the traditional owners of what was described as the Ayers Rock Estate. They included Nipper Winmati and his son Colin Nipper, Reggie Uluru, Cassidy Uluru and Ngoi Ngoi Donald. The report of the Land Commissioner was in evidence before his Honour [159].
4	On 26 October 1985 a Handback/Leaseback ceremony took place at Uluru. This involved a ceremonial transfer of the title of Uluru-Kata Tjuta National Park to persons whom the primary judge described as the "traditional owners" and its leaseback by them. Mr Yami Lester became the Chairman of the first Uluru-Kata Tjuta Board of Management. Members of that first board included Reggie Uluru, Barbara Tjikartu, Nellie Patterson and Tony Tjamiwa. Reggie Uluru, a witness in the case, was the son of Paddy Uluru who died in 1979. Paddy Uluru was regarded by Aboriginal and non-Aboriginal witnesses alike as the "Number One man" for country around Uluru.
5	In 1986 a further inquiry under the Land Rights Act was initiated, by the Central Land Council, into claims to land excised from the Ayers Rock (Uluru) Land Claim. The further inquiry concerned land north of the area the subject of the former claim (and thus north of the Application Area), between Kings Canyon National Park, Curtin Springs Pastoral Lease and Angas Downs Pastoral Lease. The witnesses included Yami Lester, Barbara Tjikartu, Nellie Armunta, Bessie Liddle, Julie Clyne and Ngoi Ngoi Donald, all of whom gave evidence in the present case. The Commissioner (Maurice J) found that there were traditional owners within the meaning of the Land Rights Act to two small portions of the claim area, but not for the balance: See Report of the Aboriginal Land Commissioner (Maurice J), Lake Amadeus Land Claim (Report No 28, 1989) at [430].
6	The present proceedings under the NTA were commenced on 12 June 1997. Questions relating to the existence of native title and its extinguishment were heard as preliminary issues in the application. Determination of the quantum of any compensation was deferred pending resolution of the preliminary question. The trial commenced on 21 October 2003 and concluded on 13 April 2005 after 42 days of hearing. The trial judge delivered a careful, lengthy and comprehensive judgment on 31 March 2006: Jango v Northern Territory [2006] FCA 318; (2006) 152 FCR 150. His Honour dismissed the application. He did so on the basis that the appellants had not shown that, at the relevant time, any native title rights and interest subsisted over the area covered by their compensation claim. He found that the evidence presented did not prove the case for native title as formulated in the application and in points of claim filed as a formal statement of the nature of the appellants’ case. The appellants have appealed against that decision.

The Compensation Determination Application

7	The final form of the Compensation Determination Application upon which the hearing proceeded was as amended pursuant to an order made by the trial judge on 17 June 2003.
8	Schedule A of the application defined the Compensation Claim Group in [4] as follows:

The native title holders of the area the subject of this application when the entitlement to compensation arose were the people of the eastern Western Desert who were living and who at that time met at least one of the following conditions in relation to the application area:

(a) having a "borning place" on or in close proximity to the area. A borning place is a socially recognised place of birth which may be the place where the person was born, where the baby’s umbilical cord became detached, where the placenta was buried, where ritual ‘smoking’ of the baby occurred, or the place of conception. It may not be the exact place where the event occurred but rather the closest site to the event, or even a bigger site on the same Dreaming track;

(b) having a borning place, or that of a parent or grandparent, at a place on the track of a Dreaming which travels through the area, particularly if that place is upstream along the narrative site sequence and not overly distant in geographical and mythological terms;

(c) having kin links to the area. People can claim interests in the places with which various of their kin have been identified, including antecedents, offspring, siblings, spouses and in-laws;

(d) having close kin such as a parent or grandparent who died or was buried in the area;

(e) having given birth to a child in the area.

The condition set out in [4(d)] was abandoned and it was accepted that there was no evidence to support the condition in [4(e)].

9

Paragraph 5 stated that the native title holders "... include those of the following persons who were living when the extinguishing acts were done which give rise to the entitlement to compensation...". A list of names then followed which it is not necessary to reproduce for present purposes. Paragraphs 6 to 9 involved elaboration of the terms "people of eastern Western Desert" and "people of the Western Desert". Paragraphs 6 and 7 stated:

The people of eastern Western Desert are people of the Western Desert who by the indigenous laws acknowledged and customs observed by them have a connection with an area of the eastern Western Desert.

The people of the Western Desert are those Aboriginal persons who identify with varieties or dialects of the one language that is associated with the land and waters of the Western Desert but has no single indigenous name. The dialects of the language of the Western Desert include Yankunytjatjara and Pitjantjatjara.

Paragraph 10 identified the eastern Western Desert as a subregion of the Western Desert corresponding to social, cultural and linguistic variations, "... including variations in the way that the relationships of people to land and waters are reckoned and recognised".

10	In [11] of Schedule A it was stated:

The people of the Western Desert acknowledge and observe a body or system of indigenous laws and customs in relation to land and waters that does not identify country as aggregates of discrete bounded areas or ‘estates’. Nor do those laws and customs identify ‘clans’ or other discrete bounded territorial groupings of people. Personal choice and a level of unpredictability, negotiability and contestation are features of the indigenous laws acknowledged and customs observed by the people of the Western Desert.

11	The Application Area, which was described by reference to its boundaries in Schedule B of the application, incorporates the Yulara Tourist Village. The village provides accommodation and services for the many tourists who visit Ayers Rock (Uluru) and the Olgas (Kata Tjuta). The Connellan Airport lies within the Application Area. It is the point of entry for tourists who travel to the area by air.
12	Schedule E in the application set out, as required by s 62 of the NTA, a description of the native title rights and interests for which compensation was claimed. This appeared at [16] of the application:

The native title rights and interests for which compensation is claimed were:

(a) the right to occupy, use and enjoy the land and waters of the application area, including as incidents of that entitlement-

(i) the right to hunt and fish the land and waters of the area, to gather and use its natural resources, and to have access to and use of the natural waters of the area;
(ii) the right to live on the application area, to camp, to erect shelters and other structures, and to move about the area;
(iii) the right to engage in cultural activities on the application area, to conduct ceremonies, to hold meetings, to teach the physical and spiritual attributes of places, and to participate in cultural practices relating to birth and death;

(b) the right to have access to, maintain and protect places of significance to the native title holders under their traditional laws and customs on the application area;

(c) the right to control access to the application area by people (including Aboriginal people subject to or who acknowledge the traditional laws and customs of the eastern Western Desert) other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;

(d) the right to control access to places on the application area from time to time so as to protect the secrecy, and prevent the disclosure otherwise than in accordance with traditional laws and customs, of tenets of spiritual beliefs and practices (including designs, songs, narratives, rituals and ceremonies) which relate to the application area, or places on the application area;

(e) the right to make decisions about the use and enjoyment of the resources of the application area by people (including other Aboriginal people subject to or who acknowledge the laws and customs of the eastern Western Desert) other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;

(f) the right to share, exchange or trade resources obtained on or from the application area;

(g) the right to use and enjoy the application area and its natural resources for the purposes of teaching, communicating and maintaining cultural, social, environmental, spiritual and other knowledge, traditions, customs and practices of the native title holders in relation to the application area;

(h) the right to be acknowledged as the owners of the application area in accordance with traditional laws and customs;

(i) the right to transmit and to acquire, by inheritance and other means according to the laws and customs of the people of the eastern Western Desert, native title rights and interests.

Paragraphs 20 to 28 of the application set out the factual basis upon which it was claimed that members of the Compensation Claim Group who were native title holders when the extinguishing acts were done had an association with the area. The claimed association involved spiritual, physical, historical (customary), legal, economic and social elements which were identified in paragraphs that followed.

13	Under the heading "Traditional laws and customs" the application contained, in [30] to [40], the factual basis upon which it was asserted that, at the time when the entitlement to compensation arose, there existed traditional laws and customs that gave rise to the claimed native title. Paragraph 30 referred to the fundamental concept of the Tjukurrpa in the belief system of the people of the eastern Western Desert. The Tjukurrpa is said to explain the creation of the land, evidenced by particular features of the landscape and to lay down rules or principles by which people relate to and conduct themselves in relation to land and waters and otherwise.
14	Then it was said that the indigenous laws acknowledged and customs observed by the people of the eastern Western Desert were given normative force by widespread commitment to the Tjukurrpa, the high value of the sacred among the people of the eastern Western Desert and their fear of being ostracised or otherwise punished for breach of the laws and customs. The Tjukurrpa were said to provide a framework for country through constellations of sites associated with particular Tjukurrpa.
15	Four important paragraphs of the application were [33] to [36] inclusive setting out the basis upon which the people of the eastern Western Desert were said to be recognised as holders of native title rights and interests:

33. The indigenous laws acknowledged and customs observed by the people of the eastern Western Desert include rules and principles for recognition of a person as holding rights and interests in relation to an area and as to the nature and extent of the rights and interests held by a person. The rules and principles are those referred to in paragraphs 4, 34, 35 and 36. The rights and interests are those identified in paragraph 16.

34. Under the indigenous laws acknowledged and customs observed by the people of the eastern Western Desert, a person holds rights and interests in relation to an area:

(a) as an individual if he or she fulfils at least one of the conditions set out in paragraph 4 (conditions) in relation to the area;

(b) with others, as aggregates or sets of people, where each of them fulfil at least one of the conditions in relation to the area.

