Temple Downs and Middleton Ponds/Luritja Land Claim - pdf [290kB]

Aboriginal Land Rights (Northern Territory) Act 1976

TEMPE DOWNS AND MIDDLETON
PONDS/LURITJA
LAND CLAIM No. 147
Report No. 53
Report and recommendation of the former
Aboriginal Land Commissioner, Justice Gray,
to the Minister for
Aboriginal and Torres Strait Islander Affairs
and to the
Administrator of the Northern Territory
Aboriginal and Torres Strait Islander Commission
Canberra

© Commonwealth of Australia 1998
ISBN 1 876591 00 5
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process
without prior written permission from the Aboriginal and Torres Strait Islander Commission (ATSIC). Requests and inquiries
concerning reproduction and rights should be addressed to ATSIC.
Produced by the Aboriginal and Torres Strait Islander Commission on behalf of the Aboriginal Land Commissioner.
PRINTED BY: Panther Publishing and Printing, Canberra
Cover Map by: Landinfo Pty Ltd
(ii)

OFFICE OF THE ABORIGINAL LAND COMMISSIONER
7th Floor, National Mutual Centre, 9-11 Cavenagh
Street, Darwin N.T.
Telephone: (08) 8981 1799 G.P.O. Box 2289
Facsimile: (08) 89813465 DARWIN N.T. 0801
31 March 1998
Senator The Hon. John Herron, Minister for Aboriginal and Torres Strait Islander Affairs, Parliament
House, CANBERRA, A.C.T. 2600.
Dear Minister,
Re: Tempe Downs And Middleton Ponds/Luritja
Land Claim No. 147
In accordance with the provisions of section 50(1) of the Aboriginal Land Rights
(Northern Territory) Act 1976, 1 present my report and recommendation on this claim.
As required by the Act, I have sent a copy of this report to the Administrator of the
Northern Territory.
Yours sincerely,
PETER R. A. GRAY
A person deemed to continue to hold the office of Aboriginal Land Commissioner,
pursuant to section 52(4) of the Aboriginal Land Rights (Northern Territory) Act
1976.
(iii)

OFFICE OF THE ABORIGINAL LAND
COMMISSIONER
7th Floor, National Mutual Centre, 9-11 Cavenagh Street. Darwin N.T.
Telephone: (08) 8981 1799 G.P.O. Box 2289
Facsimile: (08) 89813465 DARWIN N.T. 0801
31 March 1998
His Honour Dr Neil Corn A.O., Administrator of the Northern Territory, Office of the Administrator, The
Esplanade, DARWIN, N.T. 0800.
Your Honour,
Re: Tempe Downs And Middleton Ponds/Luritja
Land Claim No. 147
In accordance with the provisions of section 50(1) of the Aboriginal Land Rights (Northern Territory) Act
1976, 1 present my report and recommendation on this claim.
As required by the Act, I have sent a copy of this report to the Minister for Aboriginal and Torres Strait
Islander Affairs.
Yours sincerely,
PETER R. A. GRAY
A person deemed to continue to hold the office of Aboriginal Land Commissioner,
pursuant to section 52(4) of the Aboriginal Land Rights (Northern Territory) Act
1976.
(iv)

CONTENTS
Page
1 HISTORY OF THE CLAIM 1
1.1 Lodgment 1
1.2 Listing for hearing 1
1.3 Advertisement 1
1.4 Parties 1
1.5 The inquiry 2
1.6 Restricted women’s evidence 2
1.7 The appendices 3
1.8 Completion of the report 3
2 THE LAND CLAIMED 5
2.1 Northern Territory Portion 4307 5
2.2 Adjacent lands 5
2.3 The Hugh River Stock Route 6
2.4 Pastoral Lease No. 629 and Pastoral Lease No. 703 6
2.5 Tempe Downs Pty Ltd 6
2.6 Tempe Downs Aboriginal Corporation 7
2.7 Status of Northern Territory Portions 689 and 854 7
2.8 Consent in writing 9
2.9 Status of the Hugh River Stock Route 9
2.10 Roads and rivers 9
2.11 Northern Territory Portion 3586 9
2.12 No easement of access to Northern TerritoryPortion 3586 14
2.13 Rivers and creeks 14
2.14 Land available for claim 14
2.15 Physical features of the land claimed 14
3 LOCAL DESCENT GROUPS 16
3.1 Luritja identity 16
3.2 Composition of groups advanced as traditional
Aboriginal owners 16
3.3 Descent criteria 16
3.4 The meaning of “local descent group” 16
3.5 Borning rights 16
3.6 Helpers 18
3.7 The Urrampinyi group 18
3.8 The Wirra group 21
3.9 The Manyari group 23
3.10 The Wilpiya group 23
3.11 The Breaden group 24
3.12 Local descent groups 26

4 COMMON SPIRITUAL AFFILIATIONS,
PRIMARY SPIRITUAL RESPONSIBILITY
AND RIGHTS TO FORAGE 27
4.1 Groups connected with areas of the land claimed 27
4.2 The nature of the connection 27
4.3 The test for common spiritual affiliations 28
4.4 Urrampinyi country 29
4.5 Wirra country 30
4.6 Manyari country 31
4.7 Wilpiya country 31
4.8 Common spiritual affiliations 31
4.9 Primary spiritual responsibility 31
4.10 Rights to forage 32
4.11 Traditional Aboriginal owners 32
5 STRENGTH OF ATTACHMENT 36
5.1 Assessing strength of traditional attachment 36
5.2 Abundance of evidence 36
5.3 Claimants who were born on the claim area 36
5.4 History of attempts to acquire the land claimed 36
5.5 Where the claimants live 37
5.6 Ceremonial activity 37
5.7 Spiritual life 37
5.8 Site protection 38
5.9 Secret business 38
5.10 Passing on knowledge 38
5.11 Strength of attachment high 38
6 MATTERS FOR COMMENT 39
6.1 Numbers advantaged 39
6.2 Nature and extent of the advantage 39
6.3 Detriment: land not available as security for loans 40
6.4 Detriment: mining 41
6.5 Detriment: conservation 41
6.6 Detriment: historic buildings 42
6.7 Detriment: Telstra Corporation Ltd 42
6.8 Detriment: bores and gravel pits used for road
maintenance 43
6.9 Effect on existing or proposed patterns of land use 44
6.10 No cost of acquiring interests 45

7 OTHER MATTERS 46
7.1 Acquisition of secure occupancy 46
7.2 Roads over which the public has a right of way 46
7.3 Single land trust 47
8 RECOMMENDATION 49
8.1 Recommendation 49
APPENDICES
1. List of sites at or near which evidence was taken 50
2. List of appearances and consultant anthropologist
to the Aboriginal Land Commissioner 51
3. List of witnesses 52
4. List of exhibits 53
5. Statement of findings, evidence and reasons
pursuant to section 13 of the Administrative
Decisions (Judicial Review) Act 1977 55
6. Site map 67

1 HISTORY OF THE CLAIM
1.1 Lodgment The Tempe Downs and Middleton Ponds/Luritja Land Claim No.
147 is a traditional land claim, made pursuant to s. 50 of the Aboriginal Land Rights
(Northern Territory) Act 1976 (“the Land Rights Act”). The application was received in
the office of the Aboriginal Land Commissioner on 9 December 1993. It was lodged by
the Central Land Council on behalf of a number of persons claiming to be traditional
Aboriginal owners of land known as Tempe Downs Station and Middleton Ponds
Station, together with all roads and rivers within the boundaries of those stations
(including the Palmer River in the case of the Middleton Ponds Station) and that part of
the Hugh River Stock Route contained within the boundaries of the Middleton Ponds
Station.
1.2 Listing for hearing The claim was listed for hearing on 7 November 1994, as
part of my 1994 land claim program.
1.3 Advertisement Public notice of the claim hearing was given by the publication
of advertisements in the Weekend Australian on 10 September 1994, the NT News on 14
September 1994, the Centralian Advocate on 13 September 1994, the Katherine Times
on 14 September 1994, the Tennant and District Times on 9 September 1994 and Land
Rights News in the November 1994 edition. Notices of the hearing were also sent to all
persons whose names appear on the mailing list maintained in the office of the
Aboriginal Land Commissioner and to the managers of Henbury Station, Palmer Valley
Station and Angas Downs Station. Reference is made to those stations in para. 2.2.
1.4 Parties
1.4.1 Notices of intention to be heard were received from the Attorney-General
for the Northern Territory on 15 September 1994 and Telstra Corporation Ltd on
10 October 1994. Telstra Corporation Ltd subsequently sent a written statement
of evidence and submissions through the Australian Government Solicitor. That
document became exhibit ALC1 in the inquiry into the claim. On 6 September
1994, a Mrs Stanes telephoned the office of the Aboriginal Land Commissioner
on behalf of the proprietor of Palmer Valley Station and advised that the
proprietor of that station had no objection to the claim. On 9 September 1994, a
Mr Ross Morton telephoned the office of the Aboriginal Land Commissioner on
behalf of the proprietor of Henbury Station. He stated that the proprietor of
Henbury Station would communicate in writing with the office of the Aboriginal
Land Commissioner. No such communication was received.
1.4.2 When he announced his appearance, counsel for the Attorney-General for
the Northern Territory made it clear that his instructions were “to assist your
Honour as far as we can in helping your Honour to determine who are the
traditional owners of the land under claim”. He made clear that he would be
asking for the identification of any public roads in the claim area and would be
calling evidence from the Conservation Commission of the Northern Territory
about the conservation values of the area. At no time has the Attorney-General
Page 1

for the Northern Territory opposed the making of a recommendation pursuant to
s. 50(1)(a)(ii) of the Land Rights Act for the granting of the land claimed to a
land trust in accordance with ss. 11 and 12 of the Land Rights Act.
1.5 The inquiry
1.5.1 The inquiry began at Tempe Downs Station on 7 November 1994. The
hearing proceeded on and near the land claimed on 7, 8, 9, 10, 11 and 12
November 1994. I heard evidence at or near twenty-three sites which are listed
in appendix 1. The hearing resumed at Alice Springs on 17 March 1995 and
proceeded on that day and the two following days. I received written
submissions on behalf of the claimants and the Attorney-General for the
Northern Territory. I also received written submissions on behalf of the
claimants in reply to the submissions made on behalf of the Attorney-General
for the Northern Territory. Submissions were completed on 29 July 1996.
1.5.2 On 10 November 1994, a helicopter was used to visit Kulpimara (site 38)
in the morning and Minpurru (site 4) in the afternoon. At the former, evidence
of secret men’s business was led, while at the latter the evidence was of secret
women’s business. The helicopter was used to shuttle essential persons to and
from those sites. Its use resulted in restricted numbers of persons being able to
be present during the hearing of that evidence, but it shortened the hearing
substantially by facilitating access to sites which would otherwise have been
very difficult to reach.
1.6 Restricted women’s evidence
1.6.1 On each of 8, 9, 10, 11 and 12 November 1994 and on 18 March 1995, I
received evidence in sessions in which no persons other than adult males were
present. In respect of each such session, I gave directions to the effect that the
evidence given and the transcript thereof not be used or divulged other than for
the purposes of the claim and in any event not be divulged to anyone other than
adult males. On each of 9, 10 and 11 November 1994, I heard evidence at a
session at which the only persons present were women, apart from myself. In
respect of the session on 9 November 1994, I reserved the question whether any
direction should be made that the transcript of the proposed session on that day
be made available to anyone other than women or myself. In respect of the
session on 10 November 1994, I directed that the whole of the evidence to be
taken and the transcript of it not be divulged to anyone other than for the
purposes of the land claim and in any event not be divulged to anyone other than
adult females. I reserved the question whether to make some exemption from
that broad direction with respect to transcript. In respect of the session on 11
November 1994, I directed that the evidence and the transcript of it not be
divulged to anyone other than for the purposes of the land claim and in any event
not be divulged to anyone other than adult females.
1.6.2 In the sessions involving women’s restricted evidence on 9, 10 and 11
November 1994, Ms Julia Munster, a lawyer and anthropologist employed by
the Central Land Council, examined the witnesses in chief. The Attorney-
Page 2

General for the Northern Territory was represented by Ms Judy Bonner, a
barrister and solicitor employed by the Solicitor for the Northern Territory. By
letter dated 10 March 1995, Mr James Nugent, a legal officer employed by the
Central Land Council, advised me that consultations had occurred with female
claimants for the preparation of a report on public aspects of evidence given in
restricted women’s sessions during the hearing. A draft report had been
provided to Ms Bonner and to my consulting anthropologist, Dr Debbie Rose.
The letter sought amendment of the directions I had made with respect to
transcript, so that some of the evidence given in those sessions would be more
widely available. After consultation with Ms Munster, my personal secretary,
Ms Carol Davies, produced a document containing those portions of the
transcript of women’s restricted evidence which the female claimants were
prepared to allow male counsel to view. That document became exhibit CLC7.
Its contents were excluded from my earlier directions that the transcript not be
divulged to anyone other than adult females, but were the subject of a direction
that they not be divulged to anyone other than for the purposes of the land claim.
1.6.3 On 15 December 1994, I received, by facsimile transmission, a letter from
Ms Raelene Webb, Crown Counsel, Department of Law, Northern Territory of
Australia. Although the letter was not strictly in accordance with s. 13 of the
Administrative Decisions (Judicial Review) Act 1977, I was prepared to treat it
as a request pursuant to that section for me to furnish a statement in writing
setting out the findings on material questions of fact, referring to the evidence or
other material on which those findings were based and giving reasons for my
decisions to hear women’s restricted evidence in the absence of any other men
and to give directions restricting the publication of the transcript of that
evidence. In a document dated 3 February 1995, I made a statement of my
findings on material questions of fact, referred to the evidence or other material
on which those findings were based and gave reasons for those decisions. A
copy of that document was forwarded to the then Minister for Aboriginal and
Torres Strait Islander Affairs for information. For convenience, I reproduce it in
appendix 5 to this report.
1.7 The appendices Appendix 1 to this report contains a list of the sites at or near
which evidence was taken. Appendix 2 contains a list of representatives of the parties
and the name of my consulting anthropologist. Appendix 3 contains a list of witnesses
who gave evidence in the course of the inquiry. Appendix 4 contains a list of exhibits
tendered to me in the course of the inquiry. Appendix 5 contains my statement of
findings on material questions of fact, evidence or other material on which those
findings were based and reasons for my decisions to hear evidence in the absence of any
other men on 9, 10 and 11 November 1994 and to restrict the publication of the
transcript of that evidence. Appendix 6 contains a map of the claim area, showing the
approximate locations of the sites referred to in appendix 1 and a number of other sites
referred to in this report. The sites are designated by numbers. I have used the numbers
allocated to the sites on the site map, which became exhibit CLC6, and in the site
register, which became exhibit CLC5, in the inquiry.
Page 3

