Raelene Webb'

1. NATURJ2 RESERVES AND NATIONAL PARKS IN THE EASTERN

KIMBERLEY AND NORTHERN l'ERRITORY
NATURE RESERVES, NATIONAL PARIeS AND
NATIVE TITLE AFTER WARD
Banister, Northern Territory
Keep River National Park comprises two arcas of land (NI Portion 1801 and NI Portion 3121) leased in
perpetuity to the Conservation Land Corporation (NT) ("the Corporation") in 1980 and 1987
respectively and managed by the Parks and \Vildlife Commission as a park.
Reserve 37883. Mirima National Park is a reserve created for the purpose of the national park in 1982
under the Land Act 1933 (WA), s 29 and now vested in the National Parks and Nature Conservation
Authority ("the Authority").
Reserve 31967 created in 1973 under the Land Act 1933 (WA), s 29 and now vested in the Authority.
Reserve 29541 created in 1968 illlder the Land Act 1933 (WA), s 29 and now vested in the Authority.
Reserve 34585 created in 1982 under tho Land Act 1933 (WA), s 29 and now vested in the Authority.
Reserve 42155 created in 1992 under the Land Act J933 (WA), s 29 and now vested in the Authority.
4
5
6
In the remote East Kimberley region of Western Australia and the Northern Territory substantial
areas of land and waters are established as reserves and parks for conservation purposes- To the
east of KununulTa, just over the Northern Territory border, is Keep River National Park] noted for
its Sl1iking landfonns and rugged terrain. Two kilometres from the centre of Kummurra is Mirima
(Hidden Valley) National Park
2
, featming impressive sandstone hill and valley fonnations. North
of Kunullurra, an area of nmdflats and inter-tidal zone on the eastern and Ilorthern edges of the
Cambridge Gulf is reserved for eonservatioIl purposes
3
. Pelican Island Nature Reserve," ten
kilometres off the northern coast, is reserved as a wildlife sanctuary. Other reserves in the East
Kimberley region include Point Spring Nature Reserve
5
and a reserve incorporating the Goose Hill
area
6
, both established for the "conservation of flora and fauna". This latter reserve replaced Palm
It is doubtless the case that nature reserves and national parks are areas where Aboriginal people
may continue to undertake activities in accordance\vith their laws and customs. Prior to the
decision ofthe High Court in Western Australia v Ward on 8 August 2002. the effect on native title
rights and interests of the creation of nature resen'es and national parks and applicable
conservation legislation was considered minimal. That position no longer pertains_ Nature
reserves and national parks must now be understood as having an e;r;tinguishing effect on native
title equivalent at least to that (fpastoral leases. Where nature reserves and national parks are
vested in a conservation authority. extinguishment may be total. Nevertheless, these areas may
well be administered in a manner consistent with ongoing Aboriginal cultural activities on the
land. Ewm as a matter of Imr, "native title" as defined in the NTA has been extinguished,
cooperative arrangements whereby Aboriginal people are involved in the management of nature
resenes and national parks "Hiill help preserve the cultural heritage ofAboriginal people as well
as conserving the natural environment.
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(2002) 21 AMPLJ Nature Reserves, National Parks and Native Title after Ward 283
Springs Nature Reserve
7
for "protection of flora and fauna" and Parrys Lagoon Nature Reserve
8
for "conservation of falUla". All of these reserves are "nature reserves" for the purposes of s 23 of
the Wildlife Conservation Act 1950 (WA)9 which provides that:
"nature reserve" means land reserved to Her Majesty, or disposed of, lUlder the Land Act
1933 or any other Act, for the conservation of flora or fauna.
The national parks and nature reserves identified comprise slightly more than one fifth
10
of the
area of land and waters in the north of \Vestern Australia and adjacent land in the Northern
Territory in respect of which the Miriuvvung and Gajerrong people sought a determination of
native title. Members of three subgroups of the Miriuwung and Gajerrong people, the Bindjen,
Nyawamnyawam and Dumberal estate groups, also claimed native title rights and interests in the
Northern Territory portion of the claim comprising Keep River National Park.
