nature reserves after ward

7/28/2019 Nature Reserves After Ward

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Raelene Webb'

1. NATURJ2 RESERVES AND NATIONAL PARKS IN THE EASTERNKIMBERLEY AND NORTHERN l'ERRITORY

NATURE RESERVES, NATIONAL PARIeS ANDNATIVE TITLE AFTER WARD

Banister, Northern TerritoryKeep River National Park comprises two arcas of land (N I Portion 1801 and NI Portion 3121) leased inperpetuity to the Conservation Land Corporation (NT) ("the Corporation") in 1980 and 1987respectively 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 1982under the Land Act 1933 (WA), s 29 and now vested in the National Parks and Nature ConservationAuthority ("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.456

In the remote East Kimberley region ofWestern Australia and the Northern Territory substantialareas of land and waters are established as reserves and parks for conservat ion purposes- To theeast ofKununulTa, just over the Northern Territory border, is Keep River National Park] noted forits Sl1iking landfonns and rugged terrain. Two kilometres from the centre ofKummurra is Mirima(Hidden Valley) National Park2, featming impressive sandstone hill and valley fonnations. Northof Kunullurra, an area of nmdflats and inter-tidal zone on the eastern and Ilorthern edges of theCambridge Gulf is reserved for eonservatioI l purposes3. Pe lican Island Nature Reserve," tenkilometres of f the nor thern coast , is reserved as a wi ldli fe sanctuary. Othe r reserves in the EastKimberley region include Point Spring Nature Reserve5 and a reserve incorporating the Goose Hillarea6, 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 peoplemay continue to undertake activities in accordance\vith their laws and customs. Prior to thedecision of the High Court in Western Australia v Ward on 8August 2002. the effect on native titlerights and interests of the creation of nature resen'es and national parks and applicableconservation legislation was considered minimal. That position no longer pertains_ Naturereserves and national parks must now be understood as having an e;r;tinguishing effect on nativetitle equivalent at least to that (fpastoral leases. Where nature reserves and national parks arevested in a conservation authority. extinguishment may be total. Nevertheless, these areas maywell be administered in a manner consistent with ongoing Aboriginal cultural activities on theland. 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 natureresenes and national parks "Hiill help preserve the cultural heritage ofAboriginal people as wellas conserving the natural environment.

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(2002) 21 AMPLJ Nature Reserves, NationalParks andNative Title after Ward 283

Springs Nature Reserve7 for "protection of flora and fauna" and Parrys Lagoon Nature Reserve8for "conservation of falUla". All of these reserves are "nature reserves" for the purposes of s 23 ofthe Wildlife ConservationAct 1950 (WA)9 which provides that:

"nature reserve" means land reserved to Her Majesty, or disposed of, lUlder the LandAc t1933 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 thearea of land and waters in the north of \Vestern Australia and adjacent land in the NorthernTerritory in respect of which the Miriuvvung and Gajerrong people sought a determination ofnative 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 theNorthern 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 ofthe publicmay also access and enjoy. Such parks often contain areas of significance to Aboriginalpeople. For example, in Keep River National Park there are art sites, rock carvings, shell middensand bird traps of cultural importance to "traditional owners".11 Similarly Mirima National Parkhas rock paintings, engravings, grinding stones and stone tool-making sites, as well as sites ofDreaming stories12. Historically there is no doubt that the rugged terrain ofpJaces such as MirimaNational Park and Keep River National Park provided a physical retreat for Aboriginal peopleafter the advent of European settlement, allowing small groups to maintain a nomadic lifestyle andavoiding the '\vhite man" as late as the 1930s13 Because nature reserves are intended to conserve the natural values of an area, in particular flora orfauna, use by the public is usually restricted in some manner. The likely abundance of flora andfauna in nature reserves increases the significancc of these areas to Aboriginal pcople as huntingand foraging grounds. Types of wildlife and landscape found in the nature reserves in the areaclaimed in the East Kimberley include:(a)(b)(c)

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mangrove wetlands andwildlife, including salt-water crocodile and migratory birds; 14a rare species of wallaby and a colony of bats, together with a spring and a small area ofrain forcst;15 anda pelican 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 andnature reserves.Ward v }Vestern Allstralia (1998) 159 ALR 483 at 543.At 544.At 516.Reserve 31967.Reserve 34585.Reserve 29541.