35. Under the indigenous laws acknowledged and customs observed by the people of the eastern Western Desert:

(a) the nature and extent of rights and interests held by a person in relation to an area;

(b) the seniority and authority of a person who holds such rights and interests relative to other such persons,

is dependent upon the closeness of the person’s connection to the area. Closeness of connection is in turn dependent upon the nature and extent of the conditions fulfilled by the person, and on the nature and extent of the additional factors set out in paragraph 36 (additional factors) that apply to the person.

36. The additional factors are:

(a) taking responsibility for the area, including by the maintenance and protection of sacred knowledge about the area and places on it, passing on that knowledge under approved circumstances, looking after sacred objects relating to those places, being actively present at ritual engagements relating to the places, acceptance and assertion of roles of cultural heritage protection, landscape management and site custodianship;

(b) having religious, sacred, ritual, practical and historical knowledge of the area, being known by the spirits and dreamings of the area and having authority in respect of those matters, particularly in relation to a Dreaming that travels through the area or sufficiently close to it to be of significance to the area;

(c) personal identification with the linguistic identification of the area;

(d) long association with the area by occupation or use by oneself and relevant kin;

(e) generation or time depth of identification with the area and history of social interaction with others who are identified with the area; and

(f) asserting connection with the area and, if necessary, the defence of it against denials of others.

16	Paragraph 37 referred to adaptive change, over time, to the laws and customs cited in [33]. The laws and customs themselves were described in [38] and [39]. In [40] it was asserted that:

The indigenous laws acknowledged and customs observed by the native title holders when the acts of extinguishment were done were the same as were acknowledged and observed by the people of the eastern Western Desert at sovereignty, subject to adaptive change.

17

The acts giving rise to the claimed entitlement to compensation were listed in [56] of the application. It was also claimed that all existing native title rights and interests in the Application Area were extinguished or permanently rendered of no effect by a number of acts including the construction of the Connellan Airport, the grant of Crown Lease Term 256 to The Yulara Development Company Ltd, the construction of certain public works by the Water Division of the Northern Territory Government, fee simple grants and the construction of the Lasseter Highway.

Pre trial directions

18

On 19 May 2003 Sackville J made a consolidated order comprising orders originally made by O’Loughlin J on 28 November 2000 and variations by consent made successively in 2001, 2002 and 2003. His Honour directed the hearing pursuant to O 29 r 2 of the Federal Court Rules of a preliminary issue. That order was in the following terms:

4. Pursuant to Order 29 rule 2 of the Federal Court Rules and subject to any further direction by the trial judge:

a) that, subject to order 1(b) hereof, that the trial of issues relating to the liability (if any) to pay compensation under the Native Title Act 1993 (Cth) and the determination of what (if any) native title rights existed in the claim area before the alleged extinguishing acts be heard and determined separately from and before the trial of issues relating to the quantum of compensation to be awarded if such liability is established;

(b) that lay evidence as to the impact or effect of the alleged extinguishing events upon the compensation claim group shall be given at the trial of the issues relating to liability.

19	Sackville J also made directions requiring the filing of points of claim and points of response. The original direction by O’Loughlin J on 28 November 2000 on that topic required that:

On or before 30 June 2001, the Applicants are to file and serve a document setting out the facts and other matters relied on in support of the native title compensation application ("Points of Claim").

Paragraph 10 of the consolidated orders directed that:

The matters to be addressed in the Points of Claim are to include the matters identified in the schedule to this Order, where the Applicants contend those matters are relevant to establishing their claim, and any other matters the Applicants consider relevant.

There were further directions for filing points of response.

20	A schedule to the order of 28 November 2000 had set out the requirements of the points of claim. An annexure entitled "Further and Better Points of Claim and Particulars" formed part of orders made on 8 November 2001 and required additional particulars of points of claim to be filed on 24 August 2001. The original schedule required an outline of the persons on behalf of whom the native title compensation application was made, a list of the native title rights and interests which it was claimed existed at the time of each of the acts alleged to have extinguished or impaired native title, a description of the traditional laws and customs under which each of the rights and interests were possessed and an outline of the facts to be relied upon by the applicants to prove a connection with the native title compensation area at the time of each alleged extinguishing act. In addition, a list of the alleged extinguishing acts was to be provided together with the statutory basis upon which compensation was claimed and the orders sought.
21	The further and better particulars specified by the Orders of 8 November 2001 included identification of the wider body of Aboriginal people of which the applicant group was said to constitute a part together with particulars of certain of the rights and interests asserted and identification of "the rules or principles by which the people relate to the land and conduct themselves in relation to the land". Detailed particulars of matters relied upon to establish the relevant connection with the land and waters and the alleged extinguishing acts were also to be provided.
22	The last order for amendment of the particulars was made on 31 March 2006. The amendment order was made at the time judgment was delivered. By that order the appellants were granted leave to amend [B1.8] of their third further amended points of claim subject to qualifications referred to in [237]-[239] of the judgment.

The points of claim

23	The points of claim provided by the appellants were arranged in the following sections:

A1 Introduction and the Area Concerned
B1 Native Title Holders
1. Compensation Claim Group
2. Laws and Customs
` 3. Rights and Interests
4. Connection with the Land and Waters
5. Alleged Extinguishing Acts
6. Particulars of Extinguishment and Impairment

A. Connellan Airport
B. Crown Lease Term 256 (Lot 104)
C. Public works constructed on Lots 240-242
D. Fee Simple Grants – Lots 130-131, 237 and 244-247
E Grants to Power and Water Authority
F Lasseter Highway
7. Compensation
8. Orders Sought

24	The description of the native title holders in s B1 began with a general account of the people of the Western Desert [B1.2] thus:

The people of the Western Desert acknowledge and observe a body or system of indigenous laws and customs in relation to land and waters that does not identify country as aggregates of discrete bounded areas or ‘estates’. Nor do those laws and customs identify ‘clans’ or other discrete bounded territorial groupings of people. Personal choice and a level of unpredictability, negotiability and contestation are features of the indigenous laws acknowledged and customs observed by the people of the Western Desert.

25	The focus was then narrowed to the people of the eastern Western Desert. In [B1.4] it was stated:

Under the indigenous laws acknowledged and customs observed by the people of the eastern Western Desert, a person holds rights and interests in relation to an area:

(a) as an individual if he or she fulfils at least one of the conditions set out in paragraph B1.10 (conditions) in relation to the area;

(b) with others, as aggregates or sets of people, where each of them fulfil at least one of the conditions in relation to the area.

26	Paragraph B1.5 provided that the nature and extent of the rights and interests held by persons and their seniority and authority relative to others was "dependent upon the closeness of the person’s connection to the area". This was in turn dependent upon the nature and extent of the conditions fulfilled by the person and on the nature and extent of the additional factors set out in [B1.11] (additional factors) that apply to the person.
27	Paragraph B1.10 was foreshadowed in [B1.4] as setting out the criteria by which native title holders were to be identified. Paragraph B1.11 was foreshadowed in [B1.5] as stating attributes relevant to the relative seniority and authority of each native title holder.
28	Paragraph B1.6 asserted that the people of the eastern Western Desert were a society at sovereignty and continued as such today.
29	Paragraphs B1.10 and B1.11 both appeared under the subheading "Criteria for being a native title holder". They were as follows:

B1.10 The conditions are one or more of the following:

(a) having a "borning place" on or in close proximity to the area;

Particulars

A borning place is a socially recognised place of birth which may be the place where the person was born, where the baby’s umbilical cord became detached, where the placenta was buried, where ritual ‘smoking’ of the baby occurred, or the place of conception. It may not be the exact place where the event occurred but rather the closest site to the event, or even a bigger site on the same Dreaming track.

(b) having a borning place, or that of a parent or grandparent, at a place on the track of a Dreaming which travels through the area, particularly if that place is upstream along the narrative site sequence and not overly distant in geographical and mythological terms;

(c) having kin links to the area;

Particulars

People can claim interests in the places with which various of their kin have been identified, including antecedents, offspring, siblings, spouses and in-laws. For example, descent from a parent or grandparent recognised as having rights in the area because of his or her birth, knowledge or long association with the area. The more close relatives one has who are identified with an area, the stronger is the case for claiming an interest, or a particular set of interests in the area. There is some tendency for men to have a special relationship to their father’s father’s places, and for women to have a similar connection to those of their mother and mother’s mother.

(d) having close kin such as a parent or grandparent who died or was buried in the area;

(e) having given birth to a child in the area.

The latter two matters, (d) and (e), were ultimately not pursued. Save for the particulars of subpar (c) the wording of these conditions was the same as those specified in [4] of Schedule A of the application and incorporated by reference in [34(a)].

B1.11 The additional factors are:

(a) taking responsibility for the area;

Particulars

This includes the maintenance and protection of sacred knowledge about the area and places on it, passing on that knowledge under approved circumstances, looking after sacred objects relating to those places, being actively present at ritual engagements relating to the places, acceptance and assertion of roles of cultural heritage protection, landscape management and site custodianship.