National parks are areas of public land set aside for conservation purposes and which members of
the public may also access and enjoy. Such parks often contain areas of significance to Aboriginal
people. For example, in Keep River National Park there are art sites, rock carvings, shell middens
and bird traps of cultural importance to "traditional owners".11 Similarly Mirima National Park
has rock paintings, engravings, grinding stones and stone tool-making sites, as well as sites of
Dreaming stories
12
. Historically there is no doubt that the rugged terrain ofpJaces such as Mirima
National Park and Keep River National Park provided a physical retreat for Aboriginal people
after the advent of European settlement, allowing small groups to maintain a nomadic lifestyle and
avoiding the '\vhite man" as late as the 1930s
13

Because nature reserves are intended to conserve the natural values of an area, in particular flora or
fauna, use by the public is usually restricted in some manner. The likely abundance of flora and
fauna in nature reserves increases the significancc of these areas to Aboriginal pcople as hunting
and foraging grounds. Types of wildlife and landscape found in the nature reserves in the area
claimed in the East Kimberley include:
(a)
(b)
(c)
8
9
10
11
12
13
14
15
16
mangrove wetlands and wildlife, including salt-water crocodile and migratory birds; 14
a rare species of wallaby and a colony of bats, together with a spring and a small area of
rain forcst;15 and
a peli can breeding area. J6
Reserve 30866 created in 1971 under the Land Act 1933 (WA), s 29 and now part of Reserve 42155.
Reserve 31636 created in 1972 under the Land Act 1933 (WA), s 29 and now part of Reserve 42155.
Western AustraTia v Ward (2000) 99 FCR 316 at [496].
Compare the total claim area of 7900 sq km with approximately 1769 sq km set aside as parks and
nature reserves.
Ward v }Vestern Allstralia (1998) 159 ALR 483 at 543.
At 544.
At 516.
Reserve 31967.
Reserve 34585.
Reserve 29541.
2. THE FlNDl.NGS OF TI-IEFIJUL COURT OF THE FEDI',RAL COURT
The relevant findings of the Full Court are here sunm1arized.
Despite the vastness of the AustTalian landscape, development has encroached upon, and critically
reduced, the arcas which Aboriginal people can access as of right and use for traditional purposes,
including hunting and foraging. National parks, in particular, conserve not only the landscape and
nature, they also play a significant role in protecting Aboriginal cultural activities vvhich are often
promoted as attTactions for tourists.
(2002) 21 AlvIPU Anicies
The mere reservation ofIand did not extinguish native title.
21
The. vesting of reserves confenec1 pov'lers of control and management for the purposes of
the reserve. Furthel' extinguishment <.lepended upon the actual use of the
Reservation and dedication ofJvlirima National Park, to the extent that it created rights in
the public, would have the effect of extinguishing exclusivity of native title lights to
possess, occupy, use and enjoy.23
The exercise of contTol by the AuthOlity over nature reserves and wildIife sanctuaries
evidenced a clear and plain intention to control access and make decisions regarding
JBasten QC, Recent Developments in Native Title Lm1' and Practice.- for the High Court, in Land,
Rights, Laws.- Issues a/Native Title 2 (13) February 2002:1-12. at 11.
Ibid.
(2000) 99 FCR 316 at [389J per Beaurnont and van Doussa .TJ.
(2002) 76 ALJR 1098.
Ward v Western Australia (2000) 99 FCR 316 at [389J.
At [389], [391] and [455J ff.
At [446].
(d)
(c)
1.7
(a)
(b)
18
19
20
21
n
23
284
It is not surprising therefore that native title claimants and their lawyers considered that resolution
of questions concerning the efFect of national parks and nature reserves on native title not only had
symbolic importance, but was also of practical significance. In particulaT, the question of
accommodating within a native title determination "co-existing non-native title lights" was
identified as an issue for the High Comi by one commentator in the context of national parks and
reserves 17. The question there posed \vas whether a public right of access to a national park
impairs what might othenvise be a right to exclusive possession held by native title holders, or
whether it is a right created by law to which an othenvise exclusive native title subjected?ls The
underlying presumption was that the creation of a national park or nature reserve is not
inconsistent with the continued enjoyment of native title ligllts and interests, including a right to
make about the use and enjoyment of the land. That presumption accorded with the
vievY of the majority ofthc Full Court of the Federal Court in Ward v Western Australia
J9
that the
mere reservation of land did not extinguish native title. That underlying presumption can no longer
be maintained in view of the decision of the High Court in Western Australia v handed
down on 8 August 2002.