1.8 Completion of the report My second term of office as Aboriginal Land
Commissioner expired on 24 October 1997. I was not reappointed. Section 52(4) of the
Land Rights Act provides that, where the period of office of a commissioner has
expired, the commissioner shall, unless the Governor-General otherwise directs, be
deemed to continue to hold the office of commissioner for the purpose only of
completing the performance of a function under the Land Rights Act commenced but
not completed before the period of office expired. I have completed this report in the
exercise of the power given to me by that subsection.
Page 4

2 THE LAND CLAIMED
2.1 Northern Territory Portion 4307 The land claimed all falls within the
boundaries of Northern Territory Portion 4307, which is an amalgamation of the former
Northern Territory Portion 689, known as Tempe Downs Station, and the former
Northern Territory Portion 854, known as Middleton Ponds Station.
2.2 Adjacent lands The land claimed is bounded by the following areas of land,
commencing at the eastern boundary and moving in a clockwise direction:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Northern Territory Portion 657, known as Henbury Station, which is the
subject of Perpetual Pastoral Lease No. 1094 to Ross James Morton.
Northern Territory Portion 1991, known as Palmer Valley Station, which is
the subject of Perpetual Pastoral Lease No. 1140 to Sydney Garnaut Stanes
and Peter Herbert Garnaut Stanes.
Northern Territory Portion 620, known as Angas Downs Station, which is
the subject of Perpetual Pastoral Lease No. 1093 to Imanpa Community
Inc.
Northern Territory Portion 2440, which is the subject of an estate in fee
simple held by Ukaka Aboriginal Corporation. This area consists of 120
hectares of land, excised from Northern Territory Portion 689, adjoining
the boundary between Northern Territory Portion 689 and Northern
Territory Portion 620 and adjoining the Ernest Giles Road.
Northern Territory Portions 3301 and 3302, which are said to be
unalienated Crown land subject to the Lake Amadeus (Repeat) Land Claim
No. 145.
Northern Territory Portions 3300 and 3393 (which resulted from a
subdivision of Northern Territory Portion 1097 since the hearing), which
are said to be unalienated Crown land and are subject to the Lake Amadeus
Land Claim No. 44 and the Lake Amadeus (Repeat) Land Claim No. 145.
Northern Territory Portion 2214, which was excised from Northern
Territory Portion 689 and is the subject of a Crown Lease Perpetual to the
Conservation Land Corporation, which commenced on 10 September 1983.
By an instrument, notice of which was published in the Northern Territory
Government Gazette No. G31 on 9 August 1989, Northern Territory
Portion 2214 was declared to be a park, pursuant to the Territory Parks and
Wildlife Conservation Act (NT). It contains the attractive feature known as
Kings Canyon and is known as the Watarrka National Park.
Northern Territory Portion 1635, which is Aboriginal land pursuant to the
Land Rights Act and is held by the Haasts Bluff Aboriginal Land Trust.
Page 5

(i)
(j)
(k)
Northern Territory Portion 2075, which is Aboriginal land pursuant to the
Land Rights Act and is held by the Ltalaltuma Aboriginal Land Trust.
Northern Territory Portion 4057, a former mining reserve, excised from
Northern Territory Portion 2075. It is 215.2 hectares in area and is said to
be vacant Crown land, intended to be the subject of a grant to Ltalaltuma
Aboriginal Land Trust.
Northern Territory Portion 2079, which is Aboriginal land pursuant to the
Land Rights Act and is held by the Ntaria Aboriginal Land Trust.
The boundaries of Northern Territory Portion 4307, the former boundary between
Northern Territory Portions 689 and 854, and the adjacent boundaries of the areas
referred to in this paragraph are shown on the map in appendix 6.
2.3 The Hugh River Stock Route Included within the claim is that portion of the
Hugh River Stock Route which lies within the boundaries of the claim area. This was
declared to be a route for the passage of travelling stock, pursuant to s. 113 of the
Crown Lands Act (NT). Notice of the declaration was published in the Northern
Territory Government Gazette No. S83 on 26 November 1986. The relevant part of the
stock route is a strip of land not exceeding 1609.3 metres in width which tends
approximately north-east–south-west between the north-eastern boundary of Angas
Downs Station and the Palmer River. From there, it follows the Palmer River on its left
bank in a generally east-south-easterly direction.
2.4 Pastoral Lease No. 629 and Pastoral Lease No. 703 Northern Territory
Portion 689 was the subject of Pastoral Lease No. 629, in favour of Annie May Alfie
Hince, Tom George Fenn and Donald Ludwig McInnes as executors of the estate of
Francis Arthur Hince, deceased, dated 18 July 1961. The term of the lease was for fifty
years from 1 July 1961. On 24 December 1964, the transfer of the lease to Tempe
Downs Pty Ltd was registered. Northern Territory Portion 854 was the subject of
Pastoral Lease No. 703, dated 25 May 1966, in favour of Michael Schneider. The term
of the lease was from 1 July 1965 until 30 June 2015. On 3 October 1974, Bagot’s
Executor and Trustee Co. Ltd became registered as the proprietor of the lease as
executor of the will of Michael Schneider, who had died. On 18 February 1976, a
transfer of the lease to Tempe Downs Pty Ltd was registered.
2.5 Tempe Downs Pty Ltd Tempe Downs Pty Ltd is a company incorporated in
the Northern Territory on 13 August 1963. It is a company limited by shares and a
proprietary company. By an agreement in writing dated 13 November 1993, the holders
of all the issued shares in the capital of Tempe Downs Pty Ltd agreed to sell their shares
to Tempe Downs Aboriginal Corporation. The agreement was executed and Tempe
Downs Aboriginal Corporation became the holder of all the shares in Tempe Downs Pty
Ltd.
2.6 Tempe Downs Aboriginal Corporation Tempe Downs Aboriginal
Corporation is an Aboriginal association, incorporated pursuant to the Aboriginal
Councils and Associations Act 1976 on 30 June 1993. By clause 8.1 of its rules,
Page 6

membership of the association is open to adult Aboriginal persons who are entitled by
Aboriginal tradition to the use or occupation of land being Northern Territory Portions
689, 854 and 2214, whether or not the traditional entitlement is qualified as to place,
time, circumstance, purpose or permission. A person who is not an Aboriginal person is
not entitled to be a member of the association.
2.7 Status of Northern Territory Portions 689 and 854
2.7.1 Each of Pastoral Lease No. 629 and Pastoral Lease No. 703 was the
subject of an instrument of surrender, executed prior to the making of the
application in this land claim. In each case, the surrender of the lease was
registered on 2 December 1993, prior to the making of that application. On 21
December 1993, after the making of that application, there occurred the
purported registration of Perpetual Pastoral Lease No. 1050, the owner of which
was Tempe Downs Pty Ltd. The land the subject of this perpetual pastoral lease
was Northern Territory Portion 4307, excluding Northern Territory Portions
3586 (as to which see para. 2.11) and 2440 (as to which see para. 2.2), 100-
metre-wide road reserves for the roads described in para. 7.2.1 and the Hugh
River Stock Route. The commencement date of Perpetual Pastoral Lease No.
1050 was 21 December 1993.
2.7.2 No evidence was given on the subject, but I assume that each surrender
referred to in para. 2.7.1 was pursuant to the schemes laid down in ss. 62 and 64
of the Pastoral Land Act (NT) respectively. The first of those schemes provided
that the lessee of a pastoral lease could apply in writing to the minister to
surrender the lease in exchange for a perpetual pastoral lease. The latter scheme
permitted the lessee of two adjoining pastoral leases to apply to the minister for
a grant of a single pastoral lease for all of the land the subject of the two
previous leases. In each case, it was necessary for the holder of the pastoral
lease or pastoral leases to surrender it or them before the grant of a new pastoral
lease.
2.7.3 Section 62(8) of the Pastoral Land Act (NT), so far as relevant, provided
as follows:
. . . the Minister shall, on the applicant surrendering the existing lease
and paying the fee, if any, fixed under subsection (7), grant to the
applicant a perpetual pastoral lease according to the particulars contained
in the notice under subsection (5) which shall commence immediately on
the surrender of the existing lease.
Section 64(8) of the same Act provided:
A surrender of a pastoral lease –
(a) shall be made within 3 months after the date of the notice of the
approval of the application; and
Page 7

(b) shall have effect from the date of commencement of the new
lease.
Section 120 of the Real Property Act (NT) provided as follows:
Whenever any registered lease is intended to be surrendered, and the
surrender thereof is effected otherwise than by operation of law, or as
hereinafter provided on insolvency or statutory assignment, the lease
shall be surrendered by an instrument in the prescribed form, signed by
the lessee and the lessor and upon any such instrument being presented
for registration, the Registrar-General shall make an entry in the Register
recording the date of the surrender.
Section 122 of the same Act provided:
Upon every entry made in the Register, in pursuance of section 120 . . . ,
the estate or interest of the lessee in the land shall revest in the lessor,
and evidence of such an entry in the Register shall be sufficient evidence
that the lease has been so surrendered.
2.7.4 Counsel for the claimants submitted that the land in Northern Territory
Portions 689 and 854 remained subject to Pastoral Lease No. 629 and Pastoral
Lease No. 703 respectively at the time when the application in this land claim
was received in the office of the Aboriginal Land Commissioner. On that basis,
he contended that those lands were alienated Crown lands. On the basis that the
only estate or interest in Northern Territory Portion 689 was Pastoral Lease No.
629 and the only estate or interest in Northern Territory Portion 854 was Pastoral
Lease No. 703, and on the basis that each of those pastoral leases was held by
Tempe Downs Pty Ltd, which is controlled by Tempe Downs Aboriginal
Corporation, counsel for the claimants submitted that the lands concerned were
alienated Crown lands in which all estates and interests not held by the Crown
were held on behalf of Aboriginal people.
2.7.5 The purported grant of Perpetual Pastoral Lease No. 1050 in respect of
Northern Territory Portion 4307 was ineffective to create any estate or interest in
the land to which it purported to relate, by reason of s. 67A(2) of the Land
Rights Act. It is a consequence of that provision that the making of an
application under s. 50(1)(a) of the Land Rights Act renders of no effect a
subsequent grant of an estate or interest in land until the claim is finally disposed
of. This land claim prevented the perpetual pastoral lease from having effect.
2.7.6 If, as seems likely, the scheme in s. 64 of the Pastoral Land Act (NT) was
followed, then s. 64(8) of that Act, as a specific provision, would have prevailed
over the general provision of s. 122 of the Real Property Act (NT). Despite their
registration on 2 December 1993, the surrenders of Pastoral Lease No. 629 and
Pastoral Lease No. 703 would not have taken effect until 21 December 1993.
On 9 December 1993, when the application in this land claim was made, the
land claimed was alienated Crown land, in which Tempe Downs Pty Ltd held
Page 8

estates or interests in the land claimed, being Pastoral Lease No. 629 and
Pastoral Lease No. 703. If the surrenders were effective, then the land claimed
was unalienated Crown land and available for claim.
2.7.7 Tempe Downs Pty Ltd held its estate or interest in each of Pastoral Lease
No. 629 and Pastoral Lease No. 703 on behalf of Aboriginal people, by virtue of
the control of Tempe Downs Pty Ltd by Tempe Downs Aboriginal Corporation,
the membership of which is restricted to Aboriginal persons.
2.8 Consent in writing The consent in writing of Tempe Downs Pty Ltd to the
making of the land claim was therefore required by s. 50(2C) of the Land Rights Act.
That consent was given on 14 January 1994, under the common seal of Tempe Downs
Pty Ltd, the affixing of which was witnessed by Oliver Ngalaia, a director, and Ronnie
Driffen, a director and the secretary, of the company. I note that there was a separate
consent in writing under the common seal of Tempe Downs Aboriginal Corporation,
also witnessed by Oliver Ngalaia and Ronnie Driffen, but it appears to have been
unnecessary, as Tempe Downs Aboriginal Corporation was not the holder of any estate
or interest in the land claimed.
2.9 Status of the Hugh River Stock Route The land contained within that portion
of the Hugh River Stock Route within the boundaries of the land claimed is unalienated
Crown land. The designation of the land the subject of Pastoral Lease No. 703 shows
that the stock route was excluded from the land leased. By s. 50(2D) of the Land Rights
Act, the Aboriginal Land Commissioner is required not to perform, or to continue to
perform, a function under s. 50(1)(a) in relation to an application made in respect of
land reserved, dedicated or otherwise set aside under a law of the Northern Territory as
a stock route. Section 50(2E) excludes from that requirement a stock route that is, along
each of its two longer boundaries, contiguous to land to which the application relates.
There was therefore nothing to prevent me from dealing with the claim so far as it
related to that part of the Hugh River Stock Route lying within the boundaries of the
land claimed.
2.10 Roads and rivers The application specifies that the land claimed includes all
roads and rivers within the boundaries of Pastoral Lease No. 629 and Pastoral Lease No.
703. No roads were excluded from either pastoral lease. If they had been, they would
have been unalienated Crown land and available for claim in any event. The question is
academic, because the effect of s. 11(3) of the Land Rights Act is to ensure that any land
on which there is a road over which the public has a right of way is excluded from a
grant of land to a land trust following a recommendation of the Aboriginal Land
Commissioner. The question of roads over which the public has a right of way on the
land claimed is dealt with in para. 7.2.
2.11 Northern Territory Portion 3586
2.11.1 Within the boundaries of the claim area is Northern Territory Portion
3586. This is an area of 2.25 hectares on which is constructed a digital radio
concentrator, consisting of a steel mast approximately forty metres high erected
on a concrete block, a solar panel array, and a concrete slab on which is erected
an equipment cabinet, housing batteries and radio equipment.
Page 9