(b) having religious, sacred, ritual, practical and historical knowledge of the area, being known by the spirits and dreamings of the area and having authority in respect of those matters, particularly in relation to a Dreaming that travels through the area or sufficiently close to it to be of significance to the area;

(c) personal identification with the linguistic identification of the area;

Particulars

This is not a matter of speaking the dialect with which the area is identified (though a person may speak that dialect) but of being identified with that dialect through an identification with country that is regarded as being identified with that particular linguistic variety.

(d) long association with the area by occupation or use by oneself and relevant kin;

(e) generation or time depth of identification with the area and history of social interaction with others who are identified with the area; and

(f) asserting connection with the area and, if necessary, the defence of it against denials of others.

The "additional" factors were referred to in [35] and [36] of the application.

The reasons for judgment

30	The reasons for judgment commenced with a description of the essential elements of the application and its characterisation (at [7]):

The applicants characterise the claim as a group claim, the group comprising those who are able to establish that they held native title rights and interests immediately prior to the extinguishment of those rights and interests by the compensation acts.

Sackville J observed that it was no part of the appellants’ case that the claimants themselves constituted a cohesive or discrete community. He said (at [9]):

They rely on the traditional laws and customs of the Western Desert bloc to which they say they adhere. They contend that the people of the Western Desert can be regarded as a society with traditional laws and customs that have remained intact and have been observed since sovereignty. The applicants say that those traditional laws and customs apply to the people of the eastern Western Desert, of which the Application Area forms part.

31	The evidence adduced by the appellants did not distinguish between the native title rights and interests at the date of trial and the position at any earlier date. Their preferred position was that generally speaking native title rights and interests over the Application Area were extinguished on 10 March 1994, the day that the Validation (Native Title) Act 1994 (NT) (Validation Act) came into force. If that were the relevant date any entitlement to compensation would extend to improvements erected on the Application Area before 1994, including Connellan Airport, the construction of which was completed in 1981 ([10]).
32	Under the heading "Chronology of Events" his Honour summarised major events affecting the Application Area from the date that sovereignty was acquired by the Crown until the various Compensation Acts relied upon took place. None of his treatment of the chronology is in issue in this case. He referred, in the course of the history, to the work of early anthropologists and geographers including Norman Tindale, D MacKay, Professor AP Elkin, Professor RM Berndt and his wife, Dr Catherine Berndt. He described the creation of the Ayers Rock-Mount Olga (Uluru) National Park and the development of tourism in the Park.
33	His Honour gave detailed consideration to the appellants’ case on native title as it emerged from the pleadings. The salient parts of the application and points of claim have been set out earlier in these reasons.
34	The appellants relied upon the opinion of their principal anthropological witness, Professor Peter Sutton, that the people of the eastern Western Desert do not identify country as aggregates of discrete bounded areas or estates. Professor Sutton said that groups of people associated with country could not be described as "clans" or other discrete bounded traditional groupings of people. Despite references in anthropological literature to local traditional groups or "hordes" the appellants argued, at trial, that the population of the eastern Western Desert had never been subdivided into named landholding descent-based groups [202].
35	The appellants used the expression "Ngurraritja" for the traditional owners of country. They called the term a "label" used to describe a relationship to country that could have a variety of bases. The people who were Ngurraritja for any area of the eastern Western Desert were not a group united by common descent from a particular ancestor. Nor was any country to which the Ngurraritja related to be regarded as a "neatly bounded area recognisable for all purposes as a unit of country". They also submitted that the people who belonged to the Application Area are properly called a "person-set" rather than a social group of unitary structure. The composition of the set rested upon individuals asserting one or more relevant significant forms of connection to the Application Area and the manner in which such assertions are received by others [206].
36	The appellants’ case, on his Honour’s view of it, involved the adoption of what they called, in their written submissions, "the notion of multiple and accretive factors" governing their connection of members of the claim group to country. This was a concept which they said was accepted by the Full Court in De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 (De Rose FC (No 1)). They identified in their written submissions, in closing, 11 factors as the principal bases for regarding any individual as having a strong connection to, and rights in, an area. These criteria were derived from Proposition 7, one of a number of propositions set out in Professor Sutton’s report. Proposition 7 was in the following terms:

The laws and customs of people of the eastern Western Desert include rules and principles for recognition of a person as having a strong connection to and holding rights and interests in relation to an area. Under those rules and principles the following eleven factors are the principal bases for regarding any individual as having a strong connection to and rights in an area:

(a) having a "borning place" on or in close proximity to the area;

(b) having a borning place, or that of a parent or grandparent, at a place on the track of a Dreaming which travels through the area, particularly if that place is upstream along the narrative site sequence and not overly distant in geographical and mythological terms;

(c) having kin links to the area;

(d) generation or time depth of identification with the area and history of social interaction with others who are identified with the area;

(e) personal identification with the linguistic identification of the area;

(f) having religious, sacred, ritual, practical and historical knowledge of the area, being known by the spirits and Dreamings of the area and having authority in respect of those matters, particularly in relation to a Dreaming that travels through the area or sufficiently close to it to be of significance to the area;

(g) long association with the area by occupation or use by oneself and relevant kin;

(h) taking of responsibility for the area; including involvement in the maintenance and protection of sacred knowledge about the area and places on it, passing on that knowledge under approved circumstances, looking after sacred objects relating to those places, being actively present at ritual engagements relating to the places, acceptance and assertion of roles of cultural heritage protection, landscape management and site custodianship;

(i) the assertion of connection with the area, and if necessary, the defence of it against denials of others;

(j) support for asserted connections;

(k) recorded evidence.

37	The appellants acknowledged, in their written submissions, that their reliance on these 11 "accretive factors" departed from the pleaded case. The points of claim had identified, in [B1.10], five conditions (reduced to four and later to three) the presence of at least one of which was a necessary precondition for holding rights in country. The presence of one or more of the additional factors in [B1.11] was said to activate or strengthen the extent of the rights holders’ personal authority in relation to the country. The written submissions abandoned the distinction in the application and the points of claim between "conditions" and "additional factors" [211]. They set up a multiple pathways case which was said to "make it inevitable that people of the eastern Western Desert will have associations with multiple places or areas and may actively assert and be involved in various ways in all or only some of them" [214].
38	His Honour referred to discussion in the course of closing oral argument about the variety of ways in which the appellants had formulated their criteria for the acquisition or holding of native title rights and interests under traditional laws and customs. On the approach taken in the written submissions a person who satisfied one or more of the 11 criteria in Professor Sutton’s Proposition 7 could acquire rights and interests in land although their nature and extent would depend on the number and significance of the criteria satisfied. This approach his Honour regarded as consistent with that of Professor Sutton who was of the opinion that "the capacity to assert a relationship of belonging to an area is accretive". So a person with several "bases of claim" would have a stronger case for asserting rights in land than a person with only one basis.
39	Inconsistently with the above approach, a formulation appeared in [5.119] of the appellants’ closing submissions which seemed to revert to the primacy of the first four criteria. His Honour said (at [219]):

Faced with these confusing, if not conflicting, ways of presenting the applicants’ case, Mr Basten attempted to restore order in his final oral submissions. He said that the applicants’ position is (and, he implied, always had been) that pleaded in the Points of Claim. It would seem to follow that the "additional factors" identified in [B1.11] of the Points of Claim become relevant to the applicants’ case only when a connection to land has been established by reason of a claim satisfying at least one of the four conditions in [B1.10]. In other words, the additional factors are relevant only to the ‘closeness’ of the connection to land, while the existence of a connection depends on satisfying one of the four conditions in [B1.10].

We interpolate that in the course of closing submissions before his Honour, he asked what the result would be if he concluded that a combination of two factors, borning place and kinship links associated with a borning place, were part of the core of traditional laws and customs and the rest of more recent development. After some discussion counsel for the appellants said:

... what we’re saying is that these three or four criteria are the conditions for claiming an interest in country. The additional factors give strength to the claim because of the closeness of the connection which is obviously terribly important ... when one is negotiating a decision making process on the ground, because one needs to know who speaks with the authority, and the closeness and strength of the connection will be a matter of probably the greatest importance for the traditional owners or whoever they may be – however they may be described when dealing with their own matters. And they assert things in this way.

And again:

His Honour: So the way you continue to put the case, and this is not intended as anything other than ascertaining what the position is, is that each of the people that you say are claimants and entitled to compensation can satisfy (a), (b) or (c) of proposition 7 or proposition 1, 2 and 3, as they’ve become elsewhere ...

Mr Basten: Yes.

His Honour: ... and each of them has or may have some additional factors that strengthen their claim.

Mr Basten: Yes.

His Honour: So, it’s that core of (a), (b) and (c) that is critical.

Mr Basten: Oh, yes, yes.

40

It was a matter of importance that the appellants did not invite his Honour to select one or two of the criteria identified in the points of claim as embodying the traditional laws and customs of the eastern Western Desert governing the holding of rights and interests in land. As he saw the appellants’ case it was (at [222]):

... that the traditional laws and customs of the eastern Western Desert relating to rights and interests in land are as pleaded in [B1.10] and [B1.11] of the Points of Claim.