(2002) 21 AMPU Nature Reserves, National Parks and Native Title after Ward
285
(e)
(f)
(g)
(h)
3.
human activities on the land, thereby extinguishing the exclusivity of native title rights to
"4
control access and to possess and occupy the land:
Stringent regulations controlling and regulating activities that may be carried out on the
land did not extinguish those native title rights; regulations permitting otherwise
prohibited activities left room for the accommodation of customary Aboriginal
. ~ .
prae1]ees.
In all nature reserves or wildlife sanctuaries created in the determination area before the
commencement of the RDA, native title rights to take flora and fauna have been wholly
extinguished.
26
The declaration of Keep River National Park and vesting in the Corporation did not effect
a vesting of fee simple and did not extinguish native title.
27
Leases granted in perpetuity to the Corporation had no greater extinguishing effect than
the previous grant of pastoral leases 'which had extinguished the exclusivity of native title
rights and interests and the right to make decisions about the use of the land for pastoral
28
purposes_
THE FINDINGS OF THE HIGH COUHT
The decision of the High Court as to the effect of nature reserves and national parks on native title
departs significantly from the conclusions reached by the majority of the Full Court. With respect
to reser-les generally the High Court hcld as follows:
(a)
(b)
24
25
26
27
ZS
29
30
Reserving land inWestem Australia pursuant 10 the Land Acts was inconsistent with any
continued exercise of power by native title holders to decide how the land could or could
not be used, but not necessarily inconsistent with thc right to continue to use the land
according to traditional laws and customs.
29
Whether a native title right to use a reserved area continued unextinguished depends on
other considerations, particularly what, if any, rights in others were created by the
reservation or later exerted by the executive, not the way in which they may have been
exercised from time to time.
3o
At [508].
Ibid.
Ward V Western Australia (2000) 99 FCR 316 at [504].
At [353] - [355],
At [356].
Western Australia v Ward (2002) 76 ALJR 1098 at [219] and [468.12]: compare with Ward v Western
Australia (2000) 99 FCR 316 at [389].
Western Auslmlia v Ward (2002) 76 ;\LJR 1098 at [220] and [234]: compare with Ward v Western
Australia (2000) 99 FCR 316 at [391] and [455]ff.
4, THE EF'FECT OF n.ESERVATION
Those findings extend also to nature reserves and to tile reservation of l'vIirima National Park
33
.
Relevant to subparagraph Cb) above it should be noted that the High Court refused special leave to
appeal against the finding of the majority of the Full Court that any native title right or interest to
hunt or gather over land in a nature reserve created before the conunencement of the Racial
Discrimination Act 1975 (Cth) ("IWA") was extinguished.]'1
The decision of the High Court in respect of Keep River National Park that the declaration of the
park in 1981 under s 12(1) of the TerritOlY Parks and FVildlife Conservation Act (NT) ("TNVCA")
was ultra vires, to the extent that there remained native title rights and interests at that datc
35
, tums
on the provisions of the relevant legislation. That issue aside, the High Court concluded that the
grant of leascs in perpetuity under the Special Purposes Leases Act 1953 (NT) and the CrOlvn
Land5 Act 1931 (NT) to a t,tatutory authority of the Crown to establish a Territory park, confened
a light of exclusive possession which was inconsistent with all native title rights and interests thcn
existing.
36
(2002) 21 AlvlPLJ Articles
The mere designation of land as a reserve for a certain purpose did not, without more,
create any rights in the puNic \vhich were inconsistent with native title rights.
3
]
The vesting ofland in a body or person lmc1er s 33 of the Land Act 1933 ('VITA) vests the
legal estate of fee simple and confers a right ofexcIusive possession.
