case_text: I set out below the names and brief biographical information concerning the Aboriginal witnesses, based primarily on their own evidence. I refer to these witnesses by their preferred names or by the names used by counsel for the applicants. All but four of the witnesses are identified by the applicants in their proposed amendment to the pleadings as members of the compensation claim group (see par 230, above). The four witnesses who have not been included in the group are Barbara Tjikartu, Dora Haggie Walkabout, Pantjiti Mckenzie and Donald Fraser. I also include some information relating to Yami Lester, a knowledgeable and senior Aboriginal man, who was called as a witness by the Commonwealth. • Johnny Jango (Jingo) . Mr Jango was Chairperson of the Mutitjulu community at the time of the hearing. He was born between 1939 and 1944 at Maratjurra (Lyndavale Station), roughly 150 kilometres to the east of the Application Area. Mr Jango speaks both Yankunytjatjara and Pitjantjatjara, but also understands a number of other dialects. His father, Mick Wilyarti, was a Yankunytjatjara man, born near Yularra Purlka in the Kata Tjurta area. (Professor Sutton acknowledged that he had received contradictory information from Aboriginal people on Mick Wilyarti's birthplace.) Mick Wilyarti's father (Mr Jango's tjamu (father's father)) was Ngiyara and Mick's mother (Mr Jango's kami (grandmother)) was Tjintjiwarra. According to Mr Jango, his mother was born at Kulal, northeast of Docker River, approximately 200 kilometres to the west of the Application Area. His sisters are Millie Okai and Judy Kunmarnarra (Trigger), both of whom gave evidence. Mr Jango met his wife, Elsie Wunatjura, at Areyonga, where he went to school and lived for some time. Mr Jango and Elsie married according to Arnangu law. They have two surviving children, Todd and Rita. (Rita gave evidence, but Todd did not.) Mr Jango first visited Uluru as an unmarried wati (initiated man), when he travelled there with a group of watis. At the time there was no community, but Ian Cawood was operating the Ayres Rock Chalet. Mr Jango left Uluru and worked at many stations in the region, including Erldunda, Jay Creek and Docker River. He returned to Uluru before the 1985 Handback with his wife and two children. At one point in his evidence Mr Jango said that he was ngurraritja for Mutitjulu through his grandmother and also because he had lived there for some time. Later, however, he said that he was ngurraritja for Lyndavale Station and was 'local' for Mutitjulu. • Judy Kunmarnarra (Trigger). Judy Kunmarnarra (Trigger) is Johnny Jango's sister. She was born in 1954 on the old Palmer Valley Station, which was located near the Stuart Highway east of the Application Area. She grew up on the new Palmer Valley Station, but later moved with her parents to Tempe Downs Station. Like Johnny Jango, she said that her mother, Eunice Nyunitju Intjipati, was born near Docker River and was a Pintjantatjara woman. Her father, Mick Wilyarti, was sometimes called Mintjwarra because he carried a long spear. Judy speaks Pitjantjatjara from her mother and Yankunytjatjara from her father. She married Derek Trigger (deceased), a Luritja man from Haasts Bluff whom she met at Areyonga. Judy has one son, born in 1976, and one grandchild. Judy moved to Mutitjulu in 1985, at about the time of the Handback. She worked for a long time at the Mutitjulu Primary School. • Millie Okai. Millie Okai is Johnny Jango's 'big sister'. She was born at Lyndavale Station when her parents were working there. Her father, Johnny Nyukarli, was born at Karlaya, near Docker River. Her mother, Wirrika, was born at Pulari (Uluru) and grew up in that area (encompassing Yularra Purlka, Pirurrpa Karla and Ampiyarra). Wirrika was Mick Wilyarti's sister. Millie's maternal grandmother, Tjintjiwarra, was a Yankunytjatjara woman who was born at a place between Mantarurr and Pirurrpa Karla. Tjintjiwarra's first husband was Ngiyarri. After Ngiyarri's death, Tjintjiwarra married Mirruwanti (Ngiyarri's brother). Millie speaks Yankunytjatjara from her mother's side and Pitjantjatjara from her father's side. Millie's first husband was Nelson Okai. Nelson Okai's father was Hawkeye, who had two brothers, Minawara and Carbine. According to Millie, the three brothers' country was at Uluru. Millie first came to Uluru with her first husband. After he died, Millie moved eventually to Mutitjulu, where she married her second husband, Pastor Ezekiel, a Pitjantjatjara man from the Docker River area. • Rita Jingo. Rita Jingo is Johnny Jango's daughter. Rita was born in 1971 in Alice Springs Hospital. At the time her parents were living at Jay Creek. Rita regards herself as a Yankunytjatjara woman through her father and paternal grandfather, Mick Wilyarti. Rita grew up speaking Pitjantjatjara because people around her spoke that language, but she can still speak Yankunytjatjara. Rita came with her family to Mutitjulu when she was about nine years of age. She attended school at Alice Springs, but visited her parents at Mutitjulu and Yularra Purlka during school holidays. She left school at 15 and has resided at Mutitjulu ever since. Rita's first husband (deceased), with whom she had two children, came from Snake Well in Western Australia. She is now married to Ashley Paddy from the Amata region and they have two children. Rita has worked as a Ranger in the National Park for several years. • Reggie Uluru . Reggie was born in the late 1930s or early 1940s at Parramita, northwest of Indulkana, in South Australia, on what are now the Arnangu Pitjantjatjara Lands. Reggie's mother, Nancy, was a Yankunytjatjara woman, born at Mimili (Everard Park), to the south of Fregon (which itself is southeast of the Application Area). His father, Paddy Uluru, a Yankunytjatjara man, appears to have been born near Ernabella in South Australia, to the southeast of the Application Area. Reggie's paternal grandfather, Lungkarta, was born at Uluru and is buried there. Reggie's first language is Yankunytjatjara, but he also speaks Pitjantjatjara, Luritja and Arrernte. Reggie's siblings include his younger brother, Cassidy Uluru. Reggie met his wife, Sarah Goodwin, when she was working at Ernabella. Reggie has three children of whom the oldest is Sandra. (Sandra did not give evidence although she is named as a member of the compensation claim group.) From the time he was a young child, Reggie worked at stations with his father. He first went to Uluru as a boy, in the company of his family who hunted and collected food in the area. At that time Bill Harney was working as a Ranger. Reggie returned to Uluru to live long before the Handback, for which he signed many important papers. He worked with Derek Roff as a Ranger for a time. Reggie was a member of the first Board for the Uluru-Kata Tjuta National Park and has served as a member of the Mutitjulu Council. • Cassidy Uluru. Cassidy Uluru, Reggie's brother, was born in about 1949 at Tjinawakanta, south of Wallatinna in South Australia. Cassidy's father was Paddy Uluru. His mother, Munyi (Molly) Breaden, was born at Mimili in South Australia. Like Paddy Uluru, Munyi Breaden spoke Yankunytjatjara. Cassidy grew up at Mimili where his parents were working, but he attended school for brief periods at Ernabella and Fregon. He first visited Uluru with his family when he was about five years old. At that time, Bill Harney lived in a tent at Uluru and tourists visiting the area overnight stayed in tents. Cassidy met his wife, Tiku, when both were camping at Murtitjulu as children. Tiku was born in Alice Springs and her first language is Pitjantjatjara. Cassidy's language is Yankunytjatjara but he also speaks Pitjantjatjara at home. As a young man and as an initiated man, Cassidy worked on cattle stations including Mimili, where he worked with his father. Cassidy moved to Uluru to live after his mother's death at Mimili, but before his own marriage. At the time, Derek Roff was the Ranger and Cassidy worked with him for wages. Cassidy participated in the Handback ceremonies and still works with the National Park. • Bessie Liddle. Bessie Liddle was born at Iltjiltjarri near Tempe Downs Station. Her maiden name was Bessie Breaden. Her father, Jason Breaden, was born at Henbury Station. Jason Breaden's father was Alan Breaden, a white man. Bessie's mother, Tjanguwa Okai (also called Glenda Breaden), was born near Tempe Downs Station. Tjanguwa Okai's father was Kanakana Hawkeye, whose main language was Yankunytjatjara. Hawkeye's siblings included Mick Minawara and Carbine, both of whom were born around Uluru, and Ngui Ngui Tjalumi. Hawkeye got his name because he worked as a police tracker. Bessie's family moved around a lot when Bessie was young, as her father was a stockman. Bessie had some schooling at Alice Springs and Hermannsburg. Her father died when Bessie was about 14. After her father's death, Bessie's uncle, Bob Buck, took the family to his station at Mt Quinn. Bessie first visited Uluru in the 1960s with her husband, an Arrernte man (now deceased) who was raised in Alice Springs. Bessie's first language is Luritja, but she speaks Yankunytjatjara from her mother's side and Arrernte from her father's side. However, she gave her evidence without the assistance of an interpreter. In the 1970s Bessie and her family formed the Luritja Land Association to try to regain traditional Luritja lands. • Nellie Armunta . Armunta was born in the late 1920s at Cave Hill in South Australia, about 100 kilometres south of the Application Area. Her father, Charlie Aluritja, was born at Mantarurr and was a Yankunytjatjara man. (Armunta told Professor Sutton that her father was born at Pirurrpa Karlarrinytja, a short distance to the northeast of Mantarurr.) Charlie Aluritja grew up in the Mantarurr area and around Kata Tjurta and Uluru. Armunta's mother, Murika, was a Yankunytjatjara woman, born at Apu Tjirlpi, near Mulga Park, about 80 or 90 kilometres to the southeast of the Application Area. Armunta's maternal and paternal grandparents were all Yankunytjatjara people. Her paternal grandfather, Purpartu, was born at Pirurrpa Karla, which is close to Mantarurr, and grew up in that area. Her paternal grandmother, Nyapatjarriny, was born and