2.11.2 By a document entitled “Authorisation”, dated 20 April 1988, Tempe
Downs Pty Ltd offered to surrender its interest in the area which became
Northern Territory Portion 3586 to the Australian Telecommunications
Commission, together with a free and unrestricted right of access over Northern
Territory Portion 689, for the sum of $500. The document provided:
The transfer of this land will be subject to the provisions of the
Commonwealth Lands Acquisition Act 1955 and to the site described
and inspected being verified by Survey.
By the same document, Tempe Downs Pty Ltd also granted the Australian
Telecommunications Commission a permissive occupancy of the land described,
if so required, to undertake construction works “pending finalisation of the
transfer arrangements by the Chief Property officer, Department of
Administrative Services, Darwin”.
2.11.3 By a separate document, also dated 20 April 1988, entitled “Deed of
Licence for Access by Telecom over Crown Land Under Lease”, Tempe Downs
Pty Ltd agreed:
to grant to the Australian Telecommunications Commission and its
agents servants workmen and contractors (described hereafter as
Telecom Australia) for nil monetary consideration a free and unrestricted
right of way and access at all times over [Northern Territory Portion 689]
specifically for the purposes of providing and maintaining
Telecommunications equipment located within the leasehold boundaries
and including Radio Repeater Site No Plate 86.
It is understood that a defined access is not practical due to variations in
topographical and climatic conditions prevailing from time to time over
the terrain and that Telecom Australia will endeavour at all times to use
the shortest practical route available and to minimise disturbance to the
land and our operations thereon.
2.11.4 The agreed sum of $500 was paid by the Australian Telecommunications
Commission to Tempe Downs Pty Ltd and was acknowledged by a receipt dated
3 October 1988. The area agreed to be surrendered from Pastoral Lease No. 629
was surveyed, and survey plan S88/54 was prepared, at the expense of the
Australian Telecommunications Commission. The survey was approved by the
Surveyor-General of the Northern Territory on 16 February 1989, at which stage
the land concerned came to be designated as Northern Territory Portion 3586.
2.11.5 On 1 February 1992, Part 4 of the Australian and Overseas
Telecommunications Corporation Act 1991 came into operation. By s. 11, read
in conjunction with the definitions of “AOTC”, “succession day” and “Telecom”
in s. 3, all property and rights of the Australian Telecommunications
Commission were vested in Australian and Overseas Telecommunications
Corporation Limited. Australian and Overseas Telecommunications Corporation
Page 10

Limited is a company incorporated under the Corporations Law of the
Australian Capital Territory. See s. 3 of the Australian and Overseas
Telecommunications Corporation Act 1991. By s. 26 of that Act, the
corporation is to be taken for the purposes of the laws of the Commonwealth, of
a State or of a Territory, not to have been incorporated or established for a public
purpose or for a purpose of the Commonwealth, not to be a public authority or
an instrumentality of the Crown and not to be entitled to any immunity or
privilege of the Commonwealth, except in so far as express provision may be
made. This provision seems to make clear an intention that Australian and
Overseas Telecommunications Corporation Limited was not to be regarded as
the Crown or an emanation of the Crown. I am unaware of any specific
provision which would require me to regard it as the Crown for the purposes of
the Land Rights Act. On 13 April 1993, Australian and Overseas
Telecommunications Corporation Limited changed its name to Telstra
Corporation Ltd.
2.11.6 By letter dated 28 February 1992, a delegate of the Minister for Lands
and Housing of the Northern Territory approved the grant of an estate in fee
simple in Northern Territory Portion 3586 (and of a similar estate in another area
of land) to Australian and Overseas Telecommunications Corporation Limited.
The letter stated:
Should you wish to accept this offer, please complete under seal the
attached Application for Grant in Fee Simple form and return it within 40
days from the date of this letter to the Regional Director (South),
Department of Lands and Housing, PO Box 1596, Alice Springs NT
0871. You should also include payment of $470.00 made payable to
Receiver Territorys [sic] Moneys being made up of $300 document
preparation fees and $170 lodgement of surrender fees.
The partial surrender documents will be forwarded to the lessees for their
endorsement.
2.11.7 There was published in the Northern Territory Government Gazette No.
G14 on 8 April 1992 a notice, dated 30 March 1992, of a determination under s.
15(2) of the Crown Lands Act (NT) to grant an estate in fee simple in Crown
land, including Northern Territory Portion 3586.
2.11.8 On 7 April 1992, an instrument of partial surrender of Pastoral Lease No.
629 was forwarded by the Department of Lands and Housing to Tempe Downs
Pty Ltd for execution. The executed document was received by the department
on 2 September 1993. It was never registered. In para. 2.7.3, I have set out the
provisions of ss. 120 and 122 of the Real Property Act (NT), relating to
surrender of leases. Although it has since become apparent that a pastoral lease
may not fall within the ordinary meaning of the word “lease” as understood at
common law, as to which see Wik Peoples v. Queensland (1996) 187 CLR 1,
especially at pp. 108–12, 149, 197–8 and 226, it seems to have been assumed for
many years that the real property legislation of the Northern Territory, including
Page 11

the provisions for registration of estates and interests in land, applied to pastoral
leases. If this assumption had validity, it was probably the case that, without
registration, the partial surrender of Pastoral Lease No. 629 was ineffective to
surrender the interest of Tempe Downs Pty Ltd in Northern Territory Portion
3586. See Shell Co. of Australia Ltd v. Zanelli (1973) 1 NSWLR 216, at pp.
220-1, where the New South Wales Court of Appeal was dealing with provisions
of New South Wales legislation similar in form to those operating in the
Northern Territory.
2.11.9 On 15 December 1993, after the application in this land claim had been
received in the office of the Aboriginal Land Commissioner, a delegate of the
Minister for Lands and Housing purported to grant to Telstra Corporation Ltd an
estate in fee simple in Northern Territory Portion 3586. The purported grant was
registered at the Registrar-General’s Office on 21 December 1993. If Northern
Territory Portion 3586 is part of the land the subject of this land claim, the
purported grant of an estate in fee simple is of no effect, in consequence of s.
67A(2) of the Land Rights Act.
2.11.10 On behalf of Telstra Corporation Ltd, it was submitted that Northern
Territory Portion 3586 could not have been the subject of an application under s.
50(1)(a) of the Land Rights Act because, on 9 December 1993, Telstra
Corporation Ltd held an estate or interest in that land, which was an estate or
interest not held by, or on behalf of, Aboriginal people. The provisions to which
I have referred in para. 2.11.5 make it clear that Telstra Corporation Ltd is not to
be regarded as the Crown, or an emanation of the Crown. If, therefore, it held an
estate or interest in Northern Territory Portion 3586, that land was not available
for claim at the date when the application was received in the office of the
Aboriginal Land Commissioner. Counsel for the claimants conceded that
Telstra Corporation Ltd had an estate or interest in Northern Territory Portion
3586, without specifying the nature of the estate or interest which was so
conceded.
2.11.11 On behalf of Telstra Corporation Ltd, it was submitted that, as at 9
December 1993, it had an equitable interest in Northern Territory Portion 3586
or, alternatively, that it had an interest in that land by reason of the right of
occupancy granted by Tempe Downs Pty Ltd in the document referred to in para.
2.11.3. The latter contention may be rejected summarily. A right of occupancy
amounts to nothing more than a licence. See P. Butt, Land Law, 3rd ed., LBC
Information Services, Sydney, 1996, at p. 273. A licence is not an estate or
interest in land, for the purposes of the definition of “alienated Crown land” in
s. 3(1) of the Land Rights Act. See R v. Toohey; Ex parte Meneling Station Pty
Ltd (1982) 158 CLR 327.
2.11.12 It is not clear to me how it is said that Telstra Corporation Ltd had an
equitable interest in Northern Territory Portion 3586 at 9 December 1993. Such
an interest did not arise by reason of any inchoate grant by Tempe Downs Pty
Ltd in the document referred to in para. 2.11.2. The essence of that document
was an agreement by Tempe Downs Pty Ltd to surrender its interest under
Pastoral Lease No. 629 in so much of the land the subject of that pastoral lease
Page 12

as became Northern Territory Portion 3586. The sum of $500 referred to, and
paid subsequently, was consideration for that surrender and for the right of
occupancy granted at the same time, pending action by a third party to perfect a
grant of an estate in fee simple. Tempe Downs Pty Ltd performed its obligation
to surrender part of Pastoral Lease No. 629 when it forwarded the executed
document of partial surrender of the pastoral lease. There was nothing more that
equity would have compelled it to do in respect of that obligation. It is not clear
to me whether any obligation which would have been enforceable in equity fell
upon the Minister for Lands and Housing by reason of the determination of his
delegate to grant an estate in fee simple to Telstra Corporation Ltd. It is true that
the documents speak in terms of offer and acceptance, but the question of
consideration flowing from Telstra Corporation Ltd is a difficult one. As I have
said, the $500 paid to Tempe Downs Pty Ltd was consideration for the partial
surrender of the pastoral lease and the right of occupancy. Whether the sum of
$470, referred to in the letter dated 28 February 1992, could amount to valuable
consideration for the grant of estates in fee simple in two areas of land is a
difficult question; the sum was characterised as fees for document preparation
and lodgment of surrender. Even if it could amount to valuable consideration, I
have no evidence that it was ever paid, or that there was ever a promise to pay it,
prior to 9 December 1993. In the absence of valuable consideration moving
from the promisee, it is hard to see how even an agreement on behalf of the
minister to grant an estate in fee simple would be enforceable in equity, because
of the applicability of the maxim that equity will not assist a volunteer.
2.11.13 An alternative way in which it might be said that an equitable interest
arose in Northern Territory Portion 3586 prior to 9 December 1993 is through
the application of the principles relating to unconscionability. This would
require the creation by the minister of an expectation on the part of Telstra
Corporation Ltd that an estate in fee simple would be granted and reliance on
that expectation by Telstra Corporation Ltd to its detriment, so that it became
unconscionable for the minister not to proceed to make the grant. The building
of the digital radio concentrator on the land might have amounted to sufficient
detriment. The evidence before me does not disclose the existence of such an
expectation, nor that the digital radio concentrator was built in reliance on it.
Indeed, it does not disclose whether the digital radio concentrator was built
before or after 9 December 1993. It may be that, in making the concession that
Telstra Corporation Ltd had an equitable interest in Northern Territory Portion
3586, counsel for the claimants had knowledge of facts which made the
concession proper, but I am unable to make a finding of fact that an equitable
estate or interest existed in that land at the relevant date.
2.11.14 One further possibility exists. It is that Northern Territory Portion 3586
does not fall within the description of the land claimed and is therefore not
subject to claim. Again, it is not easy to reach a conclusion on this point. The
land claimed is described by its Northern Territory Portion numbers and (in part)
by reference to Pastoral Lease No. 629. If the separate identification of Northern
Territory Portion 3586 was sufficient to remove the land from Northern
Territory Portion 689, a description of land as Northern Territory Portion 689
would not comprehend Northern Territory Portion 3586. The separate
Page 13

identification came about upon the approval of the survey plan by the Surveyor-
General (see para 2.11.4). To reach such a conclusion is to ignore the second
part of the description of the land claimed, which is by reference to Pastoral
Lease No. 629. As I have concluded in para. 2.7.6, at the date when the
application was received in the office of the Aboriginal Land Commissioner the
relevant part of the land claimed was still subject to Pastoral Lease No. 629,
because the surrender of Pastoral Lease No. 629 had not taken effect on 2
December 1993 by reason of the application of s. 64(8) of the Pastoral Land
Act. Northern Territory Portion 3586 was part of the land the subject of Pastoral
Lease No. 629, because the partial surrender was never perfected by registration.
It is not possible to treat Northern Territory Portion 3586 as excluded from the
definition of the land claimed in the application.
2.11.15 I am therefore unable to say that Northern Territory Portion 3586 is not
capable of being claimed or is not subject to the claim. Because of the
concession made by counsel for the claimants, no claim to it was pursued. As I
point out in para. 6.7.1, Telstra Corporation Ltd would suffer detriment if
Northern Territory Portion 3586 were to become Aboriginal land under the Land
Rights Act. In the circumstances, I exclude Northern Territory Portion 3586
from my recommendation in para. 8.1 that the land claimed be granted to a land
trust.
2.12 No easement of access to Northern Territory Portion 3586 Telstra
Corporation Ltd also submitted that it had an estate or interest in the land
claimed by virtue of the grant of the right of access referred to in para. 2.11.3. I
am of the view that that document did not create an estate or interest. The
vagueness of the language used to specify the right given, in particular the
choice not to specify a route or a range of possible routes, and the failure of the
document to make any provision for execution by the grantee all make it clear
that what was created was a mere licence. As I have said in para. 2.11.11, a
licence is not an estate or interest in land for the purposes of the relevant
definition in the Land Rights Act.
2.13 Rivers and creeks The land claimed drains generally from west to east.
Within Tempe Downs Station, the Areyonga Creek from the north joins the
Walker Creek (which has as its major tributary the Nineteen Mile Creek) to form
the Palmer River. The Palmer River flows south-east into Middleton Ponds
Station and then turns east to Henbury Station. Mention should also be made of
Petermann Creek, which flows from the west to the east in Tempe Downs
Station and dries up before reaching the Palmer River. All waterways are
ephemeral. None is excluded from either pastoral lease. All are available for
claim.
2.14 Land available for claim Subject to my state of uncertainty about
Northern Territory Portion 3586, as to which see para. 2.11, I therefore find that
the whole of the land claimed is available for claim under the Land Rights Act
and was so at the time when the application was received in the office of the
Aboriginal Land Commissioner.
Page 14

2.15 Physical features of the land claimed In para. 2.13, I have described
the waterways on the land claimed. The only permanent surface water is in
waterholes, which are generally small and found in rocky gorges. The central
and northern portions of the land claimed contain substantial ridge lines,
including portions of the George Gill Range and the James Range, most of the
Levi Range, the entire Middle Range and all of the Petermann Hills, as well as
many lesser ranges and outcrops. The southern portion of the claim area is dry
sandhill country and mixed plains of spinifex, mulga and desert oak. As I have
said, Kings Canyon, a tourist attraction popular for its natural beauty, is to be
found in the adjoining Watarrka National Park. There is much country of great
beauty within the claim area, with numerous escarpments and gorges. The
features to which I have referred are shown on the map in appendix 6.
Page 15