32
Western Australia v Ward (2002) 76 ALm 109S at [221]: compare with Ward v TVestern /lus/ralia
(2000) 99 FCR 31 Gat [446].
Western Australia v Ward (2002) 76 A.LJR 1098 at [240] - [241] and [468.14]: compare with Ward v
Western Australia (2000) 99 FCR 316 at [390].
Western Australia v FVard (2002) 76 AUR J098 at [248].
Western Australia v IYard (2002) 76 /-\LJR 1098 at [246]. See also Ward v Western Australia (2000) 99
FCR 316 at [504].
Western Australia v Ward (2002) 76 ALJR 1098 at [458].
At [439].
At [219].
At [220].
37
33
36
]5
]]
33
34
31
(c)
A reservation of land under the relevant \Vestcrn Australian provisions was held by the High Court
to bc inconsistent with any native title right to be asked permission and to decide hovy land could
or could not be used, on the basis that the executive, pursuant to legislative authority, was
exercising a power to decide how the land eould be used.
37
The same reasoning applies to t11e
reservation of land for conservation purposes under other legislation. Any further question of
extinguishment of native title rights to use the land is lo be answered by having regard to
inconsistencies between the particular use o ~ and activities undertaken on, the land by native title
holders in accordance with traditional laws and customs and rights and interests created by the
reservation or later asserted by the executive.
3s
The extinguishing effect of conservation legislation
on native title rights to use nature reserves and national parks is considered further below.
(d)
286
(2002) 21 AMPLJ Nature Reserves, National Parks and Native Title ajter Ward 287
\V11cre nature reserves and national parks have been created prior to the commencement of the
RDA, any native title right to control the use of, or access to, the land has been extinguished at
COnm1on law. In the case ofreserves and parks created after 31 October 1975, consideration must
be given to the operation of the RDA. Different considerations arise depending on whether or not
any native title right to make decisions about hmv the land could or could not be used bad already
been extinguished, for example, by the grant of pastoralleases
39
or by the creation of previous
reserves.
If theoght of native title holders to coniTal the use of or access to land had already been
extinguished prior to 31 October 1975, subsequent establishment of a nature reserve or national
park would nol affect that right and no issue of discrimination ullder the RDA could arise in respect
of the reservation of the land.
4o
After the commencement of the RDA. the creation of a nature reserve or national park on land that
was always vacant Crown land, vvithout provision for compensation for the destruction of any
native title rights and interests, would be an "arbitrary deprivation of property" and would be
invalid
41
. If the act took place before 1 January 1994, it would be a "past act,,42 and validated by s
19 of the NTA and the relevant State or Territory validation provision as a category D past act.
The non-extinguishment principle would apply and native title rights to control access to and use
of the land would, in effect, be suspended for as long as the reserve or park remained.
43
Nature reserves or national parks established after 1 JanuaI-y 1994, or proposed for tlle future, on
land that has always been vacant Crown land and where native title persists will be invalid unless
the future act provisions of the NTA have been, or are, followed.
44
No question of a non-exclusive native title right to make decisions about nature reserves or
national parks can arise. Even if legislation which enables the creation of the reserve or park
provides for joint management (ie joint decision making) by native title holders and the Crown,
there remains an inconsistency with any native title right to control what does or does r.ot happen
on 111e land, if such a right existed at the relevant date. Whilst that native title right will remain
suspended for the duration of the reserve or park, the legislation itself confers a statlltory right to
make decisions about the land in the context ofj oinlmanagement ofthe reserve or park
5. THE EFFECT OF VESTING
Each of Reserves 29541 for Wildlife Sanctuary, and 31967, 34585 and 42155 for Conservation of
Flora and Fauna and Reserve 37883 for the Mirima National Park is vested in the Authority.45 By
that vesting the reserved land has been "dedicated" to the purpose for which the land was reserved,
39
40
41
42
43
44
45
At [222].
Ibid_
Ibid.
See NTA, s 228(2).
"IVes/ern Australia v Ward (2002) 76 ALJR 1098 at [222]; NTA, ss 15(1), 19, 238. See also relevant
provisions of State or Territory validaling legislation.