grew up at Ullkiya, to the south of the Application Area in South Australia. Armunta grew up at Mantarurr with her extended family group. The group lived in a traditional manner and hunted for food in many places in the area. Armunta married Dickie Minyintiri, who was born near Piipalyatjarra in Pitjantjatjara country. Although the sequence of events is not entirely clear, Armunta and Dickie lived for a long time at Ernabella and Armunta gave birth to five children in the bush near Ernabella. She also lived with her family at some stage at Mutitjulu, but they left there because they were upset at not getting a house. Armunta now apparently lives at Cave Hill. She has three surviving children, fourteen surviving grandchildren and six great grandchildren. Armunta is a custodian of the site at Katartitja which is registered with the Aboriginal Areas Protection Authority. None of Armunta's children gave evidence. • Windlass Kunmarnarra (Aluritja). Windlass is Armunta's brother. He was born at Wintawarta, west of Amata, close to Cave Hill in South Australia. Windlass' language, like that of his parents, is Yankunytjatjara. He agreed with Armunta that their father, Charlie Uluritja, was born at Mantarurr. According to Windlass, his mother, Murika, was born at Kajikuta, near Amata. Windlass also said that his paternal grandfather, Pupartu, had been born to the east of Docker River at Urilpila. Windlass' wife, who died long ago, was from Karnypi and worked at the Mission School at Ernabella for a long time. All five of Windlass' children were born at Ernabella. As a child, Windlass walked around the Kata Tjurta and Uluru area with his family, although they appear to have spent most of their time at Mantarurr. They camped at different sites in the area including Yularra Purlka, Kurlpi Taltja, Kata Tjurta and Uluru. At some stage, the family travelled to Ernabella where Windlass attended school. After becoming a wati at Ernabella, Windlass hunted for dingo scalps around Mantarurr. As a man, Windlass worked at many stations in the region. He seems to have spent time at Uluru in the 1960s and 1970s, since he worked with Derek Roff and assisted ARAC with some of its work. Windlass said that he took his wife 'back to Mantarurr and [the] Kata Tjurta area', but it is not clear when this happened. Of Windlass' five children only one (Alison Carroll) gave evidence. • Alison Carroll (Windlass). Alison Carroll's parents are Windlass Aluritja and Tjuwilyi, a Pitjantjatjara woman born southwest of Ernabella. Alison herself was born at Ernabella in 1958 and still lives there. She identifies as both a Yankunytjatjara and Pitjantjatjara woman, but speaks mainly the latter dialect. Alison grew up at Ernabella and went to school there. She visited Kurlpi Tjarta as a very young girl for a short period in the company of her family. She would also travel to Mantarurr and Uluru with her father and siblings. As a 15 year-old she visited Uluru. She also visited Mantarurr as an adult in order to learn about the important places. Alison married Pipeye Carroll from 'Papunya, Haast's Bluff Areyonga side'. She and her husband have five children and two grandchildren, all of whom live at Ernabella. Alison serves on the Board of the National Park and also accompanies her father to other meetings. • Nellie Patterson. Mrs Patterson was born and 'smoked' in about 1938, at Piipalyatjarra, in the Tomkinson Ranges near the Western Australian border. Her Arnangu name is Nula. As a child, she lived mostly around Mantarurr, but the family returned to Piipalyatjarra in order for Mrs Patterson's mother, Mary Angili, to give birth to children. Mrs Patterson's language is Pitjantjatjara, but she speaks Yankunytjatjara and understands Warlpiri and Pintupi. Mrs Patterson's father, Tommy Mungurin, was also born at Piipalyatjarra but lived at Ernabella and Mulga Park. He was a Pitjantjatjara man, as was his father, Katanya (Mrs Patterson's paternal grandfather). Mrs Patterson's mother, Mary Angili was born at or near Umutju, near the Mann Ranges to the southwest of the Application Area. Mary's mother, Mitjunitja, grew up near Umutju. Mrs Patterson married her promised husband Tommy Wongin (deceased) from Karnpi, near Amata. His language was Yankunytjatjara which he got from his father, but he also spoke Pitjantjatjara from his mother's side. Mrs Patterson's son, Matthew, was born in 1983, apparently at Alice Springs. He was smoked in the bush near Amata, where the family was living at the time. As a child, Mrs Patterson walked with her extended family around Mantarurr, Kata Tjurta, Uluru, Yularra Purlka and other places in the area. Sometimes she would travel with Charlie Aluritja and his wife and her (Mrs Patterson's) maternal grandmother, Mitjunitja. Mrs Patterson lived at Mutitjulu with her husband for about 20 years and in the 1980s and 1990s she worked as a Park Ranger. She now lives in Alice Springs for health and family reasons. Mrs Patterson was a member of the Board of Management of the National Park for a long time. She was a founder of the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women's Council. • Barbara Tjikartu. Tjikartu was born in about 1938 at Nyira in the Mann Ranges in South Australia, near the Western Australian border. Tjikartu's father, Wangili, was a Pitjantjatjara man who was born at Anumarra Pirti in Western Australia. Her mother was a Pitjantjatjara woman from the Puka Puka area near Piltarti, in the Mann Ranges. Tjikartu's language is Pitjantjatjara. Her maternal grandmother was Pantjiti, whose birth place was Piipalyatjarra in Pitjantjatjara country. Tjikartu married Nipper Winmati (deceased), a Yankunytjatjara man who was born near Docker River. (Millie Okai said that Nipper Winmati in fact was a Pitjantjatjara man.) Because of her marriage, Tjikartu is sometimes known as Barbara Nipper. Tjikartu is the mother of Colin Nipper, who gave evidence, and five other children. Tjikartu is a member of the Board of Management of the National Park. She has been actively involved in the development and operations of the Uluru Cultural Centre. (At an early stage in the proceedings, Mr Parsons said that Tjikartu, although not expressly named in par B1.8 of the Points of Claim, had interests in the area. However, he also suggested that Tjikartu had 'primary central interests elsewhere' and that her main interest in this area was as the mother of children who were members of the compensation claim group. During final submissions, Mr Basten handed up a document indicating that Tjikartu was indeed intended to be a member of the compensation claim group. For some unexplained reason, Tjikartu was excluded from the 'exhaustive' list of claimants embodied in the proposed amendment to par B1.8 of the Points of Claim.) • Colin Nipper. Colin Nipper is the eldest child of Tjikartu and Nipper Winmati. He was born at a creek near Areyonga in the mid-1950's. At the time, his parents were living in Areyonga and had been for some time. Colin takes his surname from his late father. He speaks Pitjantjatjara, the language he learned at school in Areyonga, but he also speaks Luritja and Arrernte. Colin, whose Arnangu name is Antama, is married to Teresa Nipper, a Pitjantjatjara woman. Her country is Umutju in the southwest corner of the Northern Territory. Teresa has two children by her first husband Billy Wilson (deceased) and four children with Colin. One of Teresa's children by Billy Wilson is Peter Wilson. • Peter Wilson. Peter Wilson was born in Alice Springs Hospital in 1973. His mother is Teresa Nipper, a Pitjantjatjara speaker from Areyonga. Peter's father, Billy Wilson, left the family when Peter was very young and Peter was raised by his stepfather, Colin Nipper. Peter's paternal grandparents (through his stepfather) are Nipper Winmati and Barbara Tjikartu. Peter was raised as a young child in Areyonga, but was educated in Ballarat (Victoria), Alice Springs and Darwin. After leaving school, he completed a Land Management course at Batchelor College. Peter commenced work in 1994 as a trainee Ranger at the National Park and at the time of the hearing was a Ranger whose responsibilities included the Mala (rufous hare wallaby), Kuniya (python) and Lirru (brown snake) walks at Uluru. Peter's first language is Pitjantjatjara, but he is fluent in English and gave his evidence in that language. Peter is married to an Arrernte woman from the 'right side' and they have three daughters, all of whom were born in Alice Springs Hospital. Peter said in evidence that he would 'lean towards' Docker River (where his 'ancestors' came from) and Areyonga (where he grew up) as his traditional country. • Malya Teamay. Malya Teamay was born in 1947 at Tjulu (Curtin Springs), which is now located on the Lasseter Highway, east of the Application Area. Malya's mother, Amanyi, came from the Blackstone area in Western Australia. Her language was Ngaatjatjara. Malya's father, Willy Kuntjurmini, was born near Lake Wilson on the borders of Northern Territory, Western Australia and South Australia. Willy Kuntjurmini spoke Yankunytjatjara and Pitjantjatjara. Malya himself grew up speaking Pitjantjatjara, Luritja, Arrernte and Ngaatjatjarra. Malya has been married twice and has four children. He lived in a number of places with his first wife, Mona, and together they conducted a tourist business at Tjulu, on the way to Uluru. Malya first visited Uluru in about 1961, before he had completed wati ceremonies. This was in Bill Harney's time, when Malya's uncle, Snowy Minyintiri, was also working at Uluru. In 1983, Malya was living with his family at Docker River, but took up an opportunity in that year to move to Uluru. He has lived in the area ever since, apart from one period when he lived in Alice Springs. Malya currently resides at Mutitjulu and has served as Chairman of the Mutitjulu Community Council. Malya Teamay is Chairman of the Indigenous Heritage Committee set up by the Park Rangers and has served on the Board of Management for the National Park. • Kitty Impana (Collins). Kitty Impana was born at Areyonga in 1953, when her parents, Snowy Minyintiri and Mary Tjingapa, were living there. Impana is a step-sister to Barbara Tjikartu because Tjikartu's mother married Snowy Minyintiri