3 LOCAL DESCENT GROUPS
3.1 Luritja identity On one level, the claimants ascribe to themselves an identity as
Luritja people. The word “Luritja” was originally an Aranda word, used to refer to the
Western Desert neighbours of the Aranda people. “Luritja” is a word which
comprehends a number of different dialects, one of which was Martutjara, which
appears to have been the dialect in use in the claim area.
3.2 Composition of groups advanced as traditional Aboriginal owners The
claimants do not assert their land tenure by reference to their membership of the Luritja
or Martutjara language group. Rather, they assert that rights are acquired by reason of
membership of smaller groups, based primarily on descent criteria.
3.3 Descent criteria
3.3.1 The primary criterion of descent on which each of the groups is based is
patrilineal. A person acquires entitlement to country to which his or her father
and father’s father were entitled.
3.3.2 It is obvious that reliance solely on patrilineal descent would result in
groups ceasing to exist if patrilines ceased. Whether for this or for other reasons,
the primary descent criterion is supplemented by other criteria. One is adoption.
A child “grown up” by adults other than his or her biological parents becomes a
member of the family of those adults, and may thereby acquire membership of a
group other than by birth into it. It is common to find claimants who take
country through their adoptive fathers and the fathers of those adoptive fathers.
3.3.3 Another method of supplementing groups, where strict adherence to
patrilineal descent would result in the disappearance of a group, is the
foundation of new patrilines by persons who trace their entitlements to their
mothers’ fathers. A number of claimants in the Urrampinyi group derive their
entitlements from two deceased men, Alec Conway and Jack Coulthard, both of
whom were the sons of non-Aboriginal men. Both lived with and were raised as
part of their mothers’ families and looked to their mothers’ fathers and mothers’
brothers, from whom they acquired membership of the relevant group and rights
in Urrampinyi country. They passed these rights to their own children, who in
turn have passed them on to succeeding generations.
3.4 The meaning of “local descent group” In determining what constitutes a
“local descent group” within the meaning of the definition of “traditional Aboriginal
owners” in s. 3(1) of the Land Rights Act, I have followed what was said by the Full
Court of the Federal Court of Australia in Northern Land Council v. Olney (1992) 34
FCR 470, at pp. 478–85.
Page 16

3.5 Borning rights
3.5.1 The most difficult issue of the composition of groups in this land claim
arises from the fact that the claimants recognise that people acquire rights as a
result of being born on country other than that which they take through descent.
Because desert people were necessarily migratory (as distinct from nomadic)
from time to time, and because a man might live on his wife’s father’s country,
rather than his own father’s country, it was possible for people to be born outside
their fathers’ countries. As a result of the spread of European settlement and the
operations of the pastoral industry, it became more common for people to be
born other than on their fathers’ countries. It is recognised as a person’s
birthright to learn about the site of his or her birth, to be taught its stories and
granted access to its secrets. The claimants describe these rights as “borning”
rights.
3.5.2 In his anthropologist’s report (exhibit CLC2), at p. 33, Dr Lee Sackett, the
principal anthropologist on behalf of the claimants, said:
By no mean[s] all people with ‘borning’ claims seek to exercise their
rights. On the other hand, some claimants, through application and
politicking, have moved from gaining rights in their borning places,
to holding rights in the other sites making up the clusters that are the
countries of their birth. In the process, they have come to hold the
country.
3.5.3 I am satisfied that this is a process which has occurred and that some of
the claimants have exercised their rights and become members of the relevant
groups which hold countries in which their birth sites are situated. It is a
difficult question whether the rights of such people can be given effect in terms
of the definition of “traditional Aboriginal owners” in the Land Rights Act.
Relying on Northern Land Council v. Olney, and particularly the passage to
which I have referred, counsel for the Attorney-General for the Northern
Territory submitted that “borning” is not a principle of descent and that people
with borning rights consequently cannot become members of a local descent
group within the meaning of the definition. I do not accept that this is so. In the
passage to which I have referred, the Full Court of the Federal Court of Australia
accepted the view that a local descent group is a collection of people related by
some principle of descent, who may be recruited on a principle of descent
deemed relevant by the claimants. The court added comments intended to
elucidate this proposition. One such comment, at p. 485, was:
. . . although the underlying principle of recruitment to a group must
be some form of descent, that need not be seen in a biological sense,
and persons not claiming biological affiliation may be adopted into
and become part of the group.
3.5.4 It appears that the Full Court was accepting that, whilst a group must be
based primarily on a principle or principles of descent, it is possible for persons
who do not rely on descent criteria to be members of such a group. For instance,
Page 17

I have had experience of claims in which groups whose numbers were declining
have supplemented their membership by recruiting people with appropriate
kinship classifications and affiliations to sites on different parts of the dreaming
tracks of dreamings held by members of the groups. I have taken the view that
the rights of people so recruited to local descent groups are recognised by the
Land Rights Act. See, for instance, my report in the Elsey Land Claim No. 132,
dated November 1997, at para. 3.3.5. Provided that the group can still be called
properly a local descent group, i.e. that the group is based primarily on a descent
criterion or descent criteria, there is no reason why persons who claim
entitlements other than by descent should not be recruited to the group. I have
therefore taken the view that people who have activated their borning rights in
respect of sites on the land claimed, and who have become recognised as having
rights equivalent to those of members of a group who have acquired their
membership by descent, have become members of the same group. They are
entitled to be referred to as members of the relevant local descent group.
3.6 Helpers There are those who are not members of the relevant groups who are
nonetheless recognised as having rights of various kinds in relation to the sites and the
land of the groups. The claimants call them “helpers”. They include people who have
rights to other, generally neighbouring, areas through groups whose members hold land
outside the claim area; persons whose mothers, but not fathers, are or were entitled by
membership of groups to sites and land within the claim area; persons who have married
members of the claimant groups; persons who have associations with dreamings that
cross the claim area; persons who were born on the claim area but whose rights have not
ripened into full ownership; and persons who have grown up and spent time working
and living on the claim area and have acquired knowledge in relation to its sites and
dreamings. I have not included persons who are in these categories as members of the
groups, because of the difficulty of fitting them within the definition of “traditional
Aboriginal owners” in the Land Rights Act. Their importance and their contributions
should not be overlooked, however. Some of them, such as Pastor Peter Bulla and
Nugget Ngalkin, are important figures in the performance of rituals relating to country
and repositories of enormous amounts of knowledge concerning dreamings and sites.
The former was most helpful in contributing to the evidence in the inquiry relating to
this land claim. The latter lent support by his presence.
3.7 The Urrampinyi group
3.7.1 The Urrampinyi group is made up of descendants of two deceased men,
Grantham (who also had an Aboriginal name, Untunu) and Kangkurru. Those
two men are regarded as having been brothers in a biological sense. They are
represented by neighbouring hills within the claim area, at Kulantju [A] (site
25). Grantham had two daughters, Tjintji and Tjungura (also known as Clara).
Each bore a son of a non-Aboriginal man. Tjintji’s son was Jack Coulthard.
Tjungura’s son was Alec Conway. In effect, Jack Coulthard and Alec Conway
founded new patrilines within this group, according to the principle of descent to
which I have referred in para. 3.3.3.
Page 18

3.7.2 Jack Coulthard’s oldest son, who was adopted, was Billy Malthouse, who
is now deceased. He is survived by his daughter, Alice Ngalkin, who is accepted
as a member of the group. She is married to Nugget Ngalkin, a senior and
highly respected man in the region in which the claim area is situated. Nugget
possesses a great deal of knowledge relating to ritual and land tenure in the
region. He is not a claimant. Nugget and Alice Ngalkin have a number of
children, only one of whom, Colin Ngalkin, is a claimant. On the principles of
descent to which I have referred in para. 3.3, none of the children would be able
to claim through Alice. Colin, however, was born on the claim area and is
therefore entitled to activate his borning rights, on the basis of the principles to
which I have referred in para. 3.5. There is no doubt that he has activated them.
Nor is there any doubt that he has acquired a great deal of knowledge about the
claim area from, amongst others, his father. The evidence is not entirely clear
about the extent to which Colin is accepted as a member of the Urrampinyi
group. At one point, Syd Coulthard described him as a bit shy and still a bit too
young to talk about Urrampinyi country. This may have been no more than an
example of differentiated levels of knowledge or rights to knowledge within a
group, on the basis of age or status. Dr Sackett described Colin as still learning,
but considered him to be an “owner” of Urrampinyi country. Dr Sackett
expressly refrained from placing him in the same category as Kunmanara
Breaden (as to whom, see para. 3.11), but this may have been by reason of
Kunmanara’s greater knowledge, age and status. On balance, I have included
Colin Ngalkin’s name in the list of members of this group.
3.7.3 The senior member of this group is Syd Coulthard, a son of Jack
Coulthard. His siblings, Kevin Coulthard, Selma Coulthard and Trevor
Coulthard, are also members. The children of Syd, Kevin and Trevor are also
included. Syd’s children are Stephen, Raymond, Lynette and Kathy Coulthard,
Gillian Seven (an adopted daughter, who should not be confused with her
mother, who bears the same name but who is not a claimant), Elizabeth Jacko
(who is also adopted), Rodney Coulthard, Trevor Coulthard (not to be confused
with Syd’s brother of the same name) and Adeline Driffen Coulthard (who is
also adopted). Syd’s grandson, Sydie Jacko, who is the son of Rodney
Coulthard, is also included. Kevin Coulthard’s children are Hayley, Carita,
Rufus, Roseanne, Edrick and Alisha Coulthard. The last-mentioned is an
adopted daughter of Kevin. The children of Syd’s brother Trevor are Stephen,
Helen and Julie Coulthard. The remaining member of the Coulthard family
included in this group is Renita Impu, whose father was Peter Coulthard, a
deceased brother of Syd.
3.7.4 According to the genealogy in evidence for this group, Alec Conway is
survived by four daughters. The oldest is Betty, also known as Biddy, Conway.
She gave evidence, confirming her membership of the Urrampinyi group. Her
half-sister, Pamela Conway, also gave evidence of her membership of the group.
No evidence was given by or about the other two sisters, Margaret and Patricia
Conway. I have therefore not included them in the group, although it is possible
that further investigation would confirm their membership.
Page 19

3.7.5 Kangkurru had a son called Ben Ngalaia, now deceased. In turn, Ben had
three sons. The oldest was Michael Ngalaia, now deceased. He is survived by
Lorraine, Lucy, Daniel and Wilfred Ngalaia, who are all members of the group.
Daniel’s daughters, Jessie and Virginia Ngalaia, are also included. Oliver
Ngalaia is a surviving son of Ben Ngalaia and is a member of the group. So are
his adopted daughters, Rosalie Namatjira, Kerry-Anne Namatjira, Jane Clements
and Bonita Clements. Ben Ngalaia’s third son is deceased and left no children.
3.7.6 Included amongst the claimants are Victoria, Beverley, Harold, Christine
and Adeline Cameron. The genealogy shows the late Toby Cameron, the father
of Victoria and Beverley, to have been the son of an adopted son of Kangkurru.
Harold, Christine and Adeline are shown as children of the late Wilfred
Cameron, a son of Toby. No evidence was given by or about any member of the
Cameron family. It was recorded at Iltjitjari (site 41), when restricted women’s
evidence was taken, that Adeline Cameron was present. She was described as a
schoolgirl. Betty Conway gave evidence that “Camerons” were part of the
Urrampinyi group. Dr Sackett included them in general terms, both in his
report and in his oral evidence, but the latter revealed that he had not seen any
member of the Cameron family on the land claimed. In the absence of any
evidence confirming the genealogy, and of evidence that the claimants as a body
accept the Camerons as part of the Urrampinyi group, I have taken the view
that their entitlement to be members of the group has not been confirmed and
have not included them.
3.7.7 The following is a list of the members of the Urrampinyi group. The
names of children are indented below the names of their parents where the
parents are surviving members of the group.
Alice Ngalkin
Colin Ngalkin
Syd Coulthard
Stephen Coulthard
Raymond Coulthard
Lynette Coulthard
Kathy Coulthard
Gillian Seven
Elizabeth Jacko
Rodney Coulthard
Sydie Jacko
Trevor Coulthard
Adeline Driffen Coulthard
Kevin Coulthard
Hayley Coulthard
Carita Coulthard
Rufus Coulthard
Roseanne Coulthard
Edrick Coulthard
Page 20

Alisha Coulthard
Selma Coulthard
Trevor Coulthard
Stephen Coulthard
Helen Coulthard
Julie Coulthard
Renita Impu
Betty/Biddy Conway
Pamela Conway
Lorraine Ngalaia
Lucy Ngalaia
Daniel Ngalaia
Jessie Ngalaia
Virginia Ngalaia
Wilfred Ngalaia
Oliver Ngalaia
Rosalie Namatjira
Kerry-Anne Namatjira
Jane Clements
Bonita Clements
Kunmanara Breaden*
Bessie Liddle*
* See para. 3.11.
3.8 The Wirra group
3.8.1 The Wirra group are all descendants in the patriline from a deceased man
called Friday Imitja. He had two wives. Tjintji (to whom I have referred in
para. 3.7.1) was the mother of Archie Coulthard, now deceased. Archie is
survived by six children, who are members of the group. They are Ludwig,
Brian, Louise, Janet, Lola and Steven Coulthard. The children of the males in
Archie Coulthard’s family are also members of the group. Ludwig Coulthard is
the father of Christopher and Usan Coulthard. Brian Coulthard is the father of
Roderick, Wallace and Neil Coulthard. Steven Coulthard has one son, Michael
Coulthard.
3.8.2 The remaining members of the group are descendants of Friday Imitja and
his other wife, who had two sons, Atap Imitja and Mick Driffen, both of whom
are now deceased. Leslie Driffen is a surviving son of Atap. He and his
descendants in the male line are members of the group. Leslie’s children are
Gladys, Alwyn and Marcus Driffen. Marcus’s children are Christa and Jo-Ella
Driffen. Leslie’s grandchildren also include Maria Imitja (also known as Maria
Driffen), Ivan Driffen Junior, Ann-Maree Driffen, Jocelyn Driffen, Marissa
Page 21