His Honour characterised the appellants’ case as "based on the ‘package’ of ‘conditions’ and ‘additional factors’". Their approach involved a rejection of the hypothesis that the acquisition and recognition of rights and interests in land under the traditional laws and customs of the eastern Western Desert were governed by a patrilineal system of land tenure whereby a person took interests in his father’s or father’s father’s country. It involved a rejection of the hypothesis advanced by Norman Tindale and supported by other anthropologists that the people of the area historically followed a patrilineal system [223]. His Honour went on (at [224]):

The important point for present purposes is that the applicants accept that, if the evidence supports the proposition that the traditional laws and customs of the eastern Western Desert adopt a patrilineal model of land tenure, their claims cannot succeed. This is despite the fact that some members of the compensation claim groups might well be able to establish that they hold rights and interests in the Application Area in accordance with a patrilineal model of land tenure, as expounded by Tindale. Mr Basten acknowledged in final submissions that not only did the applicants not run their case in this way, but the effect of the evidence is that the indigenous witnesses do not claim rights to country on the basis of a patrilineal model.

41	Again, we interpolate that the transcript of exchanges between his Honour and counsel for the appellants bears out his characterisation of their case. Counsel disclaimed patrilineal descent as the sole way of acquiring country. However he referred to [B1.10(c)] which he described as talking "broadly of kin links".
42	His Honour discussed the composition of the Compensation Claim Group. The appellants maintained the stance for much of the trial that it was neither appropriate nor practical nor necessary to determine the native title holders entitled to compensation by reference to a definitive list of named individuals. However they retreated from that stance while maintaining that it was not necessary, assuming an entitlement to compensation was established, to identify the members of the Compensation Claim Group. His Honour followed what he described as "a somewhat twisting path" to understand the position ultimately taken by the appellants on this point [226] – [ 240]. He gave them leave to amend [B1.8] in the points of claim to substitute therein a list of 55 named persons, of whom 8 were said to have died (in each case after the compensation acts took place). The list included the unnamed children of some of the named persons [240].
43	Next his Honour considered the native title rights and interests claimed by the appellants. In their original application they asserted that the Compensation Claim Group had held native title rights and interests in the Application Area conferring upon them the possession, occupation, use and enjoyment of the land and waters in accordance with their "complex of laws, social, economic and cultural practices, customs, usages and beliefs, subject to any valid inconsistent act or grants". In their points of claim they pleaded a single comprehensive right described as:

a right as against all others to possess, occupy, use and enjoy the land and waters.

Nevertheless they accepted in their written submissions that this global expression could not have survived the grant of the first pastoral lease over the Application Area in 1882. They advanced an alternative case identifying 28 traditional rights, the existence of which they claimed were supported by the evidence [244].

44	His Honour observed that the appellants’ submissions did not devote a great deal of attention to showing that the Compensation Claim Group had a connection with the Application Area as distinct from nearby areas under the traditional laws and customs of the Western Desert. That approach he saw as reflecting Professor Sutton’s contention that the body of laws and customs observed by the people of the eastern Western Desert did not include notions of discrete bounded areas or estates nor any territorial grouping of people.
45	Both Commonwealth and Northern Territory submissions on native title were set out in some detail followed by an overview of the appellants’ evidence.
46	After reviewing the Aboriginal and anthropological evidence, his Honour rejected the contention advanced on behalf of the Commonwealth that the concept of the Western Desert bloc, in the sense of a society whose members acknowledge and observe a body of laws and customs, was an anthropological construct divorced from underlying reality. He said (at [352]):

The evidence supports the conclusion that the Western Desert bloc can be regarded as a society in that sense.

He was however careful to observe that whether members of the Compensation Claim Group had acknowledged and observed the traditional laws and customs of the Western Desert bloc, specifically those relating to native title rights and interests, was a separate question.

47	His Honour found that despite periods of interruption a small number of Aboriginal people maintained a physical association with country around Uluru-Kata Tjurta from the 1930s. The evidence also suggested that in the 50 years prior to the handback some of those people acknowledged and observed important elements of the traditional laws and customs of the Western Desert [358].
48	The Commonwealth submitted that there was a disconformity between the rules acknowledged by older witnesses in the case and the practices of younger witnesses. His Honour said (at [364]):

But any such disconformity does not demonstrate that the Western Desert society has ceased to exist, nor that the traditional laws and customs of that society have altogether ceased to exist. On the contrary, subject to the significance of patterns of migration within the Western Desert, the evidence suggests that the Western Desert bloc has existed as a society at all times since sovereignty and that there have been some members of that society who have acknowledged and observed its laws and customs in the eastern Western Desert, including the area around Uluru and Kata Tjurta.

49

His Honour was at pains to point out the limits of that finding. It did not determine the separate question whether the appellants had shown that members of the Compensation Claim Group acknowledged and observed the laws and customs relating to native title rights and interests pleaded in the points of claim. Nor did it determine whether the pleaded laws and customs were the traditional laws and customs of the Western Desert bloc. After reviewing migration patterns in the Western Desert, his Honour held that there was no doubt during the period from the 1930s to the 1980s or 1990s that some eastern Western Desert people maintained a physical association with the Uluru-Kata Tjurta area even though they might not have lived there continuously. Throughout the period there were always people who maintained their commitment to some of the traditional laws and customs of the Western Desert. This left the question whether members of the Compensation Claim Group had acknowledged and observed traditional laws and customs as required by s 223(1) of the NTA. But his Honour went on (at [378]):

But the evidence, in my opinion, provides no warrant for concluding that, by reason of patterns of migration, the Western Desert bloc, and its traditional laws and customs, ceased to exist before the compensation acts occurred.

50

His Honour then considered the further concept of the eastern Western Desert. He said that the concept of that area as a subregion of the Western Desert might not add a good deal to the case beyond identifying an area whose people were more closely linked to each other than to the people of other areas within the Western Desert. He found, at [395], that the Western Desert cultural bloc was a society that had continued in existence since sovereignty. Members of that society had maintained their acknowledgement and observance of certain traditional laws and customs of the Western Desert as applied to the eastern Western Desert, including the country on which the Application Area is located.

51

In his consideration of the laws and customs described in the evidence, his Honour referred to the lack of congruence between the pleaded case and Proposition 7 in Professor Sutton’s report. He said (at [401]):

Neither Professor Sutton’s written nor oral evidence supports the applicants’ pleaded contention that under the traditional laws and customs of the Western Desert a person must satisfy one of four specific conditions in order to acquire and hold rights and interests in country. Nor does Professor Sutton’s evidence support the concept of additional (but subordinate) factors that, of themselves, do not create a connection with country, but can determine the strength of a connection that is independently established.

His Honour found that the appellants’ submissions paid little attention to those difficulties but did point to evidence suggesting that a given person might satisfy several distinct criteria for being Ngurraritja for particular country.

52

None of the Aboriginal witnesses gave evidence that the traditional laws and customs of the Western Desert relating to rights and interests in land corresponded to the case pleaded by the appellants. The evidence suggested that having a borning place near a specific site was ordinarily enough to create rights and interests in that site. But the evidence did not support the dichotomy pleaded between "conditions" and "additional factors" relied upon in [B1.10] and [B1.11] of the points of claim. Nor did the evidence support the combination of criteria pleaded in the points of claim or, for that matter, the combination of the criteria set out in Professor Sutton’s Proposition 7.

53

His Honour came to the view that the case pleaded by the appellants insofar as it advanced conditions for the identification of native title holders and additional factors relevant to the strength of their claim to native title rights and interests, was not made out on the evidence. He was careful to say that this did not mean that an unduly rigid view should be taken of the pleadings or that any departure from them would necessarily be fatal to the case. In a key paragraph in his judgment he then said (at [446]):

However, even if a reasonably flexible interpretation of the pleadings is adopted, the applicants face very serious difficulties in making out their case. The most fundamental problem is that the evidence does not reveal a consistent pattern of observance and acknowledgment of laws and customs, or even practices, relating to rights and interests in land. Consequently, the evidence falls short of establishing the existence of a body of laws and customs relating to rights and interests in land that was acknowledged and recognised by members of the Western Desert bloc at the relevant time or times. A second major difficulty is that the evidence of virtually none of the senior Aboriginal witnesses supports the distinction between "conditions" and "additional factors" underpinning the applicants’ pleaded case.

Then (at [449]):

I reiterate that I appreciate and accept the need for some leeway in interpreting the indigenous evidence. If most witnesses gave evidence broadly compatible with the pleaded case, it perhaps would be open to disregard minority or idiosyncratic views or practices. But this is not the state of the evidence. It reflects such a variety of opinions, practices and assertions that it cannot be taken as establishing that the indigenous witnesses or members of the compensation claim group observed and acknowledged at the relevant times laws and customs of the Western Desert bloc as pleaded in the Points of Claim.

His Honour then said (at [450]):

At the risk of repetition, I stress that I was not invited to pick and choose among the laws and customs relied on by the applicants. I should also observe that my finding does not necessarily imply that none of the indigenous witnesses is ngurraritja for sites in the Uluru-Kata Tjurta area under laws and customs currently observed and acknowledged by them. My finding is that the applicants have not made out the particular case on law and custom that they have chosen to plead and to press in their final submissions.
(Emphasis in original)

54

Having regard to his primary conclusion his Honour said it was not strictly necessary to consider whether the appellants had established that any laws and customs acknowledged and observed by members of the Compensation Claim Group were "traditional" in the sense required by s 223(1) of the NTA. Consideration of that question was not without difficulty as the gaps and inconsistencies in the evidence made it difficult to identify a particular body of laws and customs in order to determine whether they were "traditional" [452]. After reviewing the evidence, and in particular the evidence of the anthropologists and the published work of researchers who had studied the people of the Western Desert, his Honour found it pointed clearly to a particular conclusion. He expressed that conclusion thus (at [497]):

... under the traditional laws and customs (understanding that expression in the sense required by Yorta Yorta (HC)) of the Western Desert bloc:

. the landholding units comprised small local groups;

. each group consisted of people principally recruited or united on the basis of common patrilineal descent; and
. members of the group had rights and interests (to use the language of the NTA) on a particular site or a particular cluster of sites connected with the Tjukurrpa.