when Impana was small. Snowy Minyintiri was a Nyakatatjara man who also spoke Pitjantjatjara. He grew up near Docker River, where his mother was born. Impana's mother, Mary Tjingapa, a Yankunytjatjara woman, was born at Yulara and is buried at Mutitjulu. Mary Tjinjapa's father (Impana's maternal grandfather) was a Yankunytjatjara man from Kata Tjurta and Titirarra. Impana's first husband died many years ago. Her second husband, Des Kunoth was born at Tjunti and grew up at Angas Downs. He is the father of Impana's two children, one of whom (Raelene) was born on a sandhill near Murtitjulu. • Frank Djana. Frank Djana is Kitty Impana's brother. The name 'Djana' was given to him by the missionaries at Areyonga, where he was born. He is also known as 'Dr Frank' because he worked in health care for a long time. According to Dr Frank, his mother, Mary Miyarini, was born at Pirurrpa Karlarrinytja, near Kata Tjurta, and spoke Yankunytjatjara. Dr Frank's father, whom he called Nui Minyintiri, was born west of Docker River, but died at Mutitjulu in 1985. Dr Frank himself was born at Areyonga and became an initiated man there. He first went to Uluru as a married man with children. He moved to Mutitjulu at about Handback time. Dr Frank at one time was the Chairperson of the Mutitjulu Community Council. • Ngoi Ngoi Donald. Ngoi Ngoi was born in the bush at Wartarrka (Kings Canyon), at a time when her mother was travelling across country by camel. She received the special name 'Ngoi Ngoi' from her paternal grandmother. Her father was Lively No 1 Palyinjka, Nipper Winmati's brother. Lively No 1 was a Yankunytjatjara man who was born at a women's site near Murtitjulu Springs (Uluru) and grew up at Uluru and Kata Tjurta. Ngoi Ngoi's mother, Imanturra, was born near Docker River and spoke Pitjantjatjara. Ngoi Ngoi grew up speaking that dialect, but says that she identifies as a Yankunytjatjara person notwithstanding that she was born on Luritja country. As a child, Ngoi Ngoi lived with her parents at Areyonga because they could get rations there. She would travel to Mutitjulu by camel 'for holidays'. At that time Bill Harney was living there in a tent. Ngoi Ngoi worked at a motel at Uluru for a short period during Bill Harney's time. She then appears to have lived at Areyonga, although after the Handback she lived with Tjikartu and Nipper Winmati at Ampiyarra. She then went to Mutitjulu where she stayed for a long time before finally returning to Areyonga. Ngoi Ngoi married William Donald, who was born at Waralla, near Angas Downs, and whose language is Pitjantjatjara. Ngoi Ngoi has three children and one grandchild. Although the children were included in the compensation claim group, they did not give evidence. • Dora Haggie Walkabout. Dora Walkabout was born at Urrampinyi, on Tempe Downs Station, where her parents were living at the time. Her mother was a Pitjantjatjara woman who was born at Mantapalyka, near Mantarurr Itjinpi. Dora's father, Wintjin Walkabout, was born and grew up near Docker River. Dora's mother died when Dora was young and she was brought up by Tjintjiwarra, who was married to the younger brother of Dora's father. Dora's language is Pitjantjatjara, but she also speaks Arrernte. Dora's first husband was Don Okai, a Yankunytjatjara man born at Maratjarra (Lyndavale). They had six children together. After Don Okai's death, Dora became a co-wife of Stanley Kunmarnarra (deceased) and they had one child together. Stanley Kunmarnarra was born at Urlayipa, near Mulga Park. He was the youngest brother of Nellie Armunta and Windlass Aluritja. Dora has served on the Board of Management for the National Park. In her evidence, Dora claimed to be ngurraritja for Mantarurr, Itjinpi, Mutitjulu, Kata Tjurta, Yularra Purlka and Yulara. Nonetheless, she is not included in the compensation claim group put forward by the applicants in their proposed amendment to par B1.8 of the Points of Claim. • Pantjiti McKenzie. Pantjiti McKenzie was born and grew up near Blackstone in Western Australia. Pantjiti's father was from the same place, while her mother was a Pitjantjatjara woman from the Lake Wilson area. Pantjiti's main language is Pitjantjatjara from her mother, but she also speaks Ngaatjatjara from her father's side. Pantjitji is married to Simon Mckenzie, who was born at Pulkurru near Mount Conner, about 100 kilometres to the east of the Application Area. The evidence is somewhat unclear, but it appears that Pantjiti and her husband lived in Mutitjulu for many years from the mid 1950s. Pantjiti's son, Jacob, was born at Mutitjulu and lived there until he was aged three. Pantjiti now lives in Alice Springs because of her husband's ill-health. (As I have noted, Pantjiti is not said to be a member of the compensation claim group. Ms Keely explained that Pantjiti was giving evidence because her son, Jacob, is a claimant. However, Jacob did not give evidence and the list of claimants ultimately put forward by the applicants in their proposed amendment to the Points of Claim does not include him.) • Betty (Biddy) Conway. Betty Conway was born at Tempe Downs in 1956 and grew up at Areyonga where she attended school. Her father, Alec Conway, was born at Tempe Downs, but she was brought up by her stepfather, Big Foot Tjamulmalyi (also called Tjinapulka). Big Foot had two wives, the second of whom was Betty's mother, Ivy Kalykulya, a Yankunytjatjara woman born at Pirurrpa Karla. Big Foot's sister, Eunice, was married to Mick Wilyarti and their children were Johnny Jango and Judy Kunmarnarra (Trigger). Ivy Kalykula's mother was Witjiwarra and her aunt (Witjiwarra's sister) was Mary Miyariny, whose children were Frank Djana and Kitty Impana. Betty does not appear ever to have lived in the Uluru-Kata Tjurta area, having moved from Areyonga to Alice Springs in 1979. However, as a child Betty went to Uluru to visit her brother, Alex Forrester (now deceased), and in more recent times she has visited the area 'a couple of times each year'. Betty had one child with her first husband in 1974. After her first husband's death when their son was a little baby, she married Billy Armstrong, a Pertame man, with whom she had four children. One of their children, Selissa, is a Senior Ranger at the National Park and has lived at Mutitjulu since the age of 16. Betty can speak Yankunytjatjara but has not spoken it a great deal recently. She also speaks Pitjantjatjara and Luritja. • Nicola Forrester. Nicola Forrester was born in Alice Springs in 1972. She lives in Victoria for family reasons and gave her evidence in English. Ms Forrester's father was Alec (or Alex) Forrester (deceased), a Pitjantjatjara man from the Western Desert. Her mother is Nola Armstrong, an Arrernte woman from Alice Springs whose country is around Finke River. Ms Forrester has five children. She grew up speaking Pitjantjatjara and indeed is an accredited interpreter in that language. She also learned Arrernte from her mother. Ms Forrester lived at Finke and Jay Creek when she was very young and later attended school in Alice Springs, Adelaide and Darwin (Batchelor College). The family visited Uluru often. When Ms Forrester's parents separated, her father moved to Uluru, but the children stayed with their mother. After her marriage at a young age, Ms Forrester lived for a time at Yularra Purlka and thereafter at Mutitjulu. Ms Forrester worked at the National Park for a total of nine years, in the course of which she learned the Tjukurrpa stories from older Aboriginal people and Park staff. • Donald Fraser. Donald Fraser was born in 1947 or 1948 at Ernabella. His father, Tommy Minyungu, was born at Kurlpi Tjarta and spoke Yankunytjatjara as his main language. Mr Fraser's paternal grandfather, Warawarra, was born at Uluru and thus his country included Uluru and Kata Tjurta. Mr Fraser's mother, Inyalangka, is a Pitjantjatjara woman. Donald lives at Yunyaryni, east of Ernabella (formerly Kenmore Park Pastoral Lease) and has done so since 1978. As a child Mr Fraser moved around with his parents. He started school at age 10 or 11 at Ernabella and became a wati at Areyonga. Mr Fraser visited Kulpi Tjarta when he was very small, travelling on foot or by camel from Ernabella. He later visited Uluru as a wati . Mr Fraser's wife is from Walytja Tjarta in the Mann Ranges. He and his wife have four children. Mr Fraser has been the Chairperson of the Uluru-Kata Tjuta National Park since 2003. He gave his evidence in English. Mr Fraser was not put forward as a member of the compensation claim group, either in the original pleadings or in the proposed amendments to par B1.8 of the Points of Claim. Nonetheless, Mr Fraser claimed that he could speak for Uluru because it was his father's and grandfather's country. He also maintained that he is next in line after Windlass Aluritja and Jim Nyukuti, who was said by Dr Willis to be recognised as ngurraritja for an area to the west of Kata Tjurta, as a senior man for Uluru. • Julie Clyne. Julie Clyne was born in Alice Springs in 1958. Her father, Ben Clyne, was born in the 1930s, also in Alice Springs. Ben Clyne had a white father but he was raised by Arrapi, a man from the Kata Tjurta area, as Arrapi's son. Ben Clyne's sister was Tintjiwarra. Julie Clyne's mother, Daisy Clyne, was born at Mt Cavenagh Station. As a child, Julie travelled to different stations with her father. When she was 11 years of age she was taken to Amoonguna to go to school. She first visited Ulpanyali (Kings Canyon) as a teenager and later went to live there. Julie now lives at Ulpanyali Outstation, east of the Ulpanyali sacred site of which she is the custodian. Julie has two children who also live at Ulpanyali. She has never lived around the Uluru-Kata Tjurta area and, as she agreed in cross-examination, does not know the laws or Tjukurrpa for this country. • Yami Lester. Yami Lester was called as a witness by the Commonwealth but the applicants relied on some of his evidence to support their case. It is fair to say that Mr Lester is a remarkable man. He was born in 1941 at Wallatinna Station in South Australia, in what he described as Yankunytjatjara country. He is now the owner of the station and lives there. Mr Lester's mother was a Pitjantjatjara woman and his stepfather was a Yankunytjatjara man. Mr Lester's stepfather's sister, Munyi, was married to Paddy Uluru. As a child, Mr Lester had no education in the 'white man's way' and he grew up speaking only Yankunytjatjara. His stepfather worked on various stations and the family travelled to those places. People would walk in family groups from one station to another and on these travels Mr Lester heard the Dreaming stories from Paddy Uluru. At the age of 16 Mr Lester became blind, a condition he attributes to radiation from the atomic tests at Maralinga in the early 1950s. He then went to Adelaide for about 14 years, where he lost touch with his people. While in Adelaide he learned English and he returned to central Australia to act as a translator for Western Desert languages. He also received training in welfare and social work. Mr Lester was involved in the establishment of the Central Land Council and of the Institute for Aboriginal Development. He also participated in the work of ARAC in the mid-1970s. At the time he gave evidence Mr Lester, among other positions held by him, was the Chairperson of the Yankunytjatjara Council and a Board Member of the South Australia Aboriginal Housing Authority. Mr Lester's country is his birthplace, Wallatinna, and Iltur (Coffin Hill) through his mother's side. He does not claim that the area around Uluru-Kata Tjurta is his country. 