Driffen, James Driffen and Shaun Driffen, who are children of the late Robert
Driffen, who was a son of Leslie. Esma and Rupert Driffen are children of Ivan
Driffen Junior. Gloria McCormack is the surviving daughter of the late Claude
Imitja, who was a son of Atap Imitja. Elizabeth and John Imitja are surviving
children of the late Nelson Imitja, also a son of Atap. Epana Namatjira is a
surviving daughter of Atap Imitja. Ivan Driffen (also known as Ivan Imitja) is a
surviving son of Atap Imitja. He and his children, Virginia and Wendy Imitja
and Doreen and Veronica Driffen, are also members of the group. The
genealogies show a person by the name of Valdawin Imitja as a surviving child
of Atap Imitja. No evidence was given by, or about, her, so I have not included
her.
3.8.3 The surviving children of the late Mick Driffen are Ron (also known as
Ronnie) Driffen and Amy Moneymoon. They are members of the group, along
with Ronnie’s children, Rosie and Phillip Driffen.
3.8.4 The following is a list of the members of the Wirra group, arranged in a
similar fashion to the list in para. 3.7.7.
Ludwig Coulthard
Christopher Coulthard
Usan Coulthard
Brian Coulthard
Roderick Coulthard
Wallace Coulthard
Neil Coulthard
Louise Coulthard
Janet Coulthard
Lola Coulthard
Steven Coulthard
Michael Coulthard
Leslie Driffen
Gladys Driffen
Alwyn Driffen
Marcus Driffen
Christa Driffen
Jo-Ella Driffen
Maria Imitja/Driffen
Ivan Driffen Junior
Esma Driffen
Rupert Driffen
Ann-Maree Driffen
Jocelyn Driffen
Marissa Driffen
James Driffen
Shaun Driffen
Page 22

Gloria McCormack
Elizabeth Imitja
John Imitja
Epana Namatjira
Ivan Driffen/Imitja
Virginia Imitja
Wendy Imitja
Doreen Driffen
Veronica Driffen
Ron (Ronnie) Driffen
Rosie Driffen
Phillip Driffen
Amy Moneymoon
3.9 The Manyari group
3.9.1 The Manyari group consists principally of the descendants of the late
Rolly Katawiya. Beverley Carroll (also known as Beverley Copp) is the
surviving daughter of Georgie Carroll, who was an adopted son of Rolly. Janet,
Irene, Ingrid, Jacob and Edith Carroll are surviving children of Sammy Carroll, a
natural son of Rolly. Martin Carroll, the son of Jacob Carroll, is also a member
of the group. The genealogy for this group also shows a son of a deceased
brother of Janet, Irene, Ingrid, Jacob and Edith. There was no evidence by or
about this person, so I have not included him.
3.9.2 Daphne Puntjina was born at Puyurlurtu (Tent Hill), which is within the
claim area, west of Manyari (site 3), on the country of the Manyari group.
There is no doubt that she has activated her borning rights and has become
recognised as the senior female member of the Manyari group. I have included
her on this basis.
3.9.3 The following is a list of the members of the Manyari group, organised in
a similar fashion to the list in para. 3.7.7.
Beverley Carroll/Copp
Janet Carroll
Irene Carroll
Ingrid Carroll
Jacob Carroll
Martin Carroll
Edith Carroll
Daphne Puntjina
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3.10 The Wilpiya group
3.10.1 The Wilpiya group is a small group descended from the late Tjantji,
whose non-Aboriginal name was Roy Petrus. His surviving children are Peggy
Branson and Toby Jacob. Toby has an adopted son called Edgar McCormack.
Toby gave evidence, in the presence of other claimants, that Edgar would take
country from him, so I have included Edgar. In turn, Edgar has three children,
Jonathon, Jacinta and Xavier McCormack. Dr Sackett’s opinion was that these
grandchildren of Toby have entitlements from Toby. On that basis, I have
included them.
3.10.2 The following is a list of the Wilpiya group, organised in a similar
fashion to the list in para. 3.7.7.
Peggy Branson
Toby Jacob
Edgar McCormack
Jonathon McCormack
Jacinta McCormack
Xavier McCormack
3.11 The Breaden group
3.11.1 Shortly prior to the commencement of the claim hearing, an additional
genealogy was prepared, which became exhibit CLC4. This is a genealogy of
the descendants of a man called Alan Breaden and his son, Johnson Breaden,
both of whom are deceased. In his final written submissions, counsel for the
claimants submitted that I should find that there existed a group, which
constituted a local descent group for the purposes of the definition of “traditional
Aboriginal owners” in the Land Rights Act, consisting of some of these
descendants. The putative group was composed of Kunmanara Breaden; his
children, grandchildren and great-grandchildren; and his sisters, Bessie Liddle,
Ethel Maloney and Zona Croker (also known as Zona Breaden). These persons
were said to be members of a descent group on the basis that the mother of
Kunmanara, Bessie, Ethel and Zona was a woman called Dangawana, whose
non-Aboriginal name was Glenda.
3.11.2 The group was put forward as having joint affiliations and responsibility
with the Urrampinyi group for the country of the Urrampinyi group. It is
necessary to consider the various connections of these people with the claim area
in order to evaluate their claim to constitute a local descent group with
entitlements to it according to Aboriginal law.
3.11.3 It is not suggested that any of the members of this putative group
acquired any entitlements within the claim area from Johnson Breaden and Alan
Breaden. Nor is it suggested that they acquired any entitlements from
Dangawana’s father, on the basis of the principle of descent to which I have
referred in para. 3.3.3. Dangawana was born at Unturu (site 17), but it is not
known whether she activated her borning rights to any extent, and it does not
Page 24

appear that she was accepted as a member of the Urrampinyi group in her own
right. Even if she had been, it is not easy to see how she could have passed
entitlements to her children on the principles to which I have referred in para.
3.3. There is evidence that, from his mid-teens onward, Kunmanara Breaden
developed a relationship with the late William Ungwanaka. This relationship
appears to have been of sufficient strength to be described as the relationship of
adopted son and adoptive father. William Ungwanaka passed to Kunmanara
Breaden knowledge relating to dreamings known as Kuniya and Wati Kutjarra.
Jack Coulthard (see para. 3.7.1) also passed on knowledge of these dreamings to
Kunmanara Breaden. These dreamings connect Wanmarra, just off the claim
area to the west, with Irrbmangkara, known as Running Waters, on Aranda
country to the east of the claim area. Evidence supporting these assertions was
given in the Lake Amadeus Land Claim No. 44. Kunmanara Breaden’s claim in
this respect appears to have been the basis on which approximately fifty hectares
of land, on which Wanmarra is situated, were excised from Tempe Downs
Station, prior to the excision of Watarrka National Park. That area is shown in
the map in appendix 6. It is Northern Territory Portion 2424. Wanmarra
Aboriginal Corporation has an estate in fee simple in it. Kunmanara Breaden
and his family reside there. He was told by William Ungwanaka to go and stop
at Wanmarra. It is important to note that Irrbmangkara is in Aranda country
and that William Ungwanaka was an Aranda man. Wanmarra, and the sites on
the claim area associated with the Wati Kutjarra dreaming, are in Luritja
country. It is not clear to me to what extent William Ungwanaka was able to
pass to Kunmanara Breaden entitlements to Wanmarra. Even assuming he had
done so, it is not clear how Kunmanara Breaden’s sisters could have acquired
such entitlements from their brother. I am not satisfied that the putative Breaden
group has any entitlement by way of patrilineal descent, adoptive or otherwise,
to any part of the claim area.
3.11.4 Kunmanara Breaden was born at Urrampinyi (site 20), where the Tempe
Downs Station homestead was and is situated. Bessie Liddle, Ethel Maloney
and Zona Croker were born at Iltjitjari (site 41), where the Middleton Ponds
Station homestead was situated. Each thereby acquired borning rights in respect
of a site on the claim area. There is no doubt that Kunmanara Breaden and
Bessie Liddle have activated those borning rights. Each has become highly
knowledgeable with respect to the dreamings associated with sites on
Urrampinyi country generally and embedded in the rituals in which the
dreamings with respect to those sites are celebrated. I am satisfied that each has
been accepted as a member of the Urrampinyi group. There was some conflict
of evidence with respect to Kunmanara Breaden on this issue. It appears that
there is a difference of opinion between Kunmanara Breaden and Syd Coulthard
on whether a commercial cattle operation should be run on the land claimed.
Despite this difference of opinion, Syd Coulthard acknowledged on a number of
occasions the entitlement of Kunmanara Breaden with respect to Urrampinyi
country. In the case of Bessie Liddle, the acknowledgment of her role was much
clearer. She is a regional ritual leader, but the distinction between the roles
which she played in the performance of women’s business at Iltjitjari (site 41)
Page 25

and Manyari (site 3) made it clear that she had a personal entitlement with
respect to Urrampinyi country, as distinct from a tuition role with respect to
Manyari country.
3.11.5 It is clear to me that the entitlement of the putative Breaden group to be
regarded as a local descent group with respect to the claim area cannot be made
out. The senior members of that group acquire their interests in the claim area
by having been born on the claim area, and not by descent. Their invocation of
the fact that their mother was born on the claim area should be seen, in my view,
as an attempt to strengthen their own claims through borning rights, rather than
as an attempt to claim by descent from their mother. Thus, so far as affiliations
and responsibility with respect to sites on the claim area are concerned, there is
no descent criterion on which the Breaden group is based.
3.11.6 Because their borning rights have expanded into full entitlement to the
Urrampinyi area, I have added the names of Kunmanara Breaden and Bessie
Liddle to the list of the members of the Urrampinyi group in para. 3.7.7. The
position with respect to Ethel Maloney and Zona Croker is not so clear. There
was less focus on them. They have not achieved the status of ritual leadership
which Kunmanara Breaden and Bessie Liddle have. Nor is it clear that other
members of the Urrampinyi group have accepted that the borning rights of
Ethel Maloney and Zona Croker have expanded into full-scale rights of
ownership of Urrampinyi country. Similarly, it is not yet clear whether the
children, grandchildren and great-grandchildren of Kunmanara Breaden have
been accepted as inheriting his entitlement. I have therefore not included their
names in the list of the members of the Urrampinyi group. The situation with
respect to Ethel Maloney and Zona Croker and Kunmanara Breaden’s
descendants must be regarded as fluid, so that the possibility of their being
recognised as members of the group in the future is a real one.
3.12 Local descent groups Each of the Urrampinyi, Wirra, Manyari and Wilpiya
groups, to which I have referred in this chapter, answers the description of a local
descent group for the purposes of the definition of “traditional Aboriginal owners” in s.
3(1) of the Land Rights Act. Each group is local, in the sense that it is associated with a
particular area of land. The connection between the members of each of those groups
and an area of land, so far as it affects this land claim, is dealt with in chapter 4. Each
group is composed primarily of people who satisfy the criteria of descent accepted by
the claimants for the purposes of their system of land tenure; in a few cases, I have
added people whose borning rights have expanded into rights of full membership of the
group concerned.
Page 26

4 COMMON SPIRITUAL AFFILIATIONS, PRIMARY SPIRITUAL
RESPONSIBILITY AND RIGHTS TO FORAGE
4.1 Groups connected with areas of the land claimed Each of the local descent
groups described in chapter 3 is connected with part of the land claimed. The areas on
which the separate groups focus are not necessarily completely separate. As is usually
the case with Aboriginal land tenure systems in semi-arid areas, there tends to be a focus
on sites of significance, which are often sites associated with the practicalities of
survival in a dry environment. Sites tend to be found on or near watercourses,
particularly at permanent waterholes. Sharply defined boundaries between areas
associated with different groups are unusual in such circumstances. There is a tendency
for different groups to share sites or have adjacent sites, with a consequent overlap
between the areas claimed by those groups. There is also a tendency for land between
sites to be the subject of overlapping claims, or for it to be unclear to which group’s
estate it belongs.
4.2 The nature of the connection
4.2.1 The connection between a group and a particular site of significance is
provided by entities described as tjukurrpa, which are glossed as “dreamings” in
the English language. These are creatures which participated in the formation of
the landscape, the naming of its features and the imparting to humans of the
things which make up the law for a particular group, namely language, culture,
song and ceremony. The term tjukurrpa is also a reference to the period during
which these events occurred. Tjukurrpa may once have adopted human form but
now appear as animals or other phenomena. Their continued presence and
influence is acknowledged and the connection between tjukurrpa, people and
country is maintained through ceremony and song.
4.2.2 Tjukurrpa may be of three kinds. There are long-distance travelling
tjukurrpa. There are regional travelling tjukurrpa. Different parts of the tracks
followed by travelling tjukurrpa may belong to different groups of people. A
group will have responsibility for a defined part of a dreaming track. The sites
along that part of the track and the country surrounding them will belong to that
group. It is common for people to say that they take a dreaming from another
(often named) group at a particular site and carry it through their country to hand
it on to another group at another named site. The handover points, in a sense,
will mark the boundary of the estate of a particular group. The third kind of
tjukurrpa is localised, being associated with only one site, or perhaps a small
cluster of sites.
4.2.3 It follows that the acquisition of both membership of a land-holding group
and rights to a particular tjukurrpa in respect of particular sites and land is
primarily a matter of descent. The descent criteria are those to which I have
referred in para. 3.3, with the addition of the borning rights criteria, to which I
have referred in para. 3.5.
Page 27