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2. THE FlNDl.NGS OF TI-IEFIJUL COURT OF THE FEDI',RAL COURTThe relevant findings of the Full Court are here sunm1arized.

Despite the vastness of the AustTalian landscape, development has encroached upon, and criticallyreduced, 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 andnature, they also play a significant role in protecting Aboriginal cultural activities vvhich are oftenpromoted as attTactions for tourists.

(2002) 21 AlvIPUnicies

The mere reservation ofIand did no t extinguish native title.21The.vesting of reserves confenec1 pov'lers of control and management for the purposes ofthe reserve. Furthel' extinguishment


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(2002) 21 AMPU Nature Reserves, National Parks andNative Title after Ward 285

(e)

(f)

(g)

(h)

3.

human activities on the land, thereby extinguishing the exclusivity of native title rights to"4control access and to possess and occupy the land:

Stringent regulations controlling and regulating activities that may be carried out on theland did not extinguish those native title rights; regulations permi tting otherwiseprohibited activities left room for the accommodation of customary Aboriginal. ~ .prae1]ees.In all nature reserves or wildlife sanctuaries created in the determination area before thecommencement of the RDA, nat ive title rights to take flora and fauna have been whollyextinguished.26The declaration of Keep River National Park and vesting in the Corporation did not effecta vesting of fee simple and did not extinguish native title.27Leases granted in perpetuity to the Corporation had no greater extinguishing effect thanthe previous grant of pastoral leases 'which had extinguished the exclusivity of native titler ights and interests and the right to make decisions about the use of the land for pastoral28purposes_

THE FINDINGS OF THE HIGH COUHTThe decision of the High Court as to the effect of nature reserves and national parks on native titledeparts significantly from the conclusions reached by the majority of the Full Court. With respectto reser-les generally the High Court hcld as follows:(a)

(b)

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30

Reserving land inWestem Australia pursuant 10 the Land Acts was inconsistent with anycontinued exercise of power by native title holders to decide how the land could or couldnot be used, bu t not necessarily incons is tent with thc right to continue to use the landaccording to traditional laws and customs.29Whether a native tit le right to use a reserved area continued unextinguished depends onother considerations, particularly what, i f any, rights in others were created by thereservation or later exerted by the executive, not the way in which they may have beenexercised 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 WesternAustralia (2000) 99 FCR 316 at [389].Western Auslmlia v Ward (2002) 76 ;\LJR 1098 at [220] and [234]: compare with Ward v WesternAustralia (2000) 99 FCR 316 at [391] and [455]ff.


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4, THE EF'FECT OF n.ESERVATION

Those findings extend also to nature reserves and to t i le reservation of l'vIirima National Park33 .Relevant to subparagraph Cb) above it should be noted that the High Court refused special leave toappeal against the finding of the majority of the Full Court that any native title right or interest tohunt or gather over land in a nature reserve created before the conunencement of the RacialDiscrimination Act 1975 (Cth) ("IWA") was extinguished.]'1

The decision of the High Court in respect of Keep River National Park that the declaration of thepark in 1981 under s 12(1) of the TerritOlY Parks and FVildlife Conservation Ac t (NT) ("TNVCA")was ultra vires, to the extent that there remained native tit le rights and interests at that datc35, tumson the provisions of the relevant legislation. That issue aside, the High Court concluded that thegrant of leascs in perpetuity under the Special Purposes Leases Act 1953 (NT) and the CrOlvnLand5 Act 1931 (NT) to a t,tatutory authority of the Crown to establish a Territory park, confeneda light of exclusive possession which was inconsistent with all native title rights and interests thcnexisting. 36

(2002) 21 AlvlPLJrticles

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 LandAct 1933 ('VITA) vests thelegal 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 vWestern 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) 99FCR 316 at [504].Western Australia v Ward (2002) 76 ALJR 1098 at [458].At [439].At [219].At [220].