276 Dr Willis is a Senior Research Fellow in Sex, Health and Society at the Australian Research Centre, La Trobe University, Victoria. Although born of European-Australian parents in New South Wales, for most of his adult life Dr Willis has worked for and with Pitjantjatjara and Yankunytjatjara people. He speaks both dialects. In 1991, Dr Willis became a Pitjantjatjara man through an initiation ceremony which took place at Docker River. Since becoming a wati , he identifies himself as a Pitjantjatjara/Yankunytjatjara man and as an Arnangu . 277 In 1997, Dr Willis completed studies towards the award of a Doctorate of Philosophy by the University of Queensland. His thesis examined the social construction of Pitjantjatjara and Yankunytjatjara masculinity and sexuality through Walpurku inma and the Tjilkatja cycle of ceremonies. For several years, Dr Willis worked with the Pitjantjatjara Council as an anthropologist. In that capacity, he assisted at the Handback in 1985, where he first met a number of the claimants. He also participated in site clearances, including one for a gravel quarry at Impumpu, some forty kilometres west of Kata Tjurta. From 1989 to 1997, Dr Willis worked with some of the indigenous witnesses as a Community/Park Liaison Officer at Uluru-Kata Tjuta National Park. His primary role was to assist the traditional landowners of the National Park to carry out their responsibilities as co-managers of the Park with the Australian National Parks and Wildlife Service (now Parks Australia). 278 Dr Willis has learned Arnangu laws and customs in general, and the laws and customs of the Uluru-Kata Tjurta area in particular, in 'a similar way to most other Arnangu men'. He has learned the laws and customs of the Uluru-Kata Tjurta area from a series of knowledgeable men, including Reggie and Cassidy Uluru, Johnny Jango, Windlass Aluritja, Malya Teamay, Nipper Winmati and Yami Lester. Dr Willis has also acquired information from women who occupy the position of 'mother' to him, including Nellie Patterson, Nellie Armunta and Rita Jango, as well as from women who occupy the position of 'sister' and 'grandmother', such as Barbara Tjikartu. Dr Willis emphasised that he has learned different classes of information from different groups of Arnangu . 280 A number of points should be made about Dr Willis' evidence: • First, there was no attack on Dr Willis' credit. I accept him as a witness of truth. I also accept that, generally speaking, his statement constitutes a careful description of events and conduct that he has observed over many years, as well as his observations on other matters within his own knowledge. • Secondly, Dr Willis' evidence is very useful on the issues with which he deals because of his unique perspective as an observer of and an adherent to the laws and customs of the Yankunytjatjara and Pitjantjatjara people of the eastern Western Desert. It is hardly surprising that most indigenous witnesses, particularly if they must speak through an interpreter, experience difficulty in explaining or describing the content of their traditional laws and customs in the alien environment of a courtroom (even if the proceedings are relatively informal). This in no way denigrates the importance or cogency of their evidence, but merely reflects the fact that there are cultural and conceptual barriers to effective communication between indigenous and non-indigenous people on sensitive issues. Dr Willis' training and research experience, coupled with his own experiences as a wati , equip him to convey the concepts embodied in traditional laws and customs in a manner that, to some extent at least, overcomes the communication barriers that otherwise exist. • Thirdly, despite the length of his statement, Dr Willis' evidence was limited in important respects. He explained in detail such matters as the concept of Tjukurrpa; the significance of ceremonies and rituals to Pitjantjatjara and Yankunytjatjara people; behavioural rules and prohibitions; belief systems, such as the belief that human bodies are the transformation of the kurunitja (spirit or essence) of Tjukuritja (ancestral beings); ceremonial transformations reflecting those beliefs; initiation rituals; and restrictions on information. However, because the applicants did not press sections of Dr Willis' statement in the face of objections, or perhaps for other reasons, his evidence paid little attention to the laws and customs governing the acquisition and recognition of rights and interests in land. Accordingly, his evidence was largely peripheral to one of the critical issues in the case, namely whether the laws and customs relied on by the applicants can be regarded as 'traditional' in the sense required by s 223(1) of the NTA. • Fourthly, Dr Willis' evidence does not always fully support the case presented by the applicants. Indeed, in some respects, as the respondents contend, his evidence is difficult to reconcile with the applicants' contentions. • Fifthly, any judicial observations made in relation to Dr Willis' evidence in other cases are quite irrelevant to the current proceedings: cf De Rose (FCA) , at [22], [332]-[346], per O'Loughlin J. • Sixthly, I reject the Commonwealth's submission that the applicants' decision not to call Dr Willis as an expert witness gives rise to an inference that his expert testimony would not have assisted their case. However, Dr Willis is an initiated man who is both knowledgeable about the laws and customs of the Western Desert and able to articulate his views clearly. In these circumstances, the fact that his otherwise detailed evidence does not explain in any depth his understanding of the laws and customs of the Western Desert relating to rights and interests in land is a significant omission in the applicants' case. 281 The applicants tendered statements from three non-indigenous lay witnesses (other than Dr Willis). Only one, Derek Roff, gave oral evidence. Mr Roff took up a position in 1968 as Curator of what was then the Ayres Rock - Mount Olga National Park. He remained in the area until 1985 and in the mid-1970s attended meetings of ARAC. The applicants submit that Mr Roff's evidence confirms 'much of the general picture of the lives and ways of the claimants as given in their evidence'. The Commonwealth, by contrast, contends that Mr Roff's evidence does 'not greatly advance the applicants' case' and indeed supports the Commonwealth's submissions as to the efficacy of the site clearance conducted in respect of the Yulara town site in 1974. 282 Paul Josif provided a statement which was admitted without objection and without Mr Josif being required for cross-examination. Mr Josif was the Joint Management Co-ordinator of the Uluru-Kata Tjuta National Park from 1997 until 2001. However, his evidence is of peripheral significance to this case. 283 The statement of Rev William Edwards was also admitted into evidence without Rev Edwards being required for cross-examination. Reverend Edwards worked as a missionary at Ernabella from 1958 to 1972. He has a Masters degree in anthropology from the University of Adelaide and has lectured in Aboriginal Studies. Reverend Edwards appended to his statement his article, Patterns of Aboriginal Residence, to which I have previously referred (see par 134, above). The applicants make no reference in their submissions in chief to this article. However, the Commonwealth submits that Rev Edwards' description of traditional land ownership and patterns of Aboriginal migration is more consistent with the views of anthropologists such as Tindale, Berndt and Munn than with those of Professor Sutton. 284 The applicants base many of their submissions on the expert report of Professor Peter Sutton, an anthropologist who has impressive qualifications. They also rely, although to a lesser extent, on a report by Ms Petronella Vaarzon-Morel, a consultant anthropologist. I refer to their evidence, particularly that of Professor Sutton, in section 15 , below. 