The evidence, although more equivocal on the point, tends to suggest that the traditional laws and customs of the Western Desert also recognised that in certain circumstances a person could become a member of the local group by being born at a place of significance to the group, at least where the person’s claim was acknowledged and accepted by other members of the group.

These findings, his Honour observed, were inconsistent with the appellants’ case which repudiated patrilineal descent as a key element in the acquisition of rights and interest in land under traditional laws and customs. The appellants had also rejected the concept of "discrete bounded areas or ‘estates’" and had asserted that "unpredictability, negotiability and contestation", were features of the laws acknowledged and customs observed by the people of the eastern Western Desert.

55	Even if he had not made these findings as to the content of traditional laws and customs, his Honour would not have been satisfied that any laws and customs relating to rights and interests in the land that might have been acknowledged and observed by the Aboriginal witnesses were the traditional laws and customs of the Western Desert [502]. In the result, the evidence was, in his Honour’s opinion, "simply insufficient" to conclude that the laws and customs pleaded by the appellants, to the extent that they were acknowledged and observed by the Aboriginal witnesses at relevant times, were the traditional laws and customs of the Western Desert [507].
56	His Honour dealt with two subsidiary issues. The first question related to the clearance of the town site by the Ayers Rock Advisory Committee in 1974 which had included as an Aboriginal representative, Mr Yami Lester, and had invited to some of its meetings Mr Paddy Uluru and other Aboriginal people involved with the Ayers Rock area. The second question related to a track and site in the Application Area said to be of particular significance. As to the first question, the site clearance was not an obstacle to the appellants’ claim. On the other hand, his Honour was not satisfied that the site now known as Kata-Tjurta, within the Application Area, was of spiritual significance to Aboriginal women as claimed.
57	His Honour then considered the effect of the grants of pastoral leases in 1882 and 1896 on native title in the area. The appellants accepted that any native title rights to control, exclusively, the use of or access to the Application Area would have been extinguished by the grant of the pastoral leases. His Honour concluded that any native title rights to make decisions about the use or enjoyment of the Application Area by Aboriginal people governed by the traditional laws and customs of the Western Desert bloc were not extinguished by those leases [571].
58	His Honour set out his conclusions (at [789]):

On my findings, the applicants have not succeeded on the threshold issue, for two independent reasons:

. first, the applicants have not shown, on the evidence, that the indigenous witnesses, or members of the compensation claim group, acknowledged and observed at the relevant times the laws and customs of the Western Desert bloc as pleaded in the Points of Claim; and
. second, I am not satisfied that any laws and customs relating to rights and interests in land that may have been acknowledged and observed by the Aboriginal witnesses are the traditional laws and customs of the Western Desert bloc, within the meaning of s 223(1) of the NTA.

His Honour further said (at [791]):

I emphasise, as I have elsewhere in this judgment, that I have addressed the compensation case the applicants have chosen to put forward. My conclusions do not necessarily imply that none of the applicants or members of the compensation claim group could have established an entitlement to native title rights and interests over the Yulara block had the case been conducted differently. However, I am not entitled to consider some alternative or different case that the applicants perhaps might have advanced in the light of the anthropological literature and the evidence of indigenous witnesses. Indeed I was not asked to do so.

His Honour emphasised that the comment was not intended as a criticism of the way in which the case was presented. He acknowledged that there might have been very good reasons why the appellants chose to proceed in the manner that they had. Nevertheless they were bound by the conduct of their case [792].

59	The Commonwealth had made an alternative contention to Sackville J which his Honour also addressed. It required him first to refer to the tenure history of the Application Area. The reasons for judgment set out the tenure history of the Application Area from 1976. This included the proclamation of the Yulara town site on 29 July 1976. Importantly, on 27 April 1981, the relevant Territory Minister gave notice of a determination under s 15(2) of the Crown Lands Act 1931 (NT) to grant a fee simple estate to the Territory over Crown land comprising an area of 495.9 hectares being Lot 101 in the town site. The grant was made for the purpose of development of an airport. An estate in fee simple was granted in September 1981. It was made under s 14 of the Crown Lands Act and was registered under the Real Property Act 1886 (SA) (Real Property Act) on 10 September 1981. Lot 101 is now the site of Connellan Airport. Considerable discussion followed on issues of extinguishment.
60	The question relevant for the Commonwealth’s notice of contention in the appeal is his Honour’s discussion of the submission advanced by the Commonwealth that, even though original grants in fee simple over Crown land within the Application Area were invalid when made because of s 10(1) of the Racial Discrimination Act 1975 (Cth), registration of the fee simple estates referred to in [59] under the Real Property Act validly extinguished any surviving native title rights and interests over each of the lots concerned. On the basis that those estates had been validly extinguished before the NTA came into force, the appellants, according to the Commonwealth, would not be entitled to any compensation under the NTA for the loss of their rights and interests. His Honour rejected this submission having regard to the operation of s 10(1) of the Racial Discrimination Act [784].
61	However, he also rejected the appellants’ submission that any entitlement to compensation under the NTA arose only on 10 March 1994, the date that the Validation Act commenced. Any right to compensation in respect of the extinguishment of native title rights and interests arose under s 23J of the NTA, not s 20. On the correct construction of s 23J, when read in conjunction with ss 9H and 9J of the Validation Act, the entitlement to compensation was taken to have arisen at the time the extinguishment acts were done or, in the case of public works, when the construction or establishment of the particular public work began. If the Compensation Claim Group were entitled to compensation for the extinguishment of native title rights and interests the quantum would be assessed without reference to any improvements on the land, the construction of which post-dated the relevant extinguishing acts or events [785].

The grounds of appeal

62	Following a preamble setting out "circumstances" and findings made by the primary judge, it was alleged in the notice of appeal that his Honour erred in the following ways:

A not asking whether members of the compensation claim group acknowledged and observed traditional laws and customs of the Western Desert under which rights and interests in land and waters are possessed;

B asking whether the members of the compensation claim group acknowledged and observed the laws and customs formulated in the applicants’ points of claim and whether those pleaded laws and customs are the traditional laws and customs of the Western Desert under which rights and interests in land and waters are possessed;

C holding that in order to establish that members of the compensation claim group acknowledge and observe a body of traditional laws and customs under which rights and interests in land and waters are possessed it was necessary that the evidence of Aboriginal witnesses establish a dichotomy between the conditions and additional factors referred to at (1)(b);

D. holding that for the purposes of the native title rights and interests claimed to have existed before the time of extinguishment of the native title and s 223(1)(a) of the Native Title Act the traditional laws and customs of the Western Desert under which rights and interests of eastern Western Desert people in relation to the application area were possessed were those laws and customs by which a member of that society is recognised as ngurraritja for sites;

E not holding that members of the compensation claim group acknowledged and observed traditional laws and customs of the Western Desert under which rights and interests in land and waters are possessed;

F not determining whether, members of the compensation claim group possessed, under the traditional laws and customs of the Western Desert acknowledged and observed by them, rights and interests in relation to the Application Area.

2. ...

A not holding that the laws and customs formulated in the points of claim referred to at (1) were traditional laws and customs of the Western Desert;

B not holding that the anthropological expert opinion evidence established that there had been a continuity in the laws and customs acknowledged and observed by members of the compensation claim group and their predecessors, as traditional laws and customs of the Western Desert since the acquisition of sovereignty;

C holding that the laws and customs formulated in the points of claim referred to at (1) were a repudiation or virtual abandonment of the traditional laws and customs of the Western Desert and could not be characterised as laws and customs contemplated by or as adaptations of the traditional laws and customs of the Western Desert;

D not holding that members of the compensation claim group acknowledged and observed traditional laws and customs of the Western Desert under which rights and interests in land and waters are possessed;

E holding that the manner in which the application had been pleaded precluded a determination of who were the persons holding the rights and interests in relation to the application area comprising the native title before extinguishment of the native title;

F dismissing the application and in not determining, as he was required to do by ss 13(2), 51(1), 94-94A and 225 of the Native Title Act, who were the persons holding the rights and interests in relation to the application area comprising the native title before extinguishment of the native title.

63

The orders sought were that the appeal be allowed, the dismissal order be set aside and that the matter be remitted to the primary judge for further determination of the native title rights and interests that existed in relation to the Application Area before their extinguishment consistent with the reasons of this Court. It was also proposed that subject to any further order of the primary judge, the remitted proceedings be limited to a reassessment of the existing evidence.