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(c)

A reservation of land under the relevant \Vestcrn Australian provisions was held by the High Courtto bc inconsistent with any native tit le right to be asked permission and to decide hovy land couldor could not be used, on the basis that the executive, pursuant to legislative authority, wasexercising a power to decide how the land eould be used.37 The same reasoning applies to t11ereservation of land for conservation purposes under other legislation. Any further question ofextinguishment of native title rights to use the land is lo be answered by having regard toinconsistencies between the particular use and activities undertaken on, the land by native titleholders in accordance with traditional laws and customs and rights and interests created by thereservation or later asserted by the executive.3s The extinguishing effect of conservation legislationon native title rights to use nature reserves and national parks is considered further below.

(d)

286


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(2002) 21 AMPLJ Nature Reserves, National Parks andNative Title ajter Ward 287

\V11cre nature reserves and national parks have been created prior to the commencement of theRDA, any native ti tle r ight to control the use of, or access to, the land has been ext inguished atCOnm1on law. In the case ofreserves and parks created after 31 October 1975, consideration mustbe given to the operation of the RDA. Different considerations arise depending on whether or notany native title right to make decisions about hmv the land could or could not be used bad alreadybeen extinguished, for example, by the grant of pastoralleases39 or by the creation of previousreserves.If theoght of native title holders to coniTal the use of or access to land had already beenextinguished prior to 31 October 1975, subsequent establishment of a nature reserve or nationalpark would nol affect that right and no issue of discrimination ullder the RDA could arise in respectof the reservation of the land.4oAfter the commencement of the RDA. the creation of a nature reserve or national park on land thatwas always vacant Crown land, vvithout provision for compensation for the destruction of anynative title rights and interests, would be an "arbitrary deprivation of property" and would beinvalid41 . I f the act took place before 1 January 1994, it would be a "past act,,42 and validated by s19 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 useof the land would, in effect, be suspended for as long as the reserve or park remained.43Nature reserves or national parks established after 1 JanuaI-y 1994, or proposed for tlle future, onland that has always been vacant Crown land and where native title persists will be invalid unlessthe 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 ornational parks can arise. Even if legislation which enables the creation of the reserve or parkprovides 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 happenon 111e land, if such a right existed at the relevant date. Whilst that native title right will remainsuspended for the duration of the reserve or park, the legislation itself confers a statlltory right tomake decisions about the land in the context of joinlmanagement ofthe reserve or park

5. THE EFFECT OF VESTINGEach ofReserves 29541 for Wildlife Sanctuary, and 31967, 34585 and 42155 for Conservation ofFlora and Fauna and Reserve 37883 for the Mirima National Park is vested in the Authority.45 Bythat vesting the reserved land has been "dedicated" to the purpose for which the land was reserved,3940414243

4445

At [222].Ibid_Ibid.See NTA, s 228(2)."IVes/ern Austral ia v Ward (2002) 76 ALJR 1098 at [222]; NTA, ss 15(1), 19, 238. See also relevantprovisions of State or Territory validaling legislation.Scc SubdivisionM ofDivisian 3 afFart 2, l'lTA.rVestem A.ustralia v Ward (2002) 76 AUR 1098 at [231].