357 Professor Sutton undertook a detailed analysis of a variety of materials in order to demonstrate that there has not been any 'long term full hiatus' in people's connection with the study area. The source material includes, but is by no means limited to, information provided to Professor Sutton or Ms Vaarzon-Morel by the Aboriginal people they interviewed. However, the information cited by Professor Sutton is often supported by the direct evidence of Aboriginal witnesses. None of that evidence was seriously challenged. The direct evidence includes the following: • evidence that Tjamiwa (a relatively recently deceased man who gave instruction in Arnangu ways, among others, to Dr Willis) was a Mala man born at Ulkiya on the Mala track, south of Uluru; that Tjamiwa made his first visit to the Uluru-Kata Tjurta area before any development had taken place; that he stayed in the area for many years; that he was extremely knowledgeable about the laws and customs of the area; and that he was regarded by Dr Willis and Yami Lester (among others) as a very important man for Uluru; • evidence that Paddy Uluru was widely regarded as having authority over the Tjukurrpa stories for the area; that Yami Lester was told the stories by Paddy when he (Yami Lester) was a child; that Mr Lester knew that Paddy was the 'number one man' for Uluru; that Paddy lived at Uluru until he left because of a shooting incident in the 1930s; that thereafter he would come and go to and from the area; that Paddy showed Mr Lester in 1971 all the important places around Uluru and that he (Paddy) was recognised by the other Aboriginal men as the main owner; that Paddy was a source of knowledge and instruction for traditional laws and customs; and that he ultimately returned to the area and was buried at Mutitjulu in 1979; • Armunta's evidence that her father, Charlie Aluritja, was born and grew up at Mantarurr; that she grew up in that area in the traditional way; that when she was a child she and her family walked around Kata Tjurta and Uluru gathering food in the traditional way; that her Dreamings are Kungka Kutjarra, Seven Sisters and Mala; that she was taught the Tjukurrpa by her father and his mother; and that throughout her life she has learned of and adopted traditional practices; • Ngoi Ngoi Donald's evidence that her father, Lively No 1, was born near Mutitjulu and grew up in the area; that as a child in the 1950s she travelled by camel with her family to Uluru for holidays; that she lived at Ampiyarra and Mutitjulu for a long time after the Handback; that Ngoi Ngoi learned of the Tjukurrpa around Uluru from her grandmother (Tjintjiwara) and her father; that she participated in the Kuniya inma as a child; that she holds the Kuniya Tjukurrpa ; and that she has followed traditional practices relating to gathering of food, the use of bush medicines and 'sorry business'; • Reggie Uluru's account of travelling with his family to Uluru in the 1940s, before he became a wati; that he is an initiated man and had become wati tjirlpi (a senior initiated man); that he returned to Uluru to look after the area, see what his father taught him and to oversee the whole area; that he lived and worked at Uluru for a long time; that he is knowledgeable about and follows traditional Arnangu law relating, for example, to hunting, food-gathering, traditional implements and sorry business; that he has both the Mala and Kuniya Tjukurrpa derived from his father, mother and grandfather; and that he knows the Tjukurrpa and the sites for the Uluru-Kata Tjurta area; • Barbara Tjikartu's evidence that she walked with her family around the Uluru-Kata Tjurta area as a child; that she worked at Uluru from Bill Harney's time; that her husband (Nipper Winmati) grew up at Uluru which was his country and his father's country; and that she is ninti (knowledgeable) about the Tjukurrpa for Uluru and has taught her children about the Tjukurrpa ; • Yami Lester's evidence that when he first went to Uluru in 1971 he met Aboriginal people living there; and that those people included Captain No 1 and his wife Mary and daughter Tiku, Captain No 2 (Captain No 1's brother), Nui Minyintiri (who was Frank Djana's father and had been at Uluru in 1968 when Derek Roff arrived) and Toby (apparently Windlass Aluritja's brother) and his wife Ada; and • Windlass Aluritja's evidence that he took his country at Kata Tjurta from his father, Yaluritja; that as a child he walked through the Uluru-Kata Tjurta area with his family and camped at a number of places; that he worked and lived at Uluru for some time; that he was an initiated man; that he learned about his country and the Tjukurrpa from his father (and others) after he was initiated; that his Dreaming is the Honey Ant which travels from his birthplace through Mantarurr and Mutitjulu; and that he knows all the traditional ways and as a senior initiated man teaches his children and the younger people. 358 The evidence to which I have referred suggests that, notwithstanding periods of interruption, a small number of Aboriginal people maintained a physical association with the country around Uluru-Kata Tjurta from the 1930s. It also suggests that in the five decades leading to the Handback some of these people acknowledged and observed important elements of the traditional laws and customs of the Western Desert. 359 This conclusion is reinforced by the evidence given by Aboriginal witnesses as to how they learned of the Tjukurrpa stories and other aspects of traditional laws and customs. Thus Windlass Aluritja said this about the stories relating to calling out for the Warnampi (Water Serpent) at Mantarurr: 'THE INTERPRETER: Right. Yes, my grandfather, his grandfather and his grandfather all told me the story, my tjamu. WINDLASS KUNMARNARRA: Uwa. MR PARSONS: And that story keep [sic] going? WINDLASS KUNMARNARRA: [Aboriginal language spoken] THE INTERPRETER: Yes, those stories here forever now, continue forever, and the water stays, you saw the water there; that water will be there forever. MR PARSONS: And your own kids, do you tell that story, pass that story on? WINDLASS KUNMARNARRA: [Aboriginal language spoken] THE INTERPRETER: Yes, my father told me to say the same story, pass it down, the same story, same story line; I change nothing, the same story.' 404 The applicants then refer to evidence supporting the particular criteria identified in Proposition 7 in the Sutton Report. In summary, their contentions are as follows: • Borning place. The applicants cite numerous examples of witnesses stating that they, or a relative (usually a parent or grandparent), had become ngurraritja for country by virtue of being born there, although the witnesses sometimes also relied on other factors such as being put through the smoke at that place. • Borning place nearby on Dreaming track. The applicants support this criterion by reference to the evidence of several witnesses who suggested, in various ways, that they (or others) had become ngurraritja for country by virtue of their association with a Tjukurrpa track. For example, Dora Walkabout claimed to be ngurraritja for Mantarurr and Uluru, among other places, because she was born at Urrampinyi (Tempe Downs Station) on the Kungka Kutjarra (Two Women) track. (Urrampinyi is some 200 kilometres from Uluru.) Johnny Jango claimed to be associated with Uluru by reason, among other factors, of his birth at Maratjurra (about 150 kilometres from Uluru) on the Kuniya Tjukurrpa track. Malya Teamay, who claimed to be ngurraritja for several different areas, said that his country included Uluru through the Kuniya (Python) , Mala (Rufous hare wallaby) , Lirru (Brown Snake) and Kurrpany (Devil Dog) Tjukurrpa tracks. • Kin links. The applicants cite evidence, for example from Frank Djana, Barbara Tjikartu and Windlass Aluritja, that a person can take the country of his or her father or grandfather. However, they also refer to evidence from other witnesses, including Bessie Liddle, that country may be taken through a mother or grandfather or indeed other relatives. This evidence, so the applicants submit, shows that there is not and never has been a 'strictly patrilineal system of acquiring rights in country'. The applicants rely on Donald Fraser's evidence for the proposition that there are factors limiting the extension of country through kin links. The only two factors identified are the need for an 'important Dreaming' and 'choice'. • Generation or time depth of identification with the area. The only evidence to which the applicants refer on this point is that of Donald Fraser. However, the evidence merely consists of a remark that a person's country is where his or her family has lived for hundreds of years. • Linguistic identification. The applicants point to evidence from Frank Djana, Judy Trigger and others suggesting that the area around Uluru and Kata Tjurta is Yankunytjatjara country. Oddly enough, however, it is only in their reply that the applicants address the difficulty that some of the people within the compensation claim group appear not to be Yankunytjatjara people, but people whose first language is Pitjantjatjara or, in some instances, another language of the Western Desert. • Religious and ritual knowledge. The applicants cite the evidence of Peter Wilson (a wati , but a relatively junior man) as support for the contention that ritual knowledge is more concerned with status among rights holders than an independent basis for holding rights. However, they acknowledge that some witnesses (Rita Jango, Pantjitji McKenzie and Donald Fraser) gave evidence suggesting that knowledge of Tjukurrpa , of itself, confers rights in land. • Long association. The applicants submit that the evidence (principally that of Donald Fraser) shows that a person cannot become ngurraritja for a place only by living there for a very long time. However, it can be a factor in activating a condition or in improving one's position in relation to others. Moreover, so they argue, a person can have a long association with a place without physically residing there. • Taking responsibility. The applicants cite only the evidence of Peter Wilson to support this criterion. They accept that it 'involve[s] extensive overlap with others' since it is difficult to take responsibility without knowledge and it is also difficult to acquire knowledge without long association. • Assertion and support. The applicants state that it is not part of their case that assertion is a sufficient basis for holding rights and interests in land. They say that active assertion of and support for a claim 'may be involved in the activation of an "automatic" factor' and may improve the status of the person making the assertion against other rights holders. The applicants do not suggest that any of the Aboriginal witnesses gave evidence to this effect. They appear to deduce the principle from the fact that most witnesses made assertions about their own rights and interests and those of other people. • Caring for country. The applicants refer to evidence from witnesses to the effect that a person who becomes ngurraritja for country is expected to look after it. None of the passages cited by the applicants, however, suggests that caring for country confers the status of ngurraritja on a person. 