The notice of contention

64	The Commonwealth sought, by notice of contention, to support the judgment on the following grounds not relied upon by the trial judge:

1. No liability to compensation arose under the Native Title Act 1993 (Cth) for the reason that any native title rights and interests in relation to the area covered by the compensation application ("the application area") were validly extinguished prior to the enactment of the Native Title Act 1993 (Cth):

1.1 by the registration of estates in fee simple under the Real Property Act 1886 over the whole of the compensation area with the exception of the Lasseter Highway; and
1.2 by the construction of the Lasseter Highway being a 100m wide road reserve set out in the Survey Plans S92/58B and C.

2. In the alternative to (1) above, no liability to compensation arose under the Native Title Act 1993 with respect to the areas on which the public works listed below were situated for the reason that any native title rights and interests in relation to those areas were validly extinguished by the construction and establishment of public works prior to the enactment of the Native Title Act 1993 (Cth), namely:

2.1 the construction of Connellan Airport on Lot 101;

2.2 the construction of bores by the Power and Water Authority on Lots 240-242; and
2.3 the construction or establishment of the Lasseter Highway and other roads within the application area.

It only pursued ground 1.1 of the Notice.

The issues for determination on the appeal

65	The appellants, in their written submissions, said there were essentially two points to the appeal. They were:

1. The trial judge misread their pleaded case.

2. Quite apart from the pleadings, having found that there were some members of the Compensation Claim Group who held or may have held native title rights and interests over the claim area, he was obliged by ss 51(1) and 94 of the NTA, or at least by the terms of the separate question before him, to determine the persons who held those rights and interests.
The statutory framework

66

The NTA makes provision for compensation to be paid for acts affecting native title. These include statutorily validated past and intermediate past acts which would otherwise have been invalid because of their effect on native title (Div 2 and 2A of Pt 2 of the NTA). Compensation is also payable in respect of certain "future acts" affecting native title (Pt 2, Div 3). The definitions of "past" and "future" acts are not material for present purposes nor the particular circumstances in which compensation is payable or the nature of such compensation.

67

Division 5 of Pt 2 of the NTA provides exhaustively for the general process for the determination of compensation for acts affecting native title. Section 48 provides:

Compensation payable under Division 2, 2A, 2B, 3 or 4 in relation to an act is only payable in accordance with this Division.

68	Section 50 provides:

(1) A determination of the compensation may only be made in accordance with this Division.

(2) An application may be made to the Federal Court under Part 3 for a determination of the compensation.

(3) Nothing in this Division affects:

(a) any jurisdiction of a court, person or body to hear appeals against, to review or otherwise to affect, a determination of compensation made in accordance with this Division; or

(b) the jurisdiction of the High Court.

69	Section 51 sets out the criteria for determining compensation.
70	Part 3 of the Act deals with applications, including applications for compensation. Section 61, which is found in Div 1 of Pt 3, sets out in tabular form the classes of applications that may be made. In the relevant parts it provides:

Native Title and compensation applications

Applications that may be made

(1) The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

...

Kind of application	Application	Person who may make application
Compensation application	Application under subsection 50(2) for a determination of compensation.	(1) The registered native title body corporate (if any); or (2) A person or persons authorised by all the persons (the compensation claim group) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group. Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the compensation claim group.

Applicant in case of applications, authorised by claim groups

(2) In the case of:

...

(b) a compensation application made by a person or persons authorised to make the application by a compensation claim group;

the following apply:

(c) the person is, or the persons are jointly, the applicant; and
(d) none of the other members of the native title claim group or compensation claim group is the applicant.

Applicant’s name and address

(3) An application must state the name and address for service of the person who is, or the persons who are, the applicant.

Applications authorised by persons

(4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

(a) name the persons; or

(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Form etc

(5) An application must:

(a) be in the prescribed form; and
(b) be filed in the Federal Court; and
(c) contain such information in relation to the matters sought to be determined as is prescribed; and
(d) be accompanied by any prescribed documents and any prescribed fee.

71	Section 62 sets out the information to be contained in applications. In the case of compensation applications it provides:

(3) In the case of a compensation application whose making was authorised by a compensation claim group, the application:

...

(b) must contain the details that would be required to be specified by paragraph (1)(b), and may contain the details that would be permitted under paragraph (1)(c), if the compensation application were instead a native title determination application in respect of the native title involved in the compensation application.

Paragraph (1)(b) requires that a claimant application contain details specified in s 62(2). Those details, relevantly for present purposes, include:

(d) a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

(e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and
(ii) there exist traditional laws and customs that give rise to the claimed native title; and
(iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

(f) if the native title claim group currently carry on any activities in relation to the land or waters – details of those activities;

72	Details that may be included in both a native title determination application and a compensation application are set out in s 62(1)(c):

may contain details of:

(i) if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application – that traditional physical connection; or
(ii) if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application – the circumstances in which the access was prevented.

73	Division 3 of Pt 5 contains two sections, 94 and 94A which provide:

94 Order that compensation is payable

If the Federal Court makes an order that compensation is payable, the order must set out:

(a) the name of the person or persons entitled to the compensation or the method for determining the person or persons; and

(b) the method (if any) for determining the amount or kind of compensation to be given to each person; and

(c) the method for determining any dispute regarding the entitlement of a person to an amount of the compensation.

94A Order containing determination of native title

An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).

74	In connection with the preceding provision, reference should also be made to s 13(2) which provides:

If:

(a) the Federal Court is making a determination of compensation in accordance with Division 5; and

(b) an approved determination of native title has not previously been made in relation to the whole or part of the area concerned;

the Federal Court must also make a current determination of native title in relation to the whole or part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made.

The native title process, applications, pleadings and points of claim

75

There is no express requirement in the NTA for the filing of pleadings in the usual sense of a statement of claim or defence. The Federal Court Rules make provision in O 78 for Native Title Proceedings. There is a general power in the Court to "give directions and make the orders it considers appropriate in relation to the application": O 78 r 5(3). Under that power the Court can require an applicant to file a statement of claim and respondents to file defences. However, the Court has frequently ordered the filing of a somewhat less formal document designated "Points of Claim". This may include contentions of fact and law set out in a less elaborate fashion than a statement of claim. Subject to specific directions as to form, points of claim may fall within the term "pleading" which is not exhaustively defined in the Rules: see O 1 r 4.

76

Whether or not strictly a "pleading" the essential function of points of claim, as with a statement of claim, is to define the case being advanced by the applicant. In the case of native title proceedings, where the original application complies with the requirements of s 62, the essentials of the case should have been disclosed in the application. Points of claim may be ordered to provide greater particularity. To the extent that they define the nature and basis of the applicant’s claims they will limit the range of matters that can be put before the Court by way of evidence and argument. As with pleadings or particulars, amendment may be made from time to time subject to the availability of appropriate measures to avoid unfair prejudice to the party facing the amended case. So a late amendment may be allowed if:

(a) it allows additional or different findings to be made based on the evidence which has been called without requiring additional evidence from any party or any additional cross-examination of witnesses previously called;
(b) it requires some additional evidence or recall of witnesses for additional cross-examination in a way that is practicable and does not unduly delay the completion of the hearing;
(c) in any event, appropriate directions can be given to eliminate any unfair prejudice which would be suffered by other parties to the proceedings in the absence of such directions.

77	In the present case the basic requirement that an application and points of claim disclose the applicants’ case to the respondents was not in issue. The appellants, in their written submissions, accepted the necessity:

... that pleadings state with sufficient clarity the case that must be met so as to serve the basic requirement of procedural fairness and, incidentally, define the issues to be decided.

They argued however that where, as in this case, the directions for the filing of points of claim required them "to address a host of specified matters" such a document might take the form of contentions or submissions not confined by O 11. To call such a document a pleading would be a misnomer.

78

The term "pleading" is not as important as the function it describes. In England the word "pleadings", used as a noun, has been dropped from the Civil Procedure Rules 1998 and replaced by the term "Statement of Case Defining the Issues". This embraces the originating claim form, particulars of claim, defence, reply and "further information": CPR 2.3(1). The underlying principle common to the English and the Australian system is well stated in Andrews N, English Civil Procedure – Fundamentals of the New Civil Justice System (Oxford University Press, 2003) at 10.55:

A fair and efficient system of procedure must prescribe clear rules governing the definition of the case or dispute (in Roman law known as ‘litis contestatio’). This area of procedure interacts with at least five procedural principles:

due notice;
protection against spurious claims and defences;
pre-trial disclosure;
promotion of settlement; and
finality.

79	Taxonomy is not so significant in the present case as procedural fairness and, to a lesser degree, finality. The questions which arise here are:

1. whether the appellants defined their case in a particular and limited way when the application and points of claim were taken together?
2. whether the trial judge correctly understood the way in which they defined and limited their case and decided it accordingly?
3. whether it was open to the trial judge and whether he was obliged to decide the case on some basis other than that advanced in the application and points of claim?

80	The appellants made a general submission that:

The intersection of indigenous and common law systems requires adjustment of ingrained habits that might expect the translation of the spiritual into the legal to be catalogued with the precision of a pleader operating under the Rules of Pleading of the Hilary term 1834.

This submission, with respect, is a caricature of the problem raised by their appeal. The question is not one of technicality but principally of practical fairness between the parties and finality in the litigation. It does not turn on fine distinctions drawn out of the language of the points of claim. It may be accepted that indigenous law and custom will not in all cases be susceptible to precise and concise expression in an application of points of claim. The matter is one of substance and not of form.