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TIle result is that the vestings, after 31 October 1975, of Reserves 34585,37883 and that par t ofReserve 42]55 crcated in ]992 arc valid but the RDA conferred on native title holders a right ofcompensation 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-Genera1.46The High Court held that vesting a reserve in a body or person to be held for a par ticular purposehaving 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 Reserves29541 and 31967 and Reserves 30866 and 3]636 (novY subsumed by Reserve 42155) are a]] natmereserves established and vested in the Authority or its predecessor prior to the commencement ofthe RDA. l nr espect o f those nature reserves, a]] native title rights and interests have beenextinguished by the vestings which conferred exclusive possession and were inconsistent with 111econtinued existence of any native title rights and interests in the land.4s

(2002) 21 Nv!PUrticles

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 WesternAustralia v Ward (2002) 76 ALJR 1098 at [lOG].

4G47484950515Z

For those nature reserves and national parks established and vested in a body or person after thecommencement of the RDA49, other considerations alise. Close attention to the reievant Icgislationis required to ascertain whether its practical operation results in different treatmcnt of nativc titlerights and interests and non-native title rights and interests. In the casc of the Land Ac t 1933 (WA)provision was made for certain non-native title interests to be resumed for purposes of reservationunder s 29 of the Act, with an entit lement to compensation for that resumption. 50 The result isthat, if as a step to creating a reserve 311d the subsequent vesting, i t was necessary to bring to anend any of the non-native tit le interests which could be resumed, the holder of that interest wasentitled to compensation. That consequence flovved from the terms of the grant.:5i As the Land Act1933 (WA) provided fo r extinguishment of land titles but compensation was available only fornon-nati ve title, the effect of s 10(1) of the RDA was to provide a right of compensation to nativetitle holders for the extinguishment of their native title, without invalidating the extinguishing,0a c t . - ~

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This vesting of an estate in fee simple in a body or person with responsibilities for control andmanagement of the nature reserve or national park is to be contrasted with placing a reserve orpark under the control or management of a body or person. In the case of the vesting, exclusivepossession is conferred which is inconsistent with any native title rights, including rights to use theland which were not extinguished by the reservation. In the case of conferring control andmanagement, the inconsistency goes no further than does the cstablisll1nent of the reserve or park;that is, inconsistency with any native tit le right to make decisions about use of and access to theland.


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(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. 53Having concluded that the vcsting of a reserve creatcd under the Land Act 1933 (WA) after 31October 1975 was not invalid by the operation of the RDA, the necessary consequence of thevesting is that it is not a "past act" requiring validation by the State validating legis1ati OD_ 54Where the conclusion is reached that a vesting of a nature reserve or national park after thecommencement of the RDA is valid, the operation of Division 2B of Part 2 of the NTA and thecorresponding provisions of the State or Territory validating legislation require consideration toascertain ,,,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 estate55 taking place on orbeforc 23 December 1996 is a "previous exclusive possession act". If the vesting confers a rightof exclusive possession, s 23B(3) of the NTA provides that the vesting is taken to be the vesting ofa freehold estate for the purposes of s 23B(2)(c). Thc result is that a valid vesting, on or bcfore 23Dccember 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 actsfrom that definition. Of relevance to nature reserves and national parks is s 23B(9A} of the NTAwhich provides:

An act is not a previous exclusive possession ac t if the grant or vesting concerns theestablishment of an area, such as a national, State or Territory park, for the purposc ofpreserving the natural environment of the area.

For the future, a consequence of the vesting of resen-esin any body or person conferring a right toexclusive 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 aright 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 ofnon-native title then s 10(1) of the RDA confers a right of compensation on native title holderswhose rights have been extinguished. That compensation is to be dctemlined in accordance withthe NTA.

In the present case, the vesting of Reserves 34585, 37883 and that part of Reserve 42155established in 1992 would be excluded from the definition of previous exclusive possession act ins 23B of the NL'1 on that basis and the corresponding provisions ofthe State validating legislationare not then relevant56 Nonetheless, because the vesting of the right of exclusive possession wasvalid in each case, all native title rights and interests in those Reserves have been extinguishcd57,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 isbeyond 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.

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6. THE EFFECT OF LEGISLATION

(2) The operation and cffcct of this Act is subject to the J\lative Title Ac t 1993 of theCommonwealth.

establishment of which involves a vesting, requires compliance with the future act provisions ofthe NTA, namely Subdivision M of Division 3 ofPart 2.