4.3 The test for common spiritual affiliations
4.3.1 The proper approach to the determination of that element of the definition
of “traditional Aboriginal owners” in s. 3(1) of the Land Rights Act which
requires common spiritual affiliations to a site or sites on the land was laid down
by the Full Court of the Federal Court of Australia in Northern Land Council v.
Olney (1992) 34 FCR 470, at pp. 487–8. It is unnecessary for me to set out that
passage in full. The court drew attention to the need to ascertain the existence of
spiritual affiliations on the part of individual members of a group and then to
inquire whether those affiliations are common to the members of the group or
some of them. Reference was made to the exclusion of members of a group who
lack the requisite spiritual affiliation because of age or otherwise. This does not
appear to have been intended to add age as an element of the statutory definition
of “traditional Aboriginal owners”. Above all, the court recognised, at p. 487,
that the task of the Aboriginal Land Commissioner “must vary depending upon
the way the evidence is presented”.
4.3.2 This claim was presented on the basis that the acquisition of spiritual
affiliations is primarily a matter of descent. If a person acquires them by birth or
adoption, those spiritual affiliations will give rise to rights which may be
invoked at any time during the life of that person. The existence of the
affiliations is not dependent upon any particular age or any particular level of
knowledge. Only in the case of borning rights is it necessary for a person to
acquire knowledge and to seek to participate in the performance of ritual and the
other tasks necessary for the preservation of the connection between people and
sites and for caring for country.
4.3.3 Knowledge in Northern Territory Aboriginal cultures is recognised widely
as a commodity which is imparted progressively to people who possess the
requisite affiliations and have attained sufficient maturity and responsibility to
be entrusted with a particular level of knowledge. There are cases in which
senior people, widely acknowledged as capable of safeguarding and not
misusing knowledge, are the repositories of enormous amounts of knowledge
relevant to whole regions. Such persons perform useful functions, particularly in
safeguarding the knowledge for the benefit of those who are entitled to it. They
can be trusted not to use the knowledge for their own purposes by claiming to
have it in the capacity of those with particular affiliations to the sites concerned.
In the present claim, Pastor Peter Bulla demonstrated broad knowledge of the
tjukurrpa for groups of which he did not claim membership. Bessie Liddle,
Daphne Puntjina and Kunmanara Breaden also demonstrated detailed knowledge
of tjukurrpa and ritual extending beyond the areas of the groups of which I have
found them to be members. Joyleen Abbott, a half-sister of Kunmanara
Breaden, who was not born on the claim area but spent a considerable amount of
her early life on it, also demonstrated that she was very knowledgeable about
regional tjukurrpa and ritual.
4.3.4 It might be possible for persons born or adopted into a descent group, and
thereby acquiring spiritual affiliations, to reject or abandon them. In the absence
of rejection or abandonment, the overwhelming likelihood is that the members
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of the local descent groups to which I have referred in chapter 3 will be drawn
into the ritual life of the claimants generally in relation to the country of the
particular group.
4.3.5 For these reasons, except in relation to those who have activated their
borning rights, I have reached my findings as to the spiritual affiliations of the
members of the various groups without regard to their ages or to any level of
knowledge which they might or might not possess. I have based my findings on
the proposition that they, as members of the groups, have acquired their
affiliations by birth or by the other descent criteria to which I have referred.
Unless they show an inclination not to pursue the rights which those affiliations
give them, they will in due course acquire such knowledge as they have the
capacity to acquire. For instance, Oliver Ngalaia’s life history has been one in
which he has been deprived of opportunities to learn about the country to which
he has inherited rights. He is nevertheless recognised as, and recognises himself
to be, a senior member of the Urrampinyi group, with obligations to learn and
participate in the business of the group in relation to its country.
4.4 Urrampinyi country
4.4.1 The country of the Urrampinyi group covers most of the claim area.
Sites on Urrampinyi country are associated with a number of tjukurrpa, both
travelling and local.
4.4.2 There is a tjukurrpa story relating to three travelling beings, the details of
which are secret business of men. The tjukurrpa came from the south, from the
region of Uluru (Ayers Rock). The members of the Urrampinyi group take it
over at Pulankupinitjungkunta (not shown on the site map), to the south of the
claim area. The tjukurrpa visits Kulantju [C] (site 27), Kaltjiti (site 28),
Ngangkarli (site 29), Ngarkinti (site 30), Antai (site 31), Tjaaukiri [B] (site 16),
Unturu (site 17) and Ilararri (site 10). The tjukurrpa finishes at Ilararri (site
10) and re-emerges in Aranda country. Within the claim area, it is also
associated with Pulalpatarrka (site 23) and Alyuruku (site 24), both in the west
of the claim area. There is a song and a ceremony associated with this secret
tjukurrpa.
4.4.3 Another important secret men’s tjukurrpa intersects with the first. It
originates at a site called Amiyuka (not shown on the site map), in Aranda
country on Palmer Valley Station. The members of the Urrampinyi group take
responsibility for this tjukurrpa from Mutikutjarra (not shown on the site map)
on Henbury Station. The tjukurrpa travels to Alyumuru (not shown on the site
map) (a waterhole on the claim area, between Ukaka (site 44) and Iltjitjari (site
41)), Ukaka (site 44), Wanapaltjil [B] (site 40), Ituntu (site 33), Kurtitji (site 32),
Urrampinyi (site 20), Ngarnka (site 18), Unturu (site 17), Tjaaukiri [A] (site 14),
Ulkulka (site 13), Mingatjarta (site 12) and Tatulma (site 1). Tatulma (site 1) is
off the claim area, on the Haasts Bluff Aboriginal Land Trust. The Urrampinyi
group continues to take responsibility for this secret men’s tjukurrpa until a site
Page 29

called Tjukalka (not shown on the site map), also known as Camel’s Hump.
There is a song for this tjukurrpa which is still used in appropriate ceremonies.
4.4.4 A long-distance travelling tjukurrpa associated with the claim area is
Kungka Kutjarra, a pair of travelling women, pursued by a man called Arapi, or
Kurlpara, who changes his appearance from time to time. The details of this
tjukurrpa are secret to women and there is a secret women’s ceremony relating
to it. It comes from at least as far as a site called Mantarur (not shown on the
site map) in South Australia, by way of Katatjuta (not shown on the site map)
(known as the Olgas) and the Lake Amadeus area, to the claim area and
continues on to Alice Springs, where a site at or near the Old Telegraph Station
is associated with it. Within the claim area, the tjukurrpa visits Mingatjarta (site
12), Minpurru (site 4), Walatja (not shown on the site map), Puyurlurtu (not
shown on the site map, also known as Tent Hill) and Manyari (site 3). The first
two are shared between the Urrampinyi and Manyari groups. Walatja,
Puyurlurtu and Manyari (site 3) are on the claim area and are within the country
of the Manyari group.
4.4.5 There are two tjukurrpa which link Wanmarra, to the west of the claim
area, with Irrbmangkara (not shown on the site map), which is known as
Running Waters and is in Aranda country, to the east. Both of these tjukurrpa
cross the claim area. The first is known as Intulkuna or Kuniya. It is a carpet
snake, which visits Intulkuniwarra (site 19) and Urrampinyi (site 20). The latter
is the site of the Tempe Downs Station homestead. The Intulkuna is associated
with the Urrampinyi group with respect to those two sites in the claim area.
The other tjukurrpa linking Wanmarra and Irrbmangkara is Wati Kutjarra, two
travelling men named Lupita and Arimula. Lupita was jealous of Arimula’s
success at gathering good food. At Wanapaltjil [C] (site 43), within the claim
area, Lupita acquired a “boning”, or poison, stick, with which to kill Arimula,
but was unable to catch him. They travelled to Irrbmangkara, where they
remain. Within the claim area, Ilararri (site 10) and Iltjitjari (site 41) may also
be associated with this tjukurrpa, but it is not clear on the evidence whether the
members of the Urrampinyi group have responsibility for those sites through
that tjukurrpa. The evidence relating to this tjukurrpa was given by Kunmanara
Breaden, as to whose association with it, see para 3.11.3.
4.4.6 Several local tjukurrpa are associated with sites on Urrampinyi country.
They include: Ngintaka, or perentie, at Pulalpatarrka (site 23); Warru, or rock
wallaby, at Kulpimara (site 38); Karlaya, or emu, at Wanapaltjil [A] (site 36);
Papa, or dog, at Ituntu (site 33); Iltjitjari, or lizard, at Iltjitjari (site 41), the site
of the former Middleton Ponds Station homestead; Ngarnngi, or frog, at Ukaka
(site 44), which is shared with the Wilpiya group; and Piwi, or owl, at Tjaaukiri
[A] (site 14). At Iltjitjari (site 41), claimant women and non-claimant women
performed a ceremony which is secret to women and relates to a secret women’s
tjukurrpa associated with the site. There are also a couple of sites at which there
are local secret men’s tjukurrpa.
Page 30

4.4.7 Urrampinyi country also takes in Anngu (site 37); Purnukurrkurr (site
42) (also known as Desert Oak Hill); and Kurrkuwalatja (site 45), where the
Urrampinyi group’s Coulthard family has established an out-station.
4.5 Wirra country The country of the Wirra group is based on Wirra [A] (site 6)
and Wirra [B] (site 7) within the claim area. The tjukurrpa associated with these sites
are Maku, or witchetty grub, and Kapi, or rain. The detail of these tjukurrpa is secret to
men. There is a song associated with the rain dreaming.
4.6 Manyari country The members of the Manyari group have affiliations through
the Kungka Kutjarra tjukurrpa to Manyari (site 3), Walatja (not shown on the site map),
Puyurlurtu (not shown on the site map, known as Tent Hill) and Ulpulpa (site 2) on the
claim area. As I have said in para. 4.4.4, the Manyari group shares responsibility for
Mingatjarta (site 12) and Minpurru (site 4) with the Urrampinyi group through this
tjukurrpa. The Manyari group has sole responsibility for Manyari (site 3), which is an
important site for the tjukurrpa, at which features of the landscape show the travels of
the two women and ceremonial items used by them.
4.7 Wilpiya country The Wilpiya group is named after a site, not shown on the
site map, in the Kernot Ranges to the south of the claim area. The group shares Ukaka
(site 44) in the claim area with the Urrampinyi group through the localised Ngarnngi,
or frog, tjukurrpa (see para. 4.4.6). The group also holds part of the track of a longdistance
travelling dreaming called Kuningka, or native cat, the details of which are
secret to men. Toby Jacob gave evidence that his part of the Kuningka track comes
right up to Middleton Ponds, where the dreaming interacts with the Kungka Kutjarra
(see para. 4.4.4). This may have occurred at Iltjitjari (site 41), but the evidence is not
clear. All that can be said is that, in addition to their affiliation with Ukaka (site 44), the
members of the Wilpiya group may have affiliations to a site or sites on the land
claimed through the Kuningka.
4.8 Common spiritual affiliations It follows from what I have said that the
members of each of the four local descent groups to which I have referred in chapter 3
have common spiritual affiliations with sites on the land claimed. The spiritual
affiliations of the members of each group are held in common with the other members
of that group. They are so held as a result of the acquisition of rights and
responsibilities in respect of those sites, through the tjukurrpa relating to those sites, by
the principles of descent referred to in chapter 3 and, in some cases, as a result of the
activation of borning rights and the acceptance of persons activating them as members
of the group concerned.
4.9 Primary spiritual responsibility
4.9.1 The affiliations to which I have referred in para. 4.8 give rise to spiritual
responsibility on the part of the members of each group for the sites concerned
and for the land that surrounds them. In order to satisfy the definition of
“traditional Aboriginal owners” in the Land Rights Act, this spiritual
responsibility must be “primary”. In the case of each group, the spiritual
affiliations to the sites to which I have referred give rise to a spiritual
responsibility which is primary, in the sense that it is ahead of that of any other
Page 31

people who hold the same tjukurrpa. In other words, the evidence identifies the
members of the claimant groups as those who have primary spiritual
responsibility for those portions of the tracks of the relevant travelling tjukurrpa
which enter or pass through the land claimed. Spiritual responsibility for sites
and land is exercised to a high degree by the performance of ceremony. With
the exception of the Wilpiya group, there is abundant evidence that ceremonial
activity continues to take place, celebrating the connection between members of
the groups and sites on the land claimed through tjukurrpa. In the case of the
other three groups, there is evidence of a song or songs. In some cases, there are
dances. On the eve of the commencement of the hearing, I witnessed the
performance of a public ceremony, involving singing and dancing. On two
occasions during the hearing, claimant women sang and danced portions of
ceremonies relating to sites on the land claimed. These performances took place
during sessions restricted to women. Similarly, during sessions restricted to
men, claimant men and other men who knew the business sang songs celebrating
the connection between the relevant tjukurrpa and sites on the land claimed.
There was a considerable amount of singing by men in vehicles while travelling
between sites. There is every indication that younger members of the group are
being educated in the appropriate songs and dances and, as they acquire age and
status, will take their rightful places in the performance of ceremonies. Much
evidence was given as to the authority of members of groups to speak for certain
sites and the areas around them, which authority comes ahead of those who
might have attachments to the same tjukurrpa in other locations. Again, there is
every indication that younger members of the group are being educated, so that
they will be able to speak for sites and surrounding areas of land within the
claim area.
4.9.2 As is apparent from the summary of the evidence which I have given in
this chapter, the tracks of various tjukurrpa often intersect and coincide. There
are several shared sites and areas of land. Occurrences of this kind are common
in semi-arid country in Central Australia. Different groups with different
tjukurrpa will often share sites because spiritual focus often coincides with the
existence of the necessities of life, especially water. In the case of shared sites
and land, no single group seeks to assert its pre-eminence over another. On
occasions, there was evidence that senior people from each of the sharing groups
had authority to speak for shared sites. It is possible to say that the members of
each of the groups related to a shared site exercised primary spiritual
responsibility for that site, with no group attempting to exclude another sharing
group.
4.10 Rights to forage The members of each local descent group have rights to forage
over those portions of the land to which their affiliations extend, and possibly even
wider portions. Again, in semi-arid areas, it is common for rights to hunt under
traditional Aboriginal law to exist in respect of broader areas than those to which
spiritual affiliations extend. The need for survival presumably required that people be
entitled to hunt where food resources were to be found, especially if seasonal conditions
were such that they could not survive on their own country. The result is that the
categories of persons entitled to forage by Aboriginal law over a particular area of land
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will usually be broader than those who have particular entitlements to that area arising
from their identification with the relevant tjukurrpa for the sites within those areas.
There is, however, nothing to detract from the validity of the proposition that the
members of each of the local descent groups have the necessary rights to forage over the
portions of the land claimed identified with those groups. Between them, the groups
cover the entirety of the land claimed with such rights.
4.11 Traditional Aboriginal owners The following is a list of all those who,
according to the evidence, fall within the definition of “traditional Aboriginal owners”
of any part of the land claimed. The list is in alphabetical order. Where there is more
than one person with the same name, I have endeavoured to include a description
sufficient to identify each of the persons concerned.
Peggy Branson
Kunmanara Breaden
Beverley Carroll/Copp
Edith Carroll
Janet Carroll
Ingrid Carroll
Irene Carroll
Jacob Carroll
Martin Carroll
Bonita Clements
Jane Clements
Betty/Biddy Conway
Pamela Conway
Adeline Driffen Coulthard
Alisha Coulthard
Brian Coulthard
Carita Coulthard
Christopher Coulthard
Edrick Coulthard
Hayley Coulthard
Helen Coulthard
Janet Coulthard
Julie Coulthard
Kathy Coulthard
Kevin Coulthard
Lola Coulthard
Louise Coulthard
Ludwig Coulthard
Lynette Coulthard
Michael Coulthard
Neil Coulthard
Raymond Coulthard
Roderick Coulthard
Rodney Coulthard
Roseanne Coulthard
Rufus Coulthard
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Selma Coulthard
Stephen Coulthard (son of Syd Coulthard)
Stephen Coulthard (son of Syd Coulthard’s brother, Trevor Coulthard)
Steven Coulthard
Syd Coulthard
Trevor Coulthard (brother of Syd Coulthard)
Trevor Coulthard (son of Syd Coulthard)
Usan Coulthard
Wallace Coulthard
Alwyn Driffen
Ann-Maree Driffen
Christa Driffen
Doreen Driffen
Esma Driffen
Gladys Driffen
Ivan Driffen/Imitja
Ivan Driffen Junior
James Driffen
Jo-Ella Driffen
Jocelyn Driffen
Leslie Driffen
Marcus Driffen
Marissa Driffen
Phillip Driffen
Ron (Ronnie) Driffen
Rosie Driffen
Rupert Driffen
Shaun Driffen
Veronica Driffen
Elizabeth Imitja
John Imitja
Maria Imitja/Driffen
Virginia Imitja
Wendy Imitja
Renita Impu
Elizabeth Jacko
Sydie Jacko
Toby Jacob
Bessie Liddle
Edgar McCormack
Gloria McCormack
Jacinta McCormack
Jonathon McCormack
Xavier McCormack
Amy Moneymoon
Epana Namatjira
Kerry-Anne Namatjira
Rosalie Namatjira
Daniel Ngalaia
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Jessie Ngalaia
Lorraine Ngalaia
Lucy Ngalaia
Oliver Ngalaia
Virginia Ngalaia
Wilfred Ngalaia
Alice Ngalkin
Colin Ngalkin
Daphne Puntjina
Gillian Seven
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5 STRENGTH OF ATTACHMENT
5.1 Assessing strength of traditional attachment The Land Rights Act requires
that the Aboriginal Land Commissioner make an assessment of the strength of
traditional attachment of the people who claim to be traditional Aboriginal owners of
the land the subject of a claim. Such assessment, of a group as a whole, is difficult;
inevitably, the traditional attachment of some claimants will be stronger than that of
others. The Land Rights Act apparently requires that the assessment be made in a
vacuum. There is no requirement that the Commissioner attempt to compare the
strength of attachment of particular claimants with that of claimants in another land
claim or other land claims. The only measure to be applied appears to be whether there
is sufficient strength of traditional attachment to justify a recommendation that the land
the subject of the claim, or part or parts of it, be conveyed to a land trust or land trusts.
5.2 Abundance of evidence The present claim does not involve any consideration
of a narrow balance on the issue of strength of traditional attachment. To the contrary,
there is abundant evidence of a powerful and continuing traditional connection between
the claimants and the land claimed.
5.3 Claimants who were born on the claim area I have already referred to those
who are properly to be regarded as traditional Aboriginal owners as a result of the
activation by them of their borning rights and the acceptance of them as members of the
local descent groups. Other claimants, who belong to the local descent groups by
descent, were also born within the claim area. They include Syd Coulthard, who was
born at Urrampinyi (site 20); Betty Conway, who was also born at Urrampinyi (site 20);
Leslie Driffen, Ronnie Driffen and Kevin Coulthard, who were born at Alyumuru (not
shown on the site map), a waterhole on the claim area. Those claimants and others have
spent substantial parts of their lives on the claim area.
5.4 History of attempts to acquire the land claimed
5.4.1 In the early 1970s, when Aboriginal people had ceased to be employed in
large numbers in the pastoral industry and had been moved off stations,
significant numbers of people with traditional links to the claim area were living
at Areyonga, on Aranda country to the north of the claim area, and Jay Creek,
also on Aranda country to the west of Alice Springs. Even prior to the passage
of the Land Rights Act, attempts were made to gain control over all or part of the
claim area. In August 1973, Kunmanara Breaden asked representatives of the
then Department of Aboriginal Affairs to look into the possibility of purchasing
the Tempe Downs pastoral lease for the traditional owners of the land. In 1974,
the Luritja Land Association was formed, with objects including regaining
control of traditional lands for its members. Kunmanara Breaden and Syd
Coulthard were members of the committee of this association. It made several
attempts to acquire the pastoral leases of Tempe Downs and Middleton Ponds
stations.
5.4.2 In 1975, Kunmanara Breaden and his family squatted at Ukaka (site 44),
where there was a well. From time to time, they were joined by other claimants,
Page 36