405 As the Territory points out, the applicants' written submissions adopt what might be described as a cumulative approach. That is, they support each of the various elements of their pleaded case (or of Proposition 7) by reference to the evidence of one or, perhaps, several witnesses. The assumption appears to be that the particular combination of laws and customs upon which the applicants rely can be pieced together like a mosaic, using selected elements from the evidence of individual witnesses. 406 A major difficulty with this approach is that none of the Aboriginal witnesses gave evidence that the traditional laws and customs of the Western Desert relating to rights and interests in land correspond to the case pleaded by the applicants. Indeed the applicants' submissions do not suggest otherwise. It is true that the evidence of the indigenous witnesses, taken overall, provides some support for specific aspects of the pleaded case. In particular, the evidence suggests that having a borning place on or in close proximity to a specific site of itself ordinarily suffices to create rights and interests in that site, although even on this point different views were expressed. But the evidence does not support the dichotomy between 'conditions' (satisfaction of any one of which suffices to create native title rights and interests) and 'additional factors' relied on by the applicants. Nor does it support the combination of criteria pleaded in the Points of Claim or, for that matter, the combination of criteria set out in Professor Sutton's Proposition 7. Perhaps not surprisingly, the evidence of individual witnesses tended to be framed in a way that favoured their own claims or those of close relatives. 715 There is a good deal of common ground among the parties. First , the respondents accept the applicants' contention that the Self-Government Act (an enactment of the Commonwealth Parliament) must be read consistently with the RD Act (an earlier enactment of the Commonwealth Parliament). This concession reflects the principle of construction stated by Gaudron J in Saraswati v The Queen [1991] HCA 21 ; (1991) 172 CLR 1, at 17: 'It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other'. 716 Secondly , s 10(1) of the RD Act continues to speak in respect of Territory laws after the Self-Government Act came into force. This is because s 57 of the Self-Government Act excludes from the power of alteration conferred on the Territory any Commonwealth enactment in force immediately before the commencement of the Self-Government Act : Ward (HC) , at [130]-[133]. 717 Thirdly , the parties agree that acts done by the Executive of the Territory before the NTA came into force could extinguish native title rights and interests over land. Extinguishment would occur if the acts were validly done pursuant to statutory authority and involved an assertion of powers over the land inconsistent with the continued existence of some or all of the surviving native title rights and interests: Ward (HC) , at [26], [151], [214].


case_outcome: cited

case_text: Callinan J acknowledged that there were Canadian authorities to the effect that caveats could not be lodged to protect Aboriginal title under the Torrens system. However, the decision of the Supreme Court of Canada in Paulette v The Queen [1977] 2 SCR 628, turned on the fact that the land had never been granted by the Crown and was not the subject of any registered title (see Paulette v The Queen, at 630). The decision therefore said nothing about whether native title rights and interests could be protected by caveat after a Crown grant had issued in respect of the land. His Honour considered that other Canadian decisions turned on the particular provisions of the Torrens statutes in force: see Uukw v British Columbia (1987) 37 DLR (4 th ) 408, followed in Skeetschestn Indian Band v British Columbia (Registrar of Land Titles) [2001] 1 CNLR 310 (both decisions of the British Columbia Court of Appeal).


case_title: Uukw v British Columbia (1987) 37 DLR (4 th ) 408


case_outcome: discussed

case_text: The latter proposition is illustrated by Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28 ; (1969) 121 CLR 177. The High Court held there that the Mining Act 1906 (NSW) should be construed, in the circumstances of the case, not to interfere with a landowner's right to carry on mining operations on his own land. Barwick CJ (at 181) applied 'the fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in that respect plain ... The courts are not entitled, and ought not, to eke out a derogation of such private rights by implications not rendered necessary by the words used by Parliament but merely considered to be consistent with the policy which the courts conclude or suppose the Parliament intended to implement'. See, too, at 182 per Menzies J. 731 In the light of this rule of construction, the Self-Government Act and the Self-Government Regulations cannot be interpreted as empowering a Territory Minister to undertake public works on freehold or leasehold land (held by persons other than the Crown or its instrumentalities) without consent and without affording adequate compensation. If a Minister purported to authorise such works to be undertaken, his or her conduct would be inconsistent with the rights of the freeholder or leaseholder and would fall outside the executive powers of the Territory. If works were carried out on the freehold or leasehold land without permission, they could not extinguish or impair the title of the freeholder or leaseholder in the absence of specific legislation making provision to that effect. (Such legislation, if enacted by the Legislative Assembly, might also raise issues of compatibility with s 50(1) of the Self-Government Act .) 732 If this reasoning is correct, the Self-Government Act and the Self-Government Regulations would have the practical operation and effect of discriminating against native title holders. In the absence of s 10(1) of the RD Act , those provisions would authorise Territory Ministers to undertake public works on Crown land, including land in respect of which Aboriginal people hold native title rights and interests. If the works were inconsistent with the continued existence of native title rights and interests, those rights and interests would be extinguished and no compensation (leaving the NTA to one side) would be payable in respect of the extinguishment. But the Self-Government Act and the Self-Government Regulations , construed in the manner I have explained, would not authorise the Territory Ministers to undertake public works that could extinguish or interfere with other titles, such as freehold or leasehold estates carrying the right to exclusive possession.


case_outcome: followed

case_text: In Western Australia v Commonwealth [1995] HCA 47 ; (1995) 183 CLR 373 (' Native Title Act Case '), the High Court observed (at 453) that s 11 removes the vulnerability of native title to: 'defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title.' However, the Court also said (at 454) that an: 'act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act . Such an act neither needs nor is given force and effect by the Act'. This comment suggests that s 11(1) is intended to have a prospective effect only, a view supported by the Court's observation (at 468) that the effect of the provision is that: ' any future State law which purports to extinguish native title contrary to the Act is inoperative by reason of s 109 of the Constitution ' . (Emphasis added.) 35 The Native Title Act Case was decided before the NTA was extensively amended in 1998. The amendments include the insertion of Div 2B of Part 2 into the legislation, which provides for confirmation of past extinguishment of native title. In its original form, s 11(2) provided that legislation enacted after 1 July 1993 by the Commonwealth, a State or a Territory, could only extinguish native title in accordance with Div 3 of Part 2 (which deals with future acts) or by validating past acts in relation to native title. Following the 1998 amendments, s 11(2) provides that legislation enacted in accordance with Div 2B of Part 2 of the NTA is one of the permissible means by which native title can be extinguished after 1 July 1993.


case_text: Division 2B of Part 2 of the NTA was inserted by the NTAA 1998 and came into force on 30 September 1998. Division 2B is intended to confirm past extinguishment of native title by certain acts which were valid and which were not struck at by the RD Act : Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (' Ward (HC) ') at [8]. Such acts include those which predated the RD Act, such as the pastoral leases over the Application Area, and those which have been validated by the NTA (including by the operation of Div 2 of Part 2 and its State and Territory analogues). Division 2B confirms that certain acts attributable to the Commonwealth that were done before 23 December 1996 completely or partially extinguished native title: s 23A(1). The acts having that effect may be: (a) 'previous exclusive possession acts' (involving, for example, the grant of freehold estates or leases conferring exclusive possession); or (b) 'previous non-exclusive possession acts' (involving, for example, grants of non-exclusive pastoral leases): s 23A(2), (3). 51 Division 2B allows the States and Territories to legislate, in respect of 'previous exclusive possession acts' and 'previous non-exclusive possession acts' attributable to them, for the extinguishment of native title in the same way as is done under Div 2B for acts attributable to the Commonwealth: s 23A(4). The Territory has enacted such legislation: Validation Act , Parts 3B, 3C. 52 Section 23J of the NTA (within Div 2B) provides as follows: ' 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. Commonwealth acts (2) If the act is attributable to the Commonwealth, the compensation is payable by the Commonwealth. State and Territory acts (3) If the act is attributable to a State or Territory, the compensation is payable by the State or Territory.' (Emphasis added.)