Scc Subdivision M ofDivisian 3 afFart 2, l'lTA.
rVestem A.ustralia v Ward (2002) 76 AUR 1098 at [231].
TIle result is that the vestings, after 31 October 1975, of Reserves 34585,37883 and that part of
Reserve 42] 55 crcated in ] 992 arc valid but the RDA conferred on native title holders a right of
compensation under the State law. By the operation of s 45(1) of the NTA, that right to
creating a "statutory trust", .compliance with which could be enforced by the AttOIl1cy-Genera1.46
The High Court held that vesting a reserve in a body or person to be held for a particular purpose
having a public clement was to confer on that body or person an estate in fee simp]e.47
As with the establislmlent of a nature reserve or national park, in detemlining the effect of the
'lesting on native title temporal questions arise. In the case under consideration, current Reserves
29541 and 31967 and Reserves 30866 and 3] 636 (novY subsumed by Reserve 42155) are a]] natme
reserves established and vested in the Authority or its predecessor prior to the commencement of
the RDA. lnrespect of those nature reserves, a]] native title rights and interests have been
extinguished by the vestings which conferred exclusive possession and were inconsistent with 111e
continued existence of any native title rights and interests in the land.
4s
(2002) 21 Nv!PU Articles
At [241].
At [241] and [244].
At [249].
In the present case, Reserves 34585, 37883 & that part of 42155 created in 1992.
Land Act 1933 (WA), s 11. Sec Western Australia v Ward (2002) 76 ALJR 1098 at (250).
IYesfern Australia v Ward (2002) 76 L-\LJR 1098 at [251].
At [108]. See Gerhardy v Brown (1985) 159 CLR 70 at 98 per Mason .T, passage set out in Western
Australia v Ward (2002) 76 ALJR 1098 at [lOG].
4G
47
48
49
50
51
5Z
For those nature reserves and national parks established and vested in a body or person after the
commencement of the RDA
49
, other considerations alise. Close attention to the reievant Icgislation
is required to ascertain whether its practical operation results in different treatmcnt of nativc title
rights and interests and non-native title rights and interests. In the casc of the Land Act 1933 (WA)
provision was made for certain non-native title interests to be resumed for purposes of reservation
under s 29 of the Act, with an entitlement to compensation for that resumption. 50 The result is
that, if as a step to creating a reserve 311d the subsequent vesting, it was necessary to bring to an
end any of the non-native title interests which could be resumed, the holder of that interest was
entitled to compensation. That consequence flovved from the terms of the grant.:5i As the Land Act
1933 (WA) provided for extinguishment of land titles but compensation was available only for
non-nati ve title, the effect of s 10(1) of the RDA was to provide a right of compensation to native
title holders for the extinguishment of their native title, without invalidating the extinguishing
,0
a c t . - ~
288
This vesting of an estate in fee simple in a body or person with responsibilities for control and
management of the nature reserve or national park is to be contrasted with placing a reserve or
park under the control or management of a body or person. In the case of the vesting, exclusive
possession is conferred which is inconsistent with any native title rights, including rights to use the
land which were not extinguished by the reservation. In the case of conferring control and
management, the inconsistency goes no further than does the cstablisll1nent of the reserve or park;
that is, inconsistency with any native title right to make decisions about use of and access to the
land.
(2002) 21 AMPLJ Nature Reserves, National Parb and Native Title aj/er Ward 289
compensation becomes a right to compensation to be determined in accordance with the NTA.
53
Having concluded that the vcsting of a reserve creatcd under the Land Act 1933 (WA) after 31
October 1975 was not invalid by the operation of the RDA, the necessary consequence of the
vesting is that it is not a "past act" requiring validation by the State validating legis1ati OD_ 54
Where the conclusion is reached that a vesting of a nature reserve or national park after the
commencement of the RDA is valid, the operation of Division 2B of Part 2 of the NTA and the
corresponding provisions of the State or Territory validating legislation require consideration to
ascertain ,,,hether there is any further extinguishing effect under the statute. Section 23B(2)(c)(ii)
provides that an act which c;msists of the valid vesting of a freehold estate
55
taking place on or
beforc 23 December 1996 is a "previous exclusive possession act". If the vesting confers a right
of exclusive possession, s 23B(3) of the NTA provides that the vesting is taken to be the vesting of
a freehold estate for the purposes of s 23B(2)(c). Thc result is that a valid vesting, on or bcfore 23
Dccember 1996, of a naturc reserve or national park will prima facie fall within the definition of
"previous exclusive possession act" in s 23.8(2) ofthe NTA.
However, it is necessary also to consider the operation of provisions which exclude ccrtain acts
from that definition. Of relevance to nature reserves and national parks is s 23B(9A} of the NTA
which provides:
An act is not a previous exclusive possession act if the grant or vesting concerns the
establishment of an area, such as a national, State or Territory park, for the purposc of
preserving the natural environment of the area.
For the future, a consequence of the vesting of resen-esin any body or person conferring a right to
exclusive possession is that the valid creation of any natUTe reserve or national park, the
In summary, the High Court held that vesting of nature reserves and national parks confened a
right of exclusive possession and effected an extinguishment of any subsisting native title rights.
In respect of vestings after 31 October 1975,if compensation is provided for extinguislnnent of
non-native title then s 10(1) of the RDA confers a right of compensation on native title holders
whose rights have been extinguished. That compensation is to be dctemlined in accordance with
the NTA.
In the present case, the vesting of Reserves 34585, 37883 and that part of Reserve 42155
established in 1992 would be excluded from the definiti on of previous exclusive possession act in
s 23B of the NL'1 on that basis and the corresponding provisions ofthe State validating legislation
are not then relevant
56
Nonetheless, because the vesting of the right of exclusive possession was
valid in each case, all native title rights and interests in those Reserves have been extinguishcd
57
,
albeit that there is a right of compensation for that extinguishment.
Sce Western Australia v Ward (2002) 76 ALJR 1098 at [12]. The discussion of compensation payable is
beyond the seope of this flJ1:icle.
At [254].
Including because of the operation of Division 2 or Division 2A of Pt 2 of the NTA: see NTA,
s 23B(2)(a).
Western Australia v Ward (2002) 76 ALJR 1098 at [258].
Ibid.
56
57
54
55
53
6. THE EFFECT OF LEGISLATION
(2) The operation and cffcct of this Act is subject to the J\lative Title Act 1993 of the
Commonwealth.
establishment of which involves a vesting, requires compliance with the future act provisions of
the NTA, namely Subdivision M of Division 3 of Part 2.
(2002) 2J AMPU Articles
At [246]; Ward v Western Australia (2000) 99 peR 316 at [504].
See for example, Wildlife Conservation Act, ss 14(1) and 22; IYildlife Conservation Regulations. regs 42
and 46.
See Ten'itolJ! Parks and Wildlife Conservation Amendment Act 2000, s30.
290
60
This amendment reflects the requirement in s 11(1) of the NTA that native title is not able to be
extinguished contrary to that Act.
58
59
The High Court having concluded that the establishment of Westcm Australian nature reserves and
Mirima National Park extinguished all native title rights and interests, it was not thcn necessary to
consider the effect of legislation applying to those areas, save only to confirm the coueetness of
the finding by the majority of the Full Court that any native title right to hunt or gather over land in
a nature reserve created before 1975 was extinguished. ss
In those jurisdictions where nature rcserves and national parks are not vested in any body or
person and native title rights of use arc not necessarily extinguished, it will be important to give
close attention to the particular legislative provisions which apply to thosc areas to asccrtain the
impact upon, and inconsistcncy with, activities of native title holders undertaken in accordance
with traditional laws and customs. This cxercise cannot be done without clear and specific findings
as to the actual use and activities of native titleholders on reserves and parks. However there can
be no doubt that provisions intended to conserve the natural environmcnt and control use of natural
resources of the typo commonly applying in nature reserves and national parks will conflict to
some extent with any subsisting native title rights of use. This may still be so even \vhere1l1ore is
specific legislative provision permitting traditional use of the land by Aboriginals, for example,
prcvious s 122(1) of thc TPWCA which subject to s 122(2) which contemplated regulations for
conservation purposes which might expressly affect tTaditional use. Section 122 of the TPWCA
was amcnded in 2000 removing the qualification in previous subsection (2) and inserting the
following: 60
Whilst s 23(1) of the Wildlife Conservation Act 1950 (\\lA) authorized an AbOliginal person to
take flora and fauna from Crown land as an exception to othcrwise protective provisions,59 that
exception did not extend to nature reserves. In the case of nature reserves Aboriginal people,
along with all others, were prohibited from hunting and gathering.