including Syd Coulthard and his family. Their occupation of part of Middleton
Ponds Station was opposed by station management. An unreliable water supply,
coupled with the barring by management of access to other water sources, forced
the abandonment of the first attempt to resettle Ukaka (site 44). A further
attempt was made in l982 by Syd Coulthard and his family. At some time,
Leslie Driffen and his family also settled at Tent Hill, on the claim area. The
manager at the time was even more strenuously opposed to the idea of
Aboriginal resettlement on the land.
5.4.3 At some stage, Ronnie Driffen applied for an excision from the pastoral
lease for a living area on Tempe Downs Station. In 1988, Janet Carroll and her
sisters and their families moved from Areyonga to Manyari (site 3), but they
were driven off. In 1985, Northern Territory Portion 2424 was excised from that
land which had been surrendered from the pastoral lease of Tempe Downs
Station to become the Watarrka National Park, and the grant of a freehold
interest was made to the Wanmarra Aboriginal Corporation. This is the area
known as Wanmarra, or Bagot Springs, where Kunmanara Breaden and
members of his family now live. The small excision on which Kurrkuwalatja
(site 45) is situated, Northern Territory Portion 2440, was also excised from the
Tempe Downs pastoral lease. Syd Coulthard and members of his family
established an out-station on that land. It is known as Ukaka out-station. It has
a school, some houses, a public toilet and a clinic.
5.4.4 In 1993, Tempe Downs Aboriginal Corporation acquired all of the shares
in Tempe Downs Pty Ltd (see para. 2.5), thereby enabling the making of the
application in this land claim.
5.5 Where the claimants live Since 1993, Syd Coulthard and some members of his
family have lived at least part of the time at the Tempe Downs Station homestead at
Urrampinyi (site 20). They maintain the Ukaka out-station at Kurrkuwalatja (site 45).
Kunmanara Breaden and members of his family live at Wanmarra (Bagot Springs).
Other claimants live at Areyonga, Hermannsburg, Jay Creek and Alice Springs. The
substantial majority of the claimants live in the region of the land claimed.
5.6 Ceremonial activity I have already referred in chapter 4 to the fact that
ceremonial activity is common amongst the claimants. The continuing connection
between tjukurrpa and various sites is celebrated by songs, or songs and dances.
Ceremonies are conducted regularly and many of the claimants participate actively in
them. The initiation of young men is a continuing process. In para. 4.9.1, I have
referred to the excerpts of ceremonies which were performed during the hearing of the
claim and to the considerable amount of singing which took place among men in
vehicles while travelling from site to site. I also heard women singing during the
inquiry, quite apart from their performances which were part of the evidence.
5.7 Spiritual life There is no doubt that the tjukurrpa continue to be a reality for the
claimants. Syd Coulthard gave evidence that, when threatened by a station manager
with a firearm, he invited the manager to go ahead and kill him. Syd’s evidence was
that he was prepared to die because he was on his own country. During
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1994, after the claimants had acquired control of the claim area, Bessie Liddle and her
sisters wanted to use fire to “clean up” an area of land at Iltjitjari (site 41). After
discussion with Kunmanara Breaden and Syd Coulthard, the proposal was abandoned
because of the possibility of damage to some trees which are associated with a
tjukurrpa.
5.8 Site protection There is a strong desire to protect sites of significance from
damage. Ilararri (site 10) has been registered for some time as a sacred site, pursuant to
the Northern Territory Aboriginal Sacred Sites Act 1989 (NT). In para. 7.2.4, I refer to
a request to close the northern access road between the Tempe Downs Station
homestead and Areyonga, because of the proximity to that road of sites of significance.
Concern was expressed in evidence about the appearance of writing on a rock at one site
and the disappearance of a significant object from another. The details of the sites
concerned are secret to men.
5.9 Secret business There was a very strong emphasis on maintaining the secrecy
of considerable amounts of information concerning the tjukurrpa and their relationship
to sites on the land. Although I was permitted to hear some secret women’s business
(see para. 1.6), it was obvious in the sessions restricted to women that claimants were
reluctant to divulge details of the matters about which they were giving evidence. On a
number of occasions, male claimants took great care to ensure that secret information
would remain restricted and expressed concern about its becoming known to persons not
involved in the claim.
5.10 Passing on knowledge There is a determination to pass on spiritual knowledge
about the country to coming generations. A number of claimants referred to their
obligations to teach their children and grandchildren and other young members of the
relevant local descent groups.
5.11 Strength of attachment high As this summary of the evidence indicates, the
strength of traditional attachment of the claimants must be regarded as high. It is
manifested by a strong desire to secure the land claimed because of its traditional
significance to the claimants.
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6 MATTERS FOR COMMENT
6.1 Numbers advantaged The total number of persons whom I have found to fall
within the definition of “traditional Aboriginal owners” in the Land Rights Act is 95.
To the extent to which their spouses and children who do not fall within the definition
(particularly children of female members of the local descent groups) can be said to
have traditional attachments to the land claimed through their marital and parental ties,
there are approximately 140 more persons who would be advantaged if the claim were
acceded to in whole or in part. That number is made up of approximately 40 spouses of
traditional Aboriginal owners and approximately 100 children of female traditional
Aboriginal owners or of deceased females who would have been entitled to be counted
as traditional Aboriginal owners. To that number must be added the children,
grandchildren and great-grandchildren of Kunmanara Breaden, whom I have not
included as members of the Urrampinyi group. There are 21 of them who could be
said to have traditional attachments to the land claimed and who would be advantaged if
the claim were acceded to. I have found Colin Ngalkin, Kunmanara Breaden, Bessie
Liddle and Daphne Puntjina to be traditional Aboriginal owners as a result of the
activation of their borning rights and their acceptance as members of relevant local
descent groups. There are some 19 other persons who were advanced as claimants on
the basis of their borning rights but whom I have not included. Among them are
Kunmanara Breaden’s sisters, Ethel Maloney and Zona Croker. All who have borning
rights fall into the category of those with traditional attachments who would be
advantaged by the success of the claim. Two persons, Charlie Walkabout and Joyleen
Abbott, were advanced as claimants on the basis that they had acquired rights by
extended residence in the claim area. Joyleen Abbott is also a half-sister of Kunmanara
Breaden. The evidence did not bear out the entitlement of these persons to be regarded
as traditional Aboriginal owners for the purposes of the Land Rights Act, but they are
persons with traditional attachments to the land claimed who would be advantaged if the
claim were successful. The children of persons with borning rights and extended
residence rights would also be advantaged. Ethel Maloney, who has borning rights, has
seven children. Joyleen Abbott has 13, including one adopted. In addition, there are
persons who have rights to parts of the tracks of travelling tjukurrpa off the claim area
and persons with ceremonial obligations and attachments who would fall into the
category of those with traditional attachments who would be advantaged. The total
number of Aboriginal people with traditional attachments to the land claimed who
would be advantaged if the claim were acceded to in whole or in part could be as high as
400.
6.2 Nature and extent of the advantage
6.2.1 The most obvious advantage to those with traditional attachments to the
land claimed would be the benefit of the land being held under inalienable
freehold title. Once the land is conveyed to a land trust, in accordance with ss.
11 and 12 of the Land Rights Act, s. 19 operates to prevent the land trust from
dealing with or disposing of the land. Section 67 prevents the resumption,
compulsory acquisition or forfeiture of the land under any law of the Northern
Territory. Such a title is more secure than that which is presently available in
respect of the land claimed under the laws of the Northern Territory. It is more
secure even than if the land were the subject of a perpetual pastoral lease. Thus,
Page 39

a grant of the land claimed to a land trust would have the effect of preserving the
land for those with traditional attachments to it and their descendants. The
conduct of a pastoral enterprise on the land could not lead to a loss of title, even
if it were unsuccessful as a result of bad seasons, loss of markets or even
inadequate management.
6.2.2 Those with traditional attachments to the land claimed would also be
advantaged by having greater control of its management if it became Aboriginal
land under the Land Rights Act. The protection of sites and areas of spiritual
and cultural significance would be easier because of the ability of the Central
Land Council, in consultation with those with traditional attachments, to control
access to the land under the Aboriginal Land Act (NT). Part IV of the Land
Rights Act would give to the traditional Aboriginal owners, and others with
traditional attachments to the land, control of the activities of any persons who
might seek to acquire mining interests in the land.
6.2.3 There will also be considerable intangible advantage if the land becomes
Aboriginal land under the Land Rights Act. A grant of land to a land trust is
recognition of the traditional rights of people whose forebears were
dispossessed. It is a recognition at the highest level of Australian society. Such
a grant carries with it an affirmation of the value of traditional rights and of
places of cultural significance. It enables the traditional Aboriginal owners of
the land and others with traditional attachments to it to use the land as a focus
for the further development of their community spirit and the maintenance and
increase of their self-esteem. The importance of such an acknowledgment and
such a focus for modern Aboriginal communities should not be underestimated.
6.2.4 It was submitted on behalf of the Attorney-General for the Northern
Territory that Kunmanara Breaden and his children, grandchildren and greatgrandchildren
were already the beneficiaries of a settlement of the Lake
Amadeus Land Claim No. 44 and that Joyleen Abbott and two members of the
Breaden family were claimants in the Palm Valley Land Claim No. 48. The
submission seemed to involve the proposition that, because these persons have
benefited or might benefit from other land claims, they would not be advantaged
by the success of this land claim. If that were the proposition, it must be
rejected. The Land Rights Act does not exclude from the category of persons
advantaged those who might have been advantaged in another land claim. As a
matter of logic, it must be possible for a person to be advantaged as a result of
two or more land claims.
6.3 Detriment: land not available as security for loans The traditional Aboriginal
owners of the land claimed and others with traditional attachments to it would suffer
detriment in one respect if the claim were to be acceded to. If there is to be a pastoral
enterprise on the land, it will no doubt require working capital. Such capital could not
be raised by borrowing on the security of the land itself, because of the inalienability of
the title resulting from s. 19 of the Land Rights Act. This detriment may be offset by
the availability of working capital from other sources,
Page 40