(2002) 2J AMPUrticles

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 42and 46.See Ten'itolJ! Parks and Wildlife Conservation AmendmentAct 2000, s30.

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This amendment reflects the requirement in s 11(1) of the NTA that native title is not able to beextinguished contrary to that Act.

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The High Court having concluded that the establishment ofWestcm Australian nature reserves andMirima National Park extinguished all native title rights and interests, it was not thcn necessary toconsider the effect of legislation applying to those areas, save only to confirm the coueetness ofthe finding by the majority of the Full Court that any native title right to hunt or gather over land ina nature reserve created before 1975 was extinguished.ss

In those jurisdic tions where nature rcserves and national parks are not vested in any body orperson and native title rights of use arc not necessarily extinguished, it will be important to giveclose attention to the particular legislative provisions which apply to thosc areas to asccrtain theimpact upon, and inconsistcncy with, activities of native title holders undertaken in accordancewith traditional laws and customs. This cxercise cannot be done without clear and specific findingsas to the actual use and activities of native titleholders on reserves and parks. However there canbe no doubt that provisions intended to conserve the natural environmcnt and control use of naturalresources of the typo commonly applying in nature reserves and national parks will conflict tosome extent with any subsisting native title rights of use. This may still be so even \vhere1l1ore isspecific 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 forconservation purposes which might expressly affect tTaditional use. Section 122 of the TPWCAwas amcnded in 2000 removing the qualification in previous subsection (2) and inserting thefollowing: 60

Whilst s 23(1) of the Wildlife Conservation Act 1950 (\\lA) authorized an AbOliginal person totake flora and fauna from Crown land as an exception to othcrwise protective provisions,59 thatexception did not extend to nature reserves. In the case of nature reserves Aboriginal people,along with all others, were prohibited from hunting and gathering.


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(2002) 21 AMPU Nature Reserves, jVational Parks and Native Title ajier Ward 291

7. KERP RIVER NATIONAL PARK7.1 The grant ofleascs in perpetuityThe area known as Keep River National Park comprises NTPortions 1801 and 3121 leased inperpetuity to the Corporation in 198061 and 198762 respectively, and managed by the Parks andWildlife Commission as a park. Both leases were granted for the purposes of carrying out thefunctions of the Conservation Commission (now the Parks and Wildlife Commission) and bothleases are subject to a covenant that the land ,vin be used only for the pUIposes for which it isleased. 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 ActOne such function is to have the care, control and management of all land acquired by theCorporation.64

In stark contrast to the deCision of the primary judge and the majority of the Full Court that thegrant of SPL 475 and CLF 58 1 to the Corporation was in effect Iittle different from the reservationof Crown land for a public purpose, or the vcsting of powers of management and control,65 theHigh Court held that t h t ~ leases conferred exclusive possession upon the CorporationG6 Theconsequence of the conferral of exclusive possession on the Corporation \vas inconsistency withany surviving native title rights; subject to the operation of the RDA, those rights would beextinguished G7 Because the grants under the relevant legislation had effect only on native title rights, s 10(1) ofthe RDA invalidated the leases.68 The Corporation was held to be a statutory authority \vithin tbemeaning ofthe definition of that tenn in s 253 oflhe NTA 69 Accordingly the leases were validatedby Territory validating legislation as Category D "past acts" such that the non-extinguishmentprinciple applied7o . Relevantly, as the grants were wholly inconsistent with the continuedexistence, enjoyment or exercise of native title rights, the effect of s 238(3) of the NTA is that thesubsisting native title at the date of the grants continues to exist in its entirety, but the rights andinterests have no effect in relation to the grants. 7 i Because of the flndings of fact and the tenns ofthe determination, the High Court was not able to reach a conclusion as to the totality of the native6162636465

666768697()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.