81	There is another dimension to the appellants’ arguments. Their submissions seem at some points to suggest that there is something sui generis about the Court’s function in hearing a native title determination or compensation application:

Subject to the requirements of procedural fairness, whether or not the evidence fits the pleaded case neatly, if the Court is satisfied that native title did exist or may well have existed, it should proceed to determine who held native title and what were the native title rights and interests. To limit the inquiry to laws and customs in the terms formulated on a pleading or points of claim is to divert attention from the inquiry directed by the statute.

82	The function of the Court in a compensation application is ascertained by considering the relevant provisions of the NTA. Section 61 includes compensation applications made under s 50(2) of the NTA in the class of applications which can be made to the Court. In respect of the "native title involved in the compensation application" the application must contain the details that would be required by s 62(1)(b) in respect of a native title determination application. These are specified in s 62(2)(d), (e) and (f). Details which may be included are those in s 62(1)(c). In substance this means that the applicants for compensation must set out the native title rights and interests whose extinguishment or impairment is said to have given rise to a right to compensation. They must also set out a general description of the factual basis on which it is asserted that those claimed rights and interests existed and if they currently carry on any activities in relation to the land or waters, details of those activities. It is important to observe that these requirements do not limit the power of the Court to direct particularisation of the claim so that the case is more precisely defined and limited for the purpose of the proceedings.
83	What the Court is then required to decide in a case such as the present, is whether the right to compensation which is claimed is made out. That requires the antecedent determination whether there were in existence at some relevant time native title rights and interests whose extinguishment or impairment has given rise to the compensation right. It is for the applicants to assert and identify the native title rights and interests and the factual basis upon which they rest as part of their case for compensation. It is for the Court to determine whether those assertions are established.
84	The Court cannot, in hearing a native title determination application or a compensation application, conduct a roving inquiry into whether anybody, and if so who, held any and if so what native title rights and interests in the land and waters under consideration. Such an inquiry is an administrative rather than judicial function. Indeed recent amendments to the NTA allow such inquiries to be carried out under certain circumstances by the National Native Title Tribunal: Native Title Amendment Act 2007 (Cth).
85	It is true, as the appellants point out, that a native title determination is a judgment in rem which binds the whole world so that the issues at stake are not confined to the private interests of litigants. But that characterisation does not alter the judicial function of the Court. In a judgment in rem the Court determines rights as against the whole world rather than inter partes. The disputed existence of such rights is a controversy of a kind squarely within the concept of "matter" which lies at the heart of federal jurisdiction. The Court exercising jurisdiction in such a case is authorised to adjudicate the matter before it and not to embark upon an inquiry into issues which are not raised for its determination.

Whether the primary judge misunderstood the appellants’ pleaded case

86

The appellants submitted that the primary judge proceeded on a mistaken premise and a misreading of their case. He did so, they said, by assuming that the link between the pleaded laws and customs and the traditional laws and customs of the Western Desert depended upon identifying laws and customs on local territorial land holding organisation. Having found that:

1. the peoples of the Western Desert had existed at the time of sovereignty and continued to exist, as a society united in and by its acknowledgment and observance of a body of law and customs;
2. Eastern Western Desert people maintained an association with the Uluru-Kata Tjuta area, and maintained a commitment to some of the traditional laws and customs of the Western Desert;
3. the indigenous evidence supported findings that under the laws and customs of the Western Desert rights were acquired by patrilineal descent or by having a borning place of significance,

his inquiries into what persons were Ngurraritja or traditional owners, and what groupings of persons comprised land owner units, were both misplaced and unnecessary. These, according to the appellants, were inquiries into the local organisation of the wider community or society and whether a subset of the society is itself a cohesive and discrete community.

87	More specifically, in relation to the pleadings, the appellants said that his Honour’s conclusion that their case failed because the evidence did not support a "dichotomy" between or "combination" of the pleaded "conditions" and "additional factors" reflected a fundamental misreading of the pleaded case. That case, it was said, made plain that rights were held if a person satisfied "at least one" of the pleaded conditions. The additional factors went to relations among members of the claim group or what might be called the "intra mural" workings of the group.
88	There is no doubt in our opinion that both the application in [4] and the points of claim in [B1.10] identified conditions at least one of which was necessary and any of which was sufficient to identify a person as a native title holder according to the traditional laws and customs of the Compensation Claim Group at the relevant time. The additional factors set out in [B1.11] were not propounded as criteria for the identification of a person as a native title holder. They were formulated as relevant to the nature and extent of the rights and interests attributable to particular persons and their seniority and authority relevant to others.
89	The points of claim reflected the application in making the above mentioned dichotomy. Although the closing written submissions departed from it in the way they relied upon Professor Sutton’s evidence, counsel for the appellants, in oral argument before his Honour, came back to the case as set out in the originating process and the points of claim. His Honour did not misread or misunderstand the case. On this aspect of the appeal, the appellants cannot succeed.

Whether the trial judge should have made findings outside the pleaded case

90	The appellants submitted that his Honour found a patrilineal emphasis for the acquisition of rights in land under the traditional laws and customs of the Western Desert and that significance attached to a borning place. They submitted that these findings "made good a case consistent with part of the appellants’ pleaded criteria relating to borning and kin links". It was said that these findings suggested that the appellants had made out a case consistent with the criteria formulated on the points of claim that some members of the Compensation Claim Group held rights and interests in the claim area under what the primary judge considered to be the relevant traditional laws and customs of the Western Desert.
91	The appellants contended that having regard to the terms of the order for separate questions and ss 51(1) and 94 of the NTA and in view of the approach endorsed by the Full Court in De Rose v South Australia (No 2) 145 FCR 302, his Honour ought to have proceeded to determine what persons held the common or group rights comprising the native title by giving effect to his findings on the criteria for acquiring rights in land under the traditional laws and customs of the Western Desert.
92	As has been pointed out earlier, the NTA does not mandate the approach proposed by the appellants. It would have been inconsistent with the case presented by the appellants and which the respondents were prepared to meet. Had the approach now proposed been put forward in the original application or points of claim, as the respondents submit, other lines of cross-examination might well have been adopted and additional anthropological evidence might have been called. His Honour was entirely correct in making his decision within the framework of the case presented by the appellants. In so doing it must be emphasised that he recognised that an unduly rigid view should not be taken of the pleadings. In any event there was a more fundamental difficulty expressed by his Honour at [449]. The state of the evidence before him reflected:

... such a variety of opinions, practices and assertions that it cannot be taken as establishing that the indigenous witnesses or members of the compensation claim group observed and acknowledged at the relevant time laws and customs of the Western Desert bloc as pleaded in the Points of Claim.

93	On the second point, the appellants do not succeed.

The Commonwealth’s notice of contention

94	Our dismissal of the appeal makes it strictly unnecessary to deal with the Commonwealth’s notice. Nonetheless we consider it appropriate to indicate shortly our conclusions on it. The particular contention pressed on the appeal was that no liability to compensate arose under the NTA in relation to the area covered by the compensation application. The reason given for there being no such liability is that any native title rights in relation to the compensation area were extinguished, prior to the enactment of the NTA, by the registration under the Real Property Act 1886 (SA) of estates in fee simple relating to that area. That extinguishment was a consequence of the provisions of s 69 of the Real Property Act which, for present purposes, make the title of a registered proprietor "absolute and indefeasible".
95	As we understand it, not all of the fee simple grants made relating to the Application Area are the subject of this notice of contention. Those that are not, involved grants relating to sites on which public works were constructed and established. The potential liability to pay compensation for the extinguishment of native title rights and interests by reason of those public works was originally contested in the notice of contention. It has now been abandoned.
96	The Commonwealth has conceded that, in consequence of the decision of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [439]- [441], the various presently relevant grants of fee simple estates were invalid by reason of inconsistency with s 10(1) of the Racial Discrimination Act. The Commonwealth’s focus, as the above contention indicates, is on the effect of the registration of the grants notwithstanding their invalidity.
97	In support of its contention the Commonwealth made alternative submissions. Notwithstanding that the grants were invalidated under the Racial Discrimination Act by reason of the existence of native title, it is said (i) there is no entitlement to compensation where a later valid act (i.e. registration) has extinguished native title "otherwise than under this Act" (or the Validation Act): s 23J of the NTA; or (ii) even if the NTA (or the Validation Act) confirmed the past extinguishment of native title, compensation for that extinguishment is limited to the periods from the invalid Crown grants up to their respective registration under the Real Property Act at which times native title was validly extinguished otherwise than under the NTA (or the Validation Act). These submissions presuppose, contrary to the primary judge’s conclusion, that the indefeasibility provisions of the Real Property Act as they apply to a fee simple grant of Crown land do not have a discriminatory impact on unregistered native title rights and interests in relation to Crown land in the Territory and so are not inconsistent with s 10(1) of the Racial Discrimination Act.
98	The answer to these submissions lies in the text, structure and purpose of Div 2 and 2B of Pt 2 of the NTA and in the complementary provisions of the Northern Territory’s Validation Act, both statutes for present purposes confirming the extinguishment of native title rights and interests by "previous exclusive possession acts".
99	The Commonwealth has conceded that the grants of fee simple estates in issue in this appeal were previous exclusive possession acts (as was found by his Honour); that those acts were attributable to the Northern Territory for the purposes of the Validation Act; and that, if compensation was payable for extinguishment of native title rights and interests, it was payable by the Territory.
100	For present purposes a "previous exclusive possession act" is defined in s 23B(2) to be an act which (i) is valid (including because of Div 2 of Pt 2); (ii) took place before 23 December 1996; and (iii) consisted of the granting of a freehold estate. The fee simple grants in this matter, though inconsistent with the Racial Discrimination Act, were validated by s 4 of the Validation Act (that Territory Act being authorised by s 19 of Div 2 of Pt 2 of the NTA). Hence for the purposes of the definition they were "valid" acts: see Western Australia v Ward 213 CLR at [135] and [138]. They also satisfied the other requirements of the definition noted above.
101	For ease in exposition reference will be made primarily to the provisions of the NTA alone as they relate to previous exclusive possession acts of the Commonwealth, though we note that like provisions apply to such acts of the Northern Territory by virtue of the Validation Act: see Pt 3B of that Act and ss 23A(4) and 23E of the NTA.
102	Section 23C(1) of the NTA attributes the following two effects to previous exclusive possession act:

(a) the act extinguishes any native title in relation to the land or waters covered by the freehold estate ...

and

(b) the extinguishment is taken to have happened when the act was done: (Emphasis added)

103	We would again emphasise that the respective "acts" were done when the various fee simple grants were made by the Northern Territory.
104	Provision is made for compensation for extinguishment by a previous exclusive possession act in s 23J of the NTA. It provides, insofar as presently relevant, that:

Entitlement

(1) The native title holders are entitled to compensation in accordance with Division 5 for any extinguishment under this Division of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act.

...

State and Territory acts

(3) If the act is attributable to a State or Territory, the compensation is payable by the State or Territory.

105	Significantly for present purposes Gaudron, Gummow and Hayne JJ in Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401 at [51] observed of this provision:

Sub-section (1) of s 23J has the effect of conferring upon native title holders an entitlement to compensation only where the statutory extinguishment exceeds the extinguishment that would have occurred at common law. The evident purpose of s 23J is to limit, so far as possible, the entitlement to compensation under s 23J, to cases where the ‘act’ is invalid by reason of the Racial Discrimination Act 1975 (Cth) (the RDA) and is subsequently validated by s 14 of the NTA or s8 of the [Validation]Act.
(Emphasis added)

106	The entitlement to compensation under s 23J is an entitlement "on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests": s 51(1). That compensation is to be assessed at the date at which the various invalid grants were made, as his Honour found and the Commonwealth here accepts.
107	The essence of the Commonwealth’s first submission is that as registration under the Real Property Act was itself wholly valid and was effective to extinguish native title rights, it in effect "superseded" the earlier invalid act. At the time of registration the Validation Act had not been passed. At the time when validation occurred under that Act there was nothing further to extinguish.
108	This submission, in our view, ignores the clear language of s 23C(1) of the NTA (and s 9H(1) of the Validation Act).
109	As was observed in the joint judgment in Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 455:

Section 19 of the Native Title Act does not purport to deny the overriding effect of the Racial Discrimination Act upon any inconsistent law of a State in the past. Section 19 removes any invalidating inconsistency between, on the one hand, a State law enacted in the future that purports to validate past acts attributable to a State and, on the other, the Racial Discrimination Act or any other law of the Commonwealth (including the Native Title Act itself). The validation of past acts attributable to a State is effected by a State law which, at the time of its enactment, is not subject to an overriding law of the Commonwealth. The force and effect of a past act ... is recognised only from and by reason of the enactment of the future State law but, from that time onwards, the force and effect of the past act is determined by the terms of the State law enacted in conformity with s 19.
(Emphasis added)

110	The Validation Act of 1994 provided in terms mirroring those of s 23C above, that the relevant previous exclusive possession acts (i.e. the making of the various fee simple grants) extinguished any native rights in relation to the lands covered by the freehold estate: s 9H(1); and that that extinguishment "is taken to have happened when the act was done" (i.e. on various dates between September 1981 and June 1992): s 9H(2): see Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 at [43].
111	In the scheme of the Real Property Act, the making of the grants predated the registration of the grantees’ certificates of title: see Real Property Act ss 25 and 50. Whatever may have been the consequence of registration on native title rights and interests at the time of registration by virtue of the indefeasibility provisions, on and from the enactment of the Validation Act, those rights and interests were taken for the purposes of NTA to have already been extinguished "completely": see s 23A(2); by the anterior previous exclusive possession acts of the Northern Territory, i.e. by the making of the grants: see Fejo v Northern Territory 195 CLR at [43]. Nothing in the NTA provided for, or warranted, the undoing of that complete extinguishment. In other words, registration may have had effects as a matter of State law (assuming both the registration was itself effective: see below; and that its effects were not in the circumstances inconsistent with the Racial Discrimination Act). What registration did not do is affect in any way an entitlement to compensation under the NTA given by s 23J. For its purposes, notwithstanding the later registration of the grants, the native title rights and interests in the lands granted would not have been extinguished "otherwise than under this Act".
112	The construction we have placed on s 23C of the NTA and on its complementary provision in s 9H(1) of the Validation Act requires rejection as well of the Commonwealth’s alternative submission which would have admitted an entitlement to compensation for the period between the making of a grant and the later registration of a certificate of title.
113	Lest it be thought that the distinction we have drawn between the making of a grant in fee and its subsequent registration is an unduly fine one, it is not only one that inheres in the scheme of the Real Property Act it also is the very distinction the Commonwealth seeks to rely upon to secure an effect from registration which could not be secured from the Crown grants themselves because of the Racial Discrimination Act.
114	By way of footnote it should be observed that if registration of fee simple estates granted by the Crown had the effect ascribed to it by the Commonwealth, it would for practical purposes seriously compromise the compensation entitlement of s 23J of the NTA. The reason for this relates to the reach of the Torrens system in the laws of the States and Territories. As Whalan DJ observed in The Torrens System in Australia (Sydney, Law Book Co, 1982)(at 47):

From the inception of the Torrens system in all eight jurisdictions, all lands alienated in fee from the Crown automatically and compulsorily came, and come, under the Torrens system.

In consequence, from the adoption of the Torrens system in the States (in the nineteenth century) and Territories (from their inception), it was to be envisaged that grants in fee simple of unalienated Crown lands would be followed by registration with all the protections and advantages this would give to the title of the registered proprietor (including that of indefeasibility of title).

115	Our conclusion makes it unnecessary to consider his Honour’s Racial Discrimination Act reasons for rejecting the Commonwealth’s submissions on the efficacy of the indefeasibility provisions in extinguishing native title rights and interests.
116	In addition to making submissions which reflect both our own and his Honour’s conclusions, the appellants have advanced several other bases for rejecting the Commonwealth’s contention. We mention one of these because it was placed at the forefront of their submissions on appeal. It is that the Real Property Act does not apply to grants in fee simple rendered invalid by force of s 10(1) of the Racial Discrimination Act. This submission is founded on s 26 of the Real Property Act which was in force in the Northern Territory when the relevant grants were made.
117	The section provides:

LAND ON ALIENATION FROM CROWN TO BE UNDER ACT

As to land hereafter alienated in fee from the Crown, the same shall, immediately on alienation, be subject to the provisions of this Act.

Put in short form the submission is that the Real Property Act does not apply to land that has not been validly alienated. Neither does it purport to make valid an interest (as distinct from an instrument: Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR at 33-34) which by legislation is invalid. There being no statutory authority for the grants made – the Racial Discrimination Act had rendered inoperative the authority under the Crown Lands Act 1931 (NT) and its successor, the Crown Lands Act 1992 (NT) – the land the subject of the grants, not having been alienated, were not subject to the provisions of the Real Property Act: s 26.

118	There is a deceptive simplicity in this submission. Whatever may be the position as between the Northern Territory and the various grantees in consequence of the registration of certificates of title in respect of the invalid grants, it is arguable that that registration may, for some purposes at least, make the lands in question subject to the provisions of the Real Property Act as, for example, where the registered proprietor transfers the title to a bona fide purchaser for value: see Assets Company Ltd v Mere Roihi [1905] AC 176; Baalman J, The Torrens System in New South Wales, 46 (2nd ed), (Sydney, Law Book Co, 1994)); Whalan, at 49; see also s 70 of the Real Property Act. This in turn might suggest that unless and until the Northern Territory took appropriate steps to have the certificate cancelled: see e.g. ss 60 and ss 64; the grantees had title by registration to the lands in question.
119	We express no conclusions on any of these matters. They have not been explored before us. We merely note potential difficulties in the path of this particular submission.
120	We dismiss the notice of contention.

Conclusion

121	For the preceding reasons the appeal is dismissed.

I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:
Dated: 6 July 2007

Counsel for the Appellant:	Mr S Gageler SC and Mr S Glacken
Solicitor for the Appellant:	Central Land Council
Counsel for the First Respondent:	Mr T Pauling SG QC and Ms J Kelly
Solicitor for the First Respondent: Counsel for the Third Respondent: Solicitor for the Third Respondent:	Solicitor for the Northern Territory Mr V Hughston SC and Dr M Perry QC Australian Government Solicitor
Date of Hearing:	6, 7 and 8 November 2006
Date of Judgment:	6 July 2007