case_text: Sections 9L and 9M of the Validation Act correspond to s 23G of the NTA . Section 23G was introduced by the NTAA 1998 , but was amended in the course of its passage through Parliament. The Supplementary Explanatory Memorandum to the Native Title Amendment Bill 1997 (No 2) ('Supplementary EM') , circulated with the authority of the Prime Minister, explained the provision as follows: 'Paragraph 23G(1)(a) in the [existing] Bill provides that native title is partially extinguished by a previous non-exclusive possession act attributable to the Commonwealth. This reflects the Government's view that at common law the grant of an interest by the Crown extinguishes any native title the continuance of which is inconsistent with the grant: see Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 at 243. That is, native title is extinguished to the extent of any inconsistency with the Crown grant. Of course, it is for a court to determine to what extent native title rights and interests are inconsistent with the grant. This is still the Government's understanding of the common law. There is however an opposing view of the common law. That view is that the grant of a non-exclusive possession title, such as a non-exclusive pastoral lease of the kind involved in Wik, does not extinguish native title rights and interest [sic] that are inconsistent with the grant; rather, the inconsistent native title rights are merely suspended while the non-exclusive possession title is in force. This is not the Government's understanding of the common law. However, the Government has agreed to leave this issue to be finally determined by the common law. Paragraph 23G(1)(b) confirms that the grant of a non-exclusive possession agricultural or non-exclusive possession pastoral lease will extinguish any native title rights and interests that are inconsistent with the grant if that is the position at common law. If however the position at common law is that a non-exclusive possession agricultural lease or non-exclusive possession pastoral lease does not extinguish any inconsistent native title rights and interests, but merely suspends them while the lease is in existence, then subparagraph 23G(1)(b)(ii) ensures that the inconsistent native rights and interests are suspended for the duration of the lease (including as renewed etc).' 551 Section 23G(1)(b) of the NTA gives effect to the Government's intention. It applies to the extent that a previous non-exclusive possession act (in this case, the pastoral lease) involves the grant of rights and interests that are inconsistent with native title rights and interests. If, apart from the NTA, the act extinguishes native title rights and interests, those interests are extinguished (s 23G(1)(b)(i)). However, if the act, apart from the NTA , does not extinguish native title rights and interests, those rights and interests are nonetheless suspended for the duration of the lease (s 23G(1)(b)(ii)). Section 9M(1)(a) of the Validation Act corresponds to s 23G(1)(b)(i) of the NTA, while s 9M(1)(b) corresponds to s 23G(1)(b)(ii). 552 Insofar as the applicants contend that they have native title rights to control access to the land and the use and enjoyment of the land, and that those rights survived the grant of the pastoral leases, they must confront the reasoning adopted in Ward (HC) . The starting point for present purposes is the determination made by the Full Federal Court in that case (reproduced in Ward (HC) , at [47]). The determination declared (par 5) that the native title rights and interests over a part of the determination area included: '(a) a right to possess, occupy, use and enjoy the land; [and] (b) a right to make decisions about the use and enjoyment of the land'. The rights and interests were said (par 9) to be 'not exclusive of the rights and interests of others'. 553 The joint judgment in Ward (HC) noted (at [49)] that there was a tension between pars 5(b) and 9 of the determination. Their Honours said that: '[i]dentifying the content of a right to make decisions about use and enjoyment of land that is not exclusive of the rights of others in that regard is not easy. Providing that, to the extent that any inconsistency exists, native title rights and interests must yield to the rights of others does not help in identifying the content of a non-exclusive right to make decisions about use and enjoyment.' Their Honours also pointed out (at [52]) that without a right as against the whole world to possession of land: 'it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put'. 554 In considering whether the rights granted by the Western Australian pastoral leases were inconsistent with claimed native title rights and interests, the joint judgment in Ward (HC) reached the following conclusions (at [192], [194], [422]): 'These [pastoral leases] were acts involving the grant of rights and interests inconsistent with so much of the native title rights and interests as stipulated for control of access to the land the subject of the grants. The pastoral leases were acts attributable to the State which denied to the native title holders the continuation of a traditional right to say who could or who could not come onto the land in question. That consequence flowed apart from the provisions of the State Validation Act. It followed that to that extent the grants of pastoral leases extinguished native title rights and interests within the meaning of par (b)(i) of s 12M(1) [the equivalent to the Validation Act, s 9M(1)(a)]. ... The right to control access apart, many other native title rights to use the land the subject of the pastoral leases probably continued unaffected. For example, the native title right to hunt or gather traditional food on the land would not be inconsistent with the rights of the pastoral leaseholder although, as stated in par (a) of s 12M(1) [the equivalent to the Validation Act, s 9L], the rights of the pastoral leaseholder would "prevail over" the native title rights and interests in question. On the other hand, for the native title holders to burn off the land probably would have been inconsistent with the rights granted to the pastoral leaseholder, so as to bring about extinguishment as identified in par (b)(i) of s 12M(1). ... The right to be asked permission to use or have access to the land was inconsistent with the rights asserted under the various pastoral leases. Therefore, independently of any operation of the Territory Validation Act, the consecutive pre-RDA grants of the pastoral leases extinguished this native title right. Paragraph (a) of s 9M(1) of the Territory Validation Act thus was attracted and the relevant native title right extinguished.' 555 These conclusions accord with the approach taken in the Yarmirr (HC) . In that case, it was held that there was a 'fundamental inconsistency' between the asserted native title right to exclude all others from the waters of the claim area, on the one hand, and the common law public rights of navigation and fishing, on the other (at [98]). An assertion of sovereignty which conceded the public rights was: 'not consistent with the continuation of a right in the holders of a native title right to the area for those holders to say who may enter the area' (at [99]). The inconsistency lay not merely in the competing claims to control entry to the claim area, but in the expression of that control: 'by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights' (at [100]). 556 The inquiry must commence with the question of fact posed by the NTA: 'what are the rights and interests in relation to land or waters which are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples?' Yarmirr (HC) , at [15]; Ward (HC), at [94]. The rights and interests are those capable of being possessed under traditional laws and customs and need not correspond with common law conceptions of property: Yorta Yorta (HC) , at [40]. Such rights and interests owe their origins to a normative system other than the legal system of the new sovereign power (the Crown). That is, native title rights and interests owe their origins to the traditional laws acknowledged and traditional customs observed by the relevant indigenous peoples: Yorta Yorta (HC) , at [37]. 557 It is therefore a mistake to assume that native title rights and interests are to be expressed in common law terms. For example, it is productive of error to speak of native title rights and interests in terms of 'possession'. As was said in Ward (HC) , at [89]: 'to speak of "possession" of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms'. 558 Although the right to be asked for permission to enter or use the land and to speak for country is a core concept in traditional laws and custom, it is not an exhaustive description of the rights and interests in relation to land that exists under those laws and customs: 'It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. To speak of Aboriginal connection with "country" in only those terms is to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer'. Ward (HC) , at [90]. 559 Curiously enough, it is this core concept of a right to be asked permission and to speak for country that made native title 'inherently fragile' before the enactment of the NTA. As was said in Ward (HC) , at [91]: 'The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. But because native title is more than the right to be asked for permission to use or have access (important though that right undoubtedly is) there are other rights and interests which must be considered, including rights and interests in the use of the land'. The joint judgment also observed (at [94]) that there is particular scope for error: 'if a portmanteau expression used to translate those rights and interests ("possession, occupation, use and enjoyment ... to the exclusion of all others") is severed into its constituent parts and those parts are then treated as they would be in the description of some common law title to land.' It is doubtless for this reason that the applicants do not contend that their pleaded right against the whole world to possession, occupation, use and enjoyment of the claim area is consistent with the rights granted by the pastoral leases. 754 In Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (' Wik '), a majority of the High Court held that certain pastoral leases in Queensland did not confer a right to exclusive possession on the lessees and thus did not necessarily extinguish all incidents of native title. The decision in Wik was thought by many to be inconsistent with the assumptions underlying the NTA . In particular, the recitals to the NTA recorded that the High Court in Mabo (No 2) had: 'held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates '. (Emphasis added.) 755 On 8 May 1997 the Government announced a '10 Point Plan' as its response to Wik . The Native Title Amendment Bill 1997 (' NTA Bill 1997' ), which was introduced into the House of Representatives on 4 September 1997, was designed to implement the 10 Point Plan. 756 The NTA Bill 1997 was passed by the House of Representatives on 29 October 1997. The Senate subsequently passed the Bill but amended it extensively. The Bill was reintroduced into the House on 9 March 1998. Many of the Senate's amendments were accepted by the House of Representatives and the NTA Bill 1997 was amended to incorporate these changes. It was this version of the NTA Bill 1997 to which the 1997 Explanatory Memorandum was directed. 759 The 1997 Explanatory Memorandum noted that Div 2B confirmed the effect on native title of various types of Commonwealth acts done before 23 December 1996 and that the legislation attempted to reflect the Government's understanding of the common law of native title after Wik (par 5.1). It also noted that Div 2B permitted the States and Territories to confirm the effect of acts they had done prior to 23 December 1996. The 1997 Explanatory Memorandum continued as follows: '5.2 Generally speaking, the existing NTA only provides a framework for dealing with native title. The NTA currently says little about whether or where native title may still exist in Australia, and apart from the very limited validation provisions in Division 2 of Part 2 , says nothing about whether native title may or may not have been extinguished. The NTA generally leaves these issues to be determined by the common law. This has given rise to significant uncertainty for native title claimants and the holders of other interests in land. 5.3 The purpose of the proposed amendments dealing with confirmation of extinguishment of native title is to limit this uncertainty. The effect will be to confirm that the native title is extinguished on exclusive tenures (such as freehold and residential leases) and extinguished to the extent of any inconsistency on non-exclusive agricultural and pastoral leases. Consistent with the Wik decision, the rationale for such confirmation is that the rights conferred and/or the nature of the use of the land is such that the exclusion of others (including native title holders) must have been presumed when the tenure was granted. The amendments will put the matter beyond doubt.' 760 Paragraph 5.28 of the 1997 Explanatory Memorandum addressed the effect of confirmation of extinguishment on the provisions dealing with past acts, as follows: 'If native title has been extinguished by a previous exclusive possession act or a previous non-exclusive possession act, the provisions that deal with the effects of past acts... on native title do not apply [subsections 23C(3) and 23G(3) ... ] . These provisions [included] existing section 15 of the NTA ... Subsections 23C(3) and 23G(3) ensure that there is no overlap between the provisions that extinguish native title. For example, the non-extinguishment principle applies to the grant by the Commonwealth of freehold validated under Division 2 if it was no longer in existence on 1 January 1994 (see subsection 229(2) and section 232) but by reason of s 23C(1) , the native title will now be taken to have been extinguished by that grant.' (Emphasis in original.) 761 The example given in the last sentence of par 5.28 refers to s 15(1)(d) of the NTA , which provides that the non-extinguishment principle applies to a category D past act. A category D past act includes the grant of a freehold estate, where the grant was made before 1 January 1994 but the estate did not exist on 1 January 1994: s 229(2)(a) , (4). Section 23C(1) provides that a previous exclusive possession act (which includes the grant of a freehold estate validated under Div 2) extinguishes native title and does so from the date the act was done. As par 5.28 implies, the effect of s 23C(3) is to exclude s 15 of the NTA from applying to the previous exclusive possession act notwithstanding that it was also a past act. Thus the non-extinguishment principle does not apply to the category D past act.