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7.2 Declaration of Keep River National ParkIn 1981 NT Portion 180I was purportedly declared a park pursuant to s 12(1) of the TPWCA. Thatsection provided that the Administrator may:

title rights extinguished by the grant of pastoral leases and the extent ofthe rights which survivecf2which are, in effect, suspended for the term ofthe lease, that is, in perpetuity.

(2002) 21 AMPUrticles92

(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 Terri tory or the Corporation, holds a right,

title or interest,to be a park or reserve.

The conclusion that any subsist ing nati'l/e t it le r ights are suspended for the durat ion of leasesgranted in perpetui ty, bu t not extinguished, has l itt le, if any, pract ical consequence formanagement of Keep River National Park. It does, however, have consequences in respect ofthedeclaration 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 ofnature reserves after the commencement of the RDA, the grants to the Corporation involved theestablishment of an area as a Terri tory park for the purpose of preserving the natural environment,thus excluding the grants from the definition of "previous exclusive possession aet".73 Unlike thevestirig of a reserve which was valid and effective to extinguish native title at common law, thegrants of leases to the Corporation did not, apart from the NTA,have any extinguishing effect onnative 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 vires74 .In 1998, s 12(1)(a) of the TPWCA was amended to provide that a declaration of a park or reservecould be made, whether or not a person, other than the Terri tory holds a right , t it le or interest inthe land, including any native title rights and interests.75 Provision was also made to override thestatutory vesting of land in the Corporation under s 12(7) by a declaration that the land declared apark or reserve does not vest in the Corporation.76 A further provision was inser ted to the effectthat notwithstanding the declaration of the park or reserve, nothing in the TPWCA is to be taken to

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At [425J- Note that the comment at [448] that no conclusion can be reached as to whether the respectivegrants to the Corporation were whony or partly inconsistent with the native title rights which survivedthe 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 grantswould 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 AmendmentAct 1998, s 2 replacing ITVPCA, s 12(1 )(a).Territory Parks and Wildlife Conservation Act, s l2(1)(aa).


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(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.77The declaration of a park or reserve under the TPTVCA, without subsequent vesting in theCorporation,would have the same effect on native title as the reservation of nature reserves. Thatis, any subsisting native title right to control use of or access to the land would be inconsistent withand 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 titleconsequent upon the declaration of a park? Where a declaration is made in respect of land whichhas been subject to a pastoral lease, the effect of the provision may be to protect native title rightsto use the land. For example, regulations and by-laws made under the TPWCA which wouldothenvise affect native title rights to use the land may not apply to native title holders. If adeclaration is made in respect of land vvhich has always been vacant Crown land, more difficultquestions would arise, possibly involving "co-existing" rights to make decisions about the landand perhaps again raising questions as to the effectiveness of the declaration_ Given that almost allof the Territory has, at some stage, been subject to the grant of a pastoral leasc, these questionsmay well be academic.

8. CONCLUSIONThe decision of the High Court as to the extinguishing effect of the reservation of and vesting ofnational parks wiH not necessarily cxclude or limit the continuation of cultural activities in theseareas. For example, in Keep River National Park "cooperative and friendly arrangements" existbetween Territory and Aboriginal representatives in relation to management of the Park, indicativeof an intention to maintain, not destroy, the cultural practices of the Aboriginal people who live inand around the arca78 . Similar arrangements doubtless exist in other parks throughout Australia.However, filture involvement of Aboriginal people in decision-making conceming nativnal parksand nature reserves will not rely upon native title rights to make decisions about the land but willdepend upon joint management and similar cooperative arrangements.The preservation and protection of the environment, including the cultural heritage ofAboriginalpeople, is impOltant for all Australians, iuespective of whether continuing Aboriginal practices fanwitllin the legal definition of "native title" in s 223 ofthe NTA.

777S

Ierritory Parks and Wildlife Conservation Act, S 12(lA).Western Australia v Ward (2000) 99 FeR 316 at [362].

nature reserves after ward

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