(2002) 21 AMPU Nature Reserves, jVational Parks and Native Title ajier Ward 291
7. KERP RIVER NATIONAL PARK
7.1 The grant ofleascs in perpetuity
The area known as Keep River National Park comprises NTPortions 1801 and 3121 leased in
perpetuity to the Corporation in 1980
61
and 1987
62
respectively, and managed by the Parks and
Wildlife Commission as a park. Both leases were granted for the purposes of carrying out the
functions of the Conservation Commission (now the Parks and Wildlife Commission) and both
leases are subject to a covenant that the land ,vin be used only for the pUIposes for which it is
leased. The functions of the Parks and "\Vildlife Commission include:
G3
.
(a) promoting the conservation and protection of the natural environment;
(b) establishing and managing parks, reserves and sanctualies; and
(c) carrying out such other ftillctions as arc conferred on it by the Act
One such function is to have the care, control and management of all land acquired by the
Corporation.
64
In stark contrast to the deCision of the primary judge and the majority of the Full Court that the
grant of SPL 475 and CLF 581 to the Corporati on was in effect Iittl e different from the reservation
of Crown land for a public purpose, or the vcsting of powers of management and control,65 the
High Court held that t h t ~ leases conferred exclusive possession upon the Corporation
G6
The
consequence of the conferral of exclusive possession on the Corporation \vas inconsistency with
any surviving native title rights; subject to the operation of the RDA, those rights would be
extinguished
G7

Because the grants under the relevant legislation had effect only on native title rights, s 10(1) of
the RDA invalidated the leases.
68
The Corporation was held to be a statutory authority \vithin tbe
meaning ofthe definition of that tenn in s 253 oflhe NTA
69
Accordingly the leases were validated
by Territory validating legislation as Category D "past acts" such that the non-extinguishment
principle applied
7o
. Relevantly, as the grants were wholly inconsistent with the continued
existence, enjoyment or exercise of native title rights, the effect of s 238(3) of the NTA is that the
subsisting native title at the date of the grants continues to exist in its entirety, but the rights and
interests have no effect in relation to the grants.
7
i Because of the flndings of fact and the tenns of
the determination, the High Court was not able to reach a conclusion as to the totality of the native
61
62
63
64
65
66
67
68
69
7()
71
SPL 475 granted under the Special Purposes Leases Act 1953 (NT).
eLP 581 granted tillder the Crown Lands Act 1931 (NT).
Parks and Wildlife Commission Act (NT), s 19.
Parks and Wildlife Commission Act (NT), s 39(6).
Ward v Western Australia (1998) 159 ALR 483 at 563; FVestern Australia v Ward (2000) 99 FeR 316 at
[355].
Western Australia v Ward (2002) 76 ALlT\. 1098 at [433J and [439}-
At [439J.
At [441].
At[446J.
At [448J.
Ibid.
7.2 Declaration of Keep River National Park
In 1981 NT Portion 180I was purportedly declared a park pursuant to s 12(1) of the TPWCA. That
section provided that the Administrator may:
title rights extinguished by the grant of pastoral leases and the extent ofthe rights which survivecf2
which are, in effect, suspended for the term ofthe lease, that is, in perpetuity.
(2002) 21 AMPU Articles 292
(a) by notice in the Gazette, declare an area ofland in respect ofwhieh -
(i) all right, title and interest is vested in the Territory; or
(ii) no person, other than the Territory or the Corporation, holds a right,
title or interest,
to be a park or reserve.
The conclusion that any subsisting nati'l/e title rights are suspended for the duration of leases
granted in perpetuity, but not extinguished, has little, if any, practical consequence for
management of Keep River National Park. It does, however, have consequences in respect ofthe
declaration ofthe area subject to SPL 451 as a park.
No further extinguishment is effected by Division 2B of Part 2 of the NTA. As with vesting of
nature reserves after the commencement of the RDA, the grants to the Corporation involved the
establishment of an area as a Territory park for the purpose of preserving the natural environment,
thus excluding the grants from the definition of "previous exclusive possession aet".73 Unlike the
vestirig of a reserve which was valid and effective to extinguish native title at common law, the
grants of leases to the Corporation did not, apart from the NTA,have any extinguishing effect on
native title.
If, in 1981, there remained any unextinguished native title rights and interests, albeit suspended,
the power in s 12(1) could not be enlivened and the declaration was ultra vires
74
.
In 1998, s 12(1)(a) of the TPWCA was amended to provide that a declaration of a park or reserve
could be made, whether or not a person, other than the Territory holds a right, title or interest in
the land, including any native title rights and interests.
75
Provision was also made to override the
statutory vesting of land in the Corporation under s 12(7) by a declaration that the land declared a
park or reserve does not vest in the Corporation.
76
A further provision was inserted to the effect
that notwithstanding the declaration of the park or reserve, nothing in the TPWCA is to be taken to
72
73
74
7S
76
At [425J- Note that the comment at [448] that no conclusion can be reached as to whether the respective
grants to the Corporation were whony or partly inconsistent with the native title rights which survived
the grant ofpastorallcases is at odds witll the conclusion in [439].
See NTA, s 23(9A) and the corresponding provision in the Territory validating legislation. The grants
would also be excluded from that definition by the Territory equivalent ofNTA, s 23B(9C)"
WestemAustralia v Ward (2002) 76 ALJR 1098 at [458J.
See TerritolJ! Parh and Wildlife Conservation Amendment Act 1998, s 2 replacing ITVPCA, s 12(1 )(a).
Territory Parks and Wildlife Conservation Act, s l2(1)(aa).
(2002) 21 M1PU Nature Reserves, National Parks andNarive Title after Ward
affect or derogate from a right or interest of a person other than the Territory or the Corporation,
including any native title rights and interests.
77
The declaration of a park or reserve under the TPTVCA, without subsequent vesting in the
Corporation,would have the same effect on native title as the reservation of nature reserves. That
is, any subsisting native title right to control use of or access to the land would be inconsistent with
and affected by the Crown's exercise ofthe power to say how the land could be used.
What then is the effect of a provision stating that nothing in the TPWCA affects native title
consequent upon the declaration of a park? Where a declaration is made in respect of land which
has been subject to a pastoral lease, the effect of the provision may be to protect native title rights
to use the land. For example, regulations and by-laws made under the TPWCA which would
othenvise affect native title rights to use the land may not apply to native title holders. If a
declaration is made in respect of land vvhich has always been vacant Crown land, more difficult
questions would arise, possibly involving "co-existing" rights to make decisions about the land
and perhaps again raising questions as to the effectiveness of the declaration_ Given that almost all
of the Territory has, at some stage, been subject to the grant of a pastoral leasc, these questions
may well be academic.
8. CONCLUSION
The decision of the High Court as to the extinguishing effect of the reservation of and vesting of
national parks wiH not necessarily cxclude or limit the continuation of cultural activities in these
areas. For example, in Keep River National Park "cooperative and friendly arrangements" exist
between Territory and Aboriginal representatives in relation to management of the Park, indicative
of an intention to maintain, not destroy, the cultural practices of the Aboriginal people who live in
and around the arca
78
. Similar arrangements doubtless exist in other parks throughout Australia.
However, filture involvement of Aboriginal people in decision-making conceming nativnal parks
and nature reserves will not rely upon native title rights to make decisions about the land but will
depend upon joint management and similar cooperative arrangements.
The preservation and protection of the environment, including the cultural heritage of Aboriginal
people, is impOltant for all Australians, iuespective of whether continuing Aboriginal practices fan
witllin the legal definition of "native title" in s 223 ofthe NTA.
77
7S
Ierritory Parks and Wildlife Conservation Act, S 12(lA).
Western Australia v Ward (2000) 99 FeR 316 at [362].