case_text: The effect of the statutory exceptions to indefeasibility was that a wide range of unregistered interests in land received protection from what otherwise would be the indefeasible title conferred on the first registered proprietor of the fee simple estate, by virtue of s 69 of the Real Property Act . The following interests were protected from s 69 of the Real Property Act : the interest of any person in adverse possession of the land (or part of it); an 'omitted' easement (which expression encompasses an easement which is simply not on the register: Dobbie v Davidson (1991) 23 NSWLR 625, at 627; Williams v State Transit Authority of NSW [2004] NSWCA 179 ; (2004) 60 NSWLR 286 at [105] [109], per Mason P); the interest of a proprietor of land included in a certificate of title by wrong description; public rights of way and easements enjoyed by the public; and a short-term lease held under an unregistered instrument or agreement.


case_text: In any claim for determination of native title, or for compensation for loss or impairment of native title rights and interests, the NTA is 'determinative': Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta (HC) ') , at [32], [70]. Accordingly, even if native title was extinguished under common law rules which are taken to have applied prior to the commencement of the NTA , it is still necessary to consider the application of the statute (and its State and Territory counterparts) to any act said to have extinguished native title: Wilson v Anderson [2002] HCA 29 ; (2002) 213 CLR 401 , at [45]-[47], per Gaudron, Gummow and Hayne JJ. 53 In Wilson v Anderson , Gaudron, Gummow and Hayne JJ observed (at [51]) that s 23J(1) of the NTA : '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) ... and is subsequently validated by s 14 of the NTA or s 8 of the State Act [equivalent to s 4 of the Validation Act ]. However, s 23J also may be attracted in respect of a valid "act" which, although satisfying the definition of "previous exclusive possession act", would not completely extinguish native title at common law. That a different result may be reached under Div 2B of Pt 2 of the NTA or Pt 4 of the State Act [equivalent to Parts 3B and 3C of the Validation Act ] emphasises the point that it is the statutory criteria provided for by those provisions which are to be applied when determining issues of extinguishment.' (Emphasis added.) 54 Section 10(1) of the RD Act (the terms of which are reproduced at par 102, below) may operate to confer a right to compensation upon native title holders where a State or Territory law has failed to make the right universal by denying it to the native title holders. For example in Ward (HC) , the High Court held (at [253]) that s 10(1) of the RD Act conferred a right to compensation on native title holders for the loss of their rights by the creation of a reserve pursuant to a State statute. The RD Act conferred a right to compensation because under State law the only interests that were destroyed without compensation by the creation of the reserve were those of the native title holders. In such circumstances, the creation of the reserve was valid and could not be a 'past act' validated by legislation corresponding to Div 2 of Part 2 of the NTA . The effect of s 10(1) of the RD Act , however, was that the native title holders were entitled to compensation. 55 Section 45 of the NTA is concerned with a right to compensation which arises in such circumstances. It provides as follows: '(1) If the Racial Discrimination Act 1975 has the effect that compensation is payable to native title holders in respect of an act that validly affects native title to any extent, the compensation, in so far as it relates to the effect on native title, is to be determined in accordance with section 50 as if the entitlement arose under this Act. Recovery of compensation (2) If the act took place before 1 January 1994 and is attributable to the Commonwealth, a State or a Territory, the native title holders may recover the compensation from the Commonwealth, the State or the Territory, as the case requires.' 560 A number of other propositions were endorsed in Ward (HC). They were recently summarised in De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (' De Rose (FC) (No 2) '), at [145], as follows: (the references are to paragraphs in Ward (HC) ). '(i) Native title rights and interests are properly to be seen as a bundle of rights, the separate components of which can be extinguished separately (at [76]-[77]). (ii) Where a grant of rights in land is made pursuant to statute, the question (so far as extinguishment is concerned) is whether the rights are inconsistent with native title rights and interests in respect of the land [(at [214])]. This is an objective inquiry which requires identification of and a comparison between two sets of rights, one deriving from traditional laws and customs and the other from 'the new sovereign authority that came with settlement' (at [78], [82]). Reference to the use of land is relevant only to the extent that it focuses attention upon the rights pursuant to which the land is used (at [78]). (iii) Rights held under an interest in land less than a fee simple estate, such as a lease, can be inconsistent with the continued existence of native title rights and interests and therefore can extinguish them (at [80]). (iv) There is no such thing as degrees of inconsistency of rights: "Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency ... Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise " ( at [82]). (Emphasis added.) (v) Section 23G(1)(b)(i) of the NTA contemplates that a previous non-exclusive possession act, such as a pre- RD Act pastoral lease, may grant rights and interests that are inconsistent with native title rights and interests and extinguish the latter (at [192]; see, too, Wilson v Anderson, at [46]). Where that occurs, no question of suspension of native title arises. (vi) Section 23G(1)(b)(ii) of the NTA addresses the case where there is an inconsistent grant of rights which, apart from the NTA and its State [or Territory] counterpart, would not extinguish native title rights and interests. The example given is a post-1975 grant which, by operation of the RD Act , was ineffective to extinguish native title rights and interests (at [82]). (This seems to involve reading the expression "the grant of rights" in s 23G(1)(b) as including a purported grant, given that the RD Act would, apart from the NTA , presumably render the grant invalid.)' To these six propositions derived from Ward (HC) two others can usefully be added: (vii) Reference to the use of land in the context of extinguishment may distract attention from the true inquiry, namely whether rights have been created in third parties that are inconsistent with native title rights and interests. Use of land may suggest, or even demonstrate, that such rights have been created, but the basic inquiry is about inconsistency of rights, not use (at [215]). (viii) The metaphor of a 'bundle of rights' is useful in two respects: 'It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom' (at [95]). (Emphasis added.) 769 This view receives support from the observations concerning s 23J made by Gaudron, Gummow and Hayne JJ in Wilson v Anderson . Their Honours said this (at [51]): '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 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) ... and is subsequently validated by s 14 of the NTA or [equivalent State or Territory legislation] . However, s 23J also may be attracted in respect of a valid "act" which, although satisfying the definition of "previous exclusive possession act", would not completely extinguish native title at common law. That a different result may be reached under Div 2B of Pt 2 of the NTA or Pt 4 of the State Act emphasises the point that it is the statutory criteria provided for by those provisions which are to applied when determining issues of extinguishment'. Their Honours' observations proceed on the basis that s 23J of the NTA creates an entitlement to compensation in cases where an act is invalid by reason of the RD Act but is subsequently validated by s 14 of the NTA or a State or Territory counterpart. Such an act presumably would be a 'past act' as defined in s 228(2) of the NTA as well as a 'previous exclusive possession act' as defined in s 23B of the NTA. 770 This construction of Div 2B of the NTA does not leave Div 2 without any work to do. Not all past acts are previous exclusive possession acts for the purposes of Div 2B of the NTA. For example, the grant of an estate is not a previous exclusive possession act if the grant involves the establishment of a national park for the purpose of preserving the natural environment: s 23B(9A). Yet such a grant may vest a right of exclusive possession in the grantee which is capable of extinguishing native title rights and interests: Ward (HC) , at [258]. If the grant was invalid under the RD Act by reason of its effect on native title, it could be a past act (s 228(2)) and could be validated by s 14 of the NTA. The effect on native title of the grant would be determined by s 15 of the NTA and the entitlement to compensation would arise under s 17. 771 As Mr Hughston pointed out, this construction of Div 2B accords with what will often be the practical realities and avoids what otherwise would be strange consequences. Previous exclusive possession acts include grants of fee simple estates or leases and the construction of public works. Some of these acts may have been invalid when done by reason of the RD Act (and thus would have been 'past acts'), but this would not have been known at the time. The practical consequences of these acts usually would have included the de facto loss or impairment of native title rights and interests. It makes sense that any right to compensation in respect of the validation of those acts is to be determined as at the date the acts took place.