particularly the Aboriginals Benefit Trust Account, established pursuant to Part VI of
the Land Rights Act. There is a considerable cooperative effort between agencies of the
Commonwealth of Australia, agencies of the Northern Territory, the Northern Land
Council and the Central Land Council to ensure that Aboriginal pastoral enterprises in
the Northern Territory operate successfully. It is unlikely that any pastoral enterprise on
the land claimed would fail for want of working capital. In any event, I regard this
detriment as being outweighed by the advantages to which I have referred in para. 6.2.
6.4 Detriment: mining
6.4.1 The claim area is situated in the central part of an area known as the
Amadeus Basin, which includes the productive Mereenie and Palm Valley oil
and gas fields. The latter is located about twenty kilometres north-east of the
claim area. Some unsuccessful exploration for hydrocarbon accumulations has
taken place within the claim area, which is considered to have potential for
future discoveries at a deeper level. The area is also considered to have
significant potential for base metal deposits. Some low-grade lignite occurs in
the claim area. There are extensive deposits of stone known as Hermannsburg
sandstone, which has been used as a building stone and in stone craft. The claim
area also has good potential for tapping underground water supplies.
6.4.2 At the time of the hearing, there were no mining titles or tenements within
the claim area. There was a current application for an exploration permit,
designated EP(A)35, by Empire Oil Company Ltd. The area covered by that
application extended into the west of the claim area. Section 67A of the Land
Rights Act does not prevent the granting of a mining exploration licence pending
the determination of a claim (see Attorney-General for the Northern Territory v.
Kearney (1990) 25 FCR 408, at pp. 412–13). The maker of an exploration
licence application would suffer detriment if the application had not been dealt
with before the land concerned became Aboriginal land. Section 40 of the Land
Rights Act would prevent the granting of an exploration licence unless the land
council and the applicant had entered into an agreement of the kind
contemplated by Part IV of the Land Rights Act. The holder of an exploration
licence granted before the land became Aboriginal land might also suffer
detriment in that the renewal of the licence, which would otherwise be possible
under s. 29A of the Mining Act (NT), would not be available without an
agreement under Part IV of the Land Rights Act. In addition, the holder of an
existing exploration licence might suffer detriment in that, by virtue of s. 45 of
the Land Rights Act, a mining interest cannot be granted in respect of Aboriginal
land without an agreement with the relevant land council. All of these possible
instances of detriment are theoretical; Empire Oil Company Ltd did not provide
any evidence of actual detriment that might result if the claim were acceded to in
whole or in part.
6.5 Detriment: conservation The Conservation Commission of the Northern
Territory has a longstanding interest in management of the conservation, recreation,
cultural and scientific values of the claim area. The first proposal to acquire the Tempe
Downs pastoral lease for national park purposes was made in 1965. In
Page 41

September 1983, the then lessee voluntarily surrendered the area most of which is now
Watarrka National Park. There are areas within the claim area known to have
exceptional biological significance. For instance, within the claim area is one of very
few areas in Central Australia showing no visible signs of having been burnt for several
hundred years. There are rare and uncommon plant species. Illara Waterhole is one of
two large riverine spring-fed permanent water bodies in Central Australia and is of
considerable importance to wildlife, especially fish and waterbirds. There are many
areas which would be attractive to tourists. There has been a proposal to establish an
expanded national park, linking the Finke Gorge National Park and the Watarrka
National Park, which lie to the east and immediately to the west of the claim area
respectively. The Conservation Commission identifies fire and feral animals,
particularly horses, as the major environmental threats. It would like to have recognised
its interest in the negotiation of a management agreement under the Territory Parks and
Wildlife Conservation Act (NT). Such an agreement could provide for the management
of significant biological, historical, cultural and recreational values. It could make
provision for the establishment of a management committee with a majority
membership of Aboriginal traditional custodians. There could be a plan of management
prepared in consultation with and approved by traditional custodians. This sort of
regime has been used successfully in other areas, particularly several national parks on
Aboriginal land within the Northern Territory. In the absence of concrete proposals for
the compulsory acquisition of any of the land claimed, it is not possible for me to find
that the Conservation Commission of the Northern Territory would suffer any detriment
by virtue of that land becoming Aboriginal land under the Land Rights Act. To the
extent to which the proposals of the Conservation Commission depend upon the
commission gaining the confidence of those who control the destiny of the land, the
tenure according to which the land is held is irrelevant.
6.6 Detriment: historic buildings Near Manyari (site 3) is a group of historic
homestead buildings and other associated structures, declared to be a heritage place
under the Heritage Conservation Act (NT) in 1993. The Conservation Commission
named it Bowson’s Hut, but the claimants in evidence described it as McNamara’s Hut.
Funds were spent on stabilisation of the buildings in 1989 and on fencing the site to
exclude stock in 1990. It is being managed to arrest further decay. Fire and termite
activity are the greatest threats. If the land claimed were to become Aboriginal land
under the Land Rights Act, access to the heritage place would be restricted to those who
could obtain permits under the Aboriginal Land Act (NT). Section 6 of the Aboriginal
Land Act (NT) would enable the relevant Northern Territory minister to grant permits to
enable access for the continuance of preservation and maintenance works. Public
enjoyment of the heritage area would be restricted by the need to obtain permits under
the Aboriginal Land Act (NT).
6.7 Detriment: Telstra Corporation Ltd
6.7.1 In para. 2.11, I have discussed the questions whether Northern Territory
Portion 3586 is excluded from the claim area and whether Telstra Corporation
Ltd has an estate or interest in it. As I have said, located within Northern
Territory Portion 3586 are a steel mast approximately forty metres high erected
on a concrete block, a solar panel array, and a concrete slab on which is erected
an equipment cabinet, housing batteries and radio equipment. The whole
Page 42

structure constitutes a digital radio concentrator, which provides automatic
telephone services to the surrounding area and is part of the national
telecommunications network. Telstra Corporation Ltd would suffer detriment if
deprived of control of this facility. Public detriment would result if the facility
could not be used as part of the telecommunications network. In para. 8.1, I
exclude Northern Territory Portion 3586 from my recommendation that there be
a grant of the subject land to a land trust, if it is part of the land claimed.
6.7.2 There is no access easement to Northern Territory Portion 3586 and no
access track has been constructed. Access is currently gained pursuant to a deed
of licence under the common seal of Tempe Downs Pty Ltd dated 20 April 1988
(see para. 2.11.3). This licence gives Telstra Corporation Ltd and its agents,
servants, workmen and contractors, a free and unrestricted right of way and
access at all times over Northern Territory Portion 689 to Northern Territory
Portion 3586 for the purposes of providing and maintaining telecommunications
equipment. The licence recites that it is understood that a defined access is not
practical due to variations in topographical and climatic conditions prevailing
from time to time over the terrain and commits Telstra Corporation Ltd to
endeavour at all times to use the shortest practical route available and to
minimise disturbance to the operations of Tempe Downs Pty Ltd thereon. The
entitlement of Telstra Corporation Ltd to continued access to Northern Territory
Portion 3586 will be guaranteed by s. 70(4) of the Land Rights Act, if the land
claimed becomes Aboriginal land. Telstra Corporation Ltd will therefore suffer
no detriment, except so far as it may be necessary to agree upon a defined access
route or to have such a route determined by arbitration if agreement is not
reached.
6.8 Detriment: bores and gravel pits used for road maintenance There are four
bores and five gravel pits within the claim area which are used by the Department of
Transport and Works of the Northern Territory for the purpose of road upgrading and
maintenance. The use of those gravel pits and bores would be preserved by s. 14 of the
Land Rights Act in the event that the land claimed was transferred to a land trust.
Because the gravel from the gravel pits and the water from the bores is used on the
Ernest Giles Road and the Luritja Road, s. 15 of the Land Rights Act would oblige the
Crown in right of the Northern Territory to pay to the Central Land Council for that use
amounts in the nature of rent, fixed by the Minister for Aboriginal and Torres Strait
Islander Affairs, having regard to the economic value of the land. Section 15 would
apply because it could not be said that the use of the gravel pits and bores concerned is
for a community purpose, as defined by s. 3(1) of the Land Rights Act, namely a
purpose that is calculated to benefit primarily the members of a particular community or
group. In Attorney-General for the Northern Territory v. Hand (1991) 172 CLR 185,
the High Court of Australia held that this definition was not capable of referring to
persons engaged in the cattle industry generally. Since the Ernest Giles Road and the
Luritja Road are roads over which the public has a right of way (see para. 7.2) and are
used by tourists visiting Watarrka National Park, the maintenance of those roads is
unlikely to amount to a purpose calculated to benefit primarily the members of a
particular community or group. The Crown in right of the Northern Territory will
Page 43

suffer detriment to the extent of the rent fixed for the use of the five gravel pits and the
four bores. The location of each of the gravel pits and bores is shown on the map in
appendix 6.
6.9 Effect on existing or proposed patterns of land use
6.9.1 The land claimed has a considerable history of use for pastoral purposes.
Tempe Downs Station and Middleton Ponds Station were cattle stations for
many years. When the Tempe Downs Aboriginal Corporation purchased the
shares in Tempe Downs Pty Ltd, as a means of acquiring both pastoral leases, it
did so on the basis that the land claimed was bare of stock. Pastures were
degraded and much of the infrastructure of the cattle stations was in a poor state.
At the time of the hearing, there was a small herd of 700-800 head of cattle
grazing on the land claimed. It seems clear that the claimants desire to use the
land claimed, or parts of it, for pastoral purposes. A management agreement was
entered into on 9 February 1994, for a period of three years, between the Central
Land Council, Tempe Downs Pty Ltd and the Tempe Downs Aboriginal
Corporation. Among senior claimants there is a difference of view as to the
extent to which pastoral operations should be conducted. Kunmanara Breaden
favours the conduct of a substantial pastoral enterprise, whereas Syd Coulthard
appears to take the view that a much smaller operation is appropriate. As I have
said in para. 6.3, there is a substantial program conducted jointly by the
Commonwealth, the Northern Territory, the Northern Land Council and the
Central Land Council to ensure proper management and, if possible, the
financial success of Aboriginal cattle stations in the Northern Territory. The
claimants will benefit from this plan. The Central Land Council has
considerable technical and managerial expertise at its disposal, which it makes
available to Aboriginal cattle stations in its area. It is therefore quite likely that
the land claimed will be used for a pastoral enterprise in the future. What is not
possible for me to predict is the size of the enterprise. The future of pastoral
operations on the land claimed will probably not be affected by the nature of the
title under which the land is held.
6.9.2 The use of land in the region of the land claimed for the purposes of
tourism cannot be ignored. In particular, the adjacent Watarrka National Park is
a popular tourist destination, having within its boundaries the feature known as
Kings Canyon and other attractive features. There are other popular tourist
destinations which might be visited in conjunction with Watarrka National Park,
notably Palm Valley to the north-east and Uluru to the south-west. The land
claimed contains features which would be attractive to tourists. It is not possible
for me to say whether the claimants will be prepared to permit tourism on the
land claimed, or desirous of conducting any tourist enterprise on the land
claimed. Again, their decision to allow or refuse access to tourists is unlikely to
be affected by the nature of the title to the land.
6.9.3 It therefore does not appear that acceding to the claim either in whole or in
part would have any significant effect on the existing or proposed patterns of
land usage in the region.
Page 44

6.10 No cost of acquiring interests In para. 2.7.6, I have expressed my view that the
claim relates to alienated Crown land in which Tempe Downs Pty Ltd has an estate or
interests, being Pastoral Lease No. 629 and Pastoral Lease No. 703. The company holds
those estates or interests for the purpose of ensuring that the land claimed is converted
into Aboriginal land under the Land Rights Act. There will therefore be no cost of
acquiring the interests of any persons in the land claimed.
Page 45

7 OTHER MATTERS
7.1 Acquisition of secure occupancy There are among the claimants people who
are not living at a place on the traditional country of the tribe or linguistic group to
which they belong but desire to live at such a place. In para. 5.4.3, I have referred to the
attempt made by Janet Carroll and her family to live at Manyari (site 3). The members
of that family live at Areyonga, which is within Aranda country. I have also referred to
the attempts by Leslie and Ronnie Driffen to live on the land claimed. They presently
reside at Alice Springs and Jay Creek respectively. I am therefore obliged by s. 50(4)(b)
of the Land Rights Act to have regard to the principle that those persons ought, where
practicable, to be able to acquire secure occupancy of a place on the traditional country
of the tribe or linguistic group to which they belong. Ownership of the pastoral leases
covering the claim area by the Tempe Downs Aboriginal Corporation provides these
persons with a better chance of gaining entitlement to live on the land than would be the
case if the pastoral lease were not Aboriginal-controlled, but vesting of the land in a
land trust would provide greater security of occupancy.
7.2 Roads over which the public has a right of way
7.2.1 Within the claim area are the following roads over which the public has a
right of way:
(a)
(b)
(c)
(d)
(e)
the Ernest Giles Road, which enters the claim area from the east, crosses
Middleton Ponds Station in a generally westerly direction and then veers
south-west across the southern boundary of the Tempe Downs Station to
its junction with the Luritja Road;
the Luritja Road, which runs generally north-west from its junction
with the Ernest Giles Road to the western boundary of the claim area and
on to the Watarrka National Park;
the eastern Tempe Downs access road, which enters the claim area from
the east and runs generally north-west, passing through the corner of
Henbury Station, to the Tempe Downs Station homestead;
the western Tempe Downs access road, which runs from the Ernest Giles
Road in a generally northerly direction to the Tempe Downs Station
homestead and is entirely within the claim area;
the northern access road, which runs from the Tempe Downs Station
homestead in a north-westerly and northerly direction to Areyonga.
At the time of the hearing, the portion of the Luritja Road described in (b) was
called the Ernest Giles Road. Its name was changed to the Luritja Road. The
approval of the change by the relevant minister, pursuant to s. 11 of the Place
Names Act (NT) was published in the Northern Territory Government Gazette
No. G44 on 1 November 1995.
Page 46

7.2.2 Each of these roads is shown on the map in appendix 6. The first three are
maintained by the Department of Transport and Works. The western Tempe
Downs access road was formerly maintained as part of the route to what is now
Watarrka National Park, which was by way of Tempe Downs Station homestead.
The construction of the Ernest Giles Road rendered continued maintenance of
the western Tempe Downs access road unnecessary and it was discontinued.
The northern access road was bulldozed in the early 1970s as part of a mineral
and geological survey but has never been constructed or maintained. It is
extremely rough, particularly in one steep, rocky section, and its use requires the
negotiation of difficult, sandy creek crossings.
7.2.3 The portions of the Ernest Giles Road, the Luritja Road and the eastern
Tempe Downs access road which fall within the claim area must be excluded
from any grant of land to a land trust, in accordance with s. 12(3) of the Land
Rights Act. In each case, a road reserve of 100 metres (50 metres on each side
of the current centre line of the road) is appropriate.
7