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applications and plans" or "second working", the meaning of the phrase was well known in the coal industry. Longwall mining is one method used as a second working activity. MMC's July 2005 SMP application was therefore a second working application for the purposes of the Deed. Refusal of the SMP application would mean that MMC would be unable to apply for the required s 138 approval. HVCC's objection was therefore a breach of the Deed. By the time the appeal was heard by the Court, MMC had gained its SMP approval. HVCC argued that there was therefore no utility in making any of the orders sought. In rejecting this argument, the Court noted that the decision appealed against operates as an issue estoppel binding the parties to a particular construction of the Deed. HVCC was asserting this point in other proceedings against MMC relating to the Deed. The Court declared that HVCC breached the Deed and ordered that HVCC be restrained from making an objection to any further second workings applications by MMC for the extraction of coal from longwall panels 7-9 inclusive at the Glennies Creek Coal Mine. However the Court refused to order HVCC to withdraw the objection already made as that was considered futile.

NORTHERN TERRITORY PROOF AND EXTINGUISHMENT OF NATIVE TITLE IN NORTHERN TERRITORY TOWNS*

Griffiths v Northern Territory [2006] FCA 963 (Federal Court of Australia, Darwin, Native Title Applications NTD6016/99,NTD6008/00andNTD6012/00, 17 July 2006, Weinberg J). Aboriginals ­ Native Title ­ Native Title Act 1993 (Cth) ­ no evidence rights amounting to exclusive possession ­ application of section 47B Native Title Act 1993 (Cth) ­ relevance of principles of descent to finding of continuing tradition. There have been three native title decisions of the Federal Court handed down in the Northern Territory this year. Following on from the decisions of Mansfield J in Risk v Northern Territory1 and Sackville J in Jango v Northern Territory,2 Weinberg J has now handed down his decision in Griffiths v Northern Territory.3 The latest decision involves the small town of Timber Creek in the north west of the Territory on the banks of the Victoria River. The town is completely surrounded by land held under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.).

*

1 2 3

Raelene Webb QC, William Forster Chambers; and Matthew Storey, Senior Solicitor, NT Department of Justice. [2006] FCA 404 (Darwin). [2006] FCA 318 (Yulara). [2006] FCA 963 (Grifiths).


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The determination application was made on behalf of the Ngaliwurru and Nungali peoples and was for native title rights amounting to exclusive possession to various lots of vacant crown land in the town. One of the lots included the creek after which the town was named. Justice Weinberg handed down his decision on 17 July 2006. A determination reflecting his Honour's decision was made on 20 August 2006. The decision is notable in three respects. First, his Honour was of the view that while Ngaliwurru and Nungali peoples had differing languages they were "a society united in and by their acknowledgment and observance of accepted laws and customs", that society having existed at sovereignty and continued to the present.4 In finding that the Ngaliwurru and Nungali peoples constituted a single traditional society for the purposes of the Native Title Act 1993 (Cth) (NTA) which had had a connection with the claim area since sovereignty, Weinberg J rejected the Northern Territory's argument that a contemporary shift from patrilineal to cognatic descent principles constituted a fundamental break with "traditional" law and custom. Rather his Honour saw this shift as a change of emphasis which was merely an adaptation from a system that had been patrilineal. Second, his Honour rejected arguments by the applicants that evidence that non-claimants (indigenous and non-indigenous) were expected to ask for permission to travel across or use country was sufficient to support a claim to exclusive possession. Weinberg J also rejected the argument that a right to be consulted about matters that might harm country and to veto any activity that might be detrimental to country falls short of a claim to possess land to the exclusion of all others. Thus his Honour concluded that while the applicants' evidence demonstrated the existence of native title rights and interests, such native title did not amount to an exclusive interest. Finally, Weinberg J noted he was bound by the decision of the full Federal Court (Wilcox, French and Weinberg JJ) in Northern Territory v Alyawarr5 in relation to the application of section 47B of the NTA to areas declared as a town under Northern Territory Crown Lands legislation. His Honour notes his concurrence in his own decision in Alyawarr in any event. As a result, prior extinguishment of native title (effected mainly by historical pastoral leases covering the town site) was to be disregarded in respect of vacant crown land "occupied" by the applicants. The applicants have filed an appeal in relation to the finding that there is no exclusive native title. It is understood the Northern Territory has filed a a cross- appeal in relation to the application of section 47B to the declared town of Timber Creek, and with respect to the issue of the relevant descent principles which led to the finding that the Ngaliwurru and Nungali peoples are the native title holding group. It is anticipated that the appeal will be heard in early 2007.

4 5 Griffiths at [568]. (2005) 145 FCR 135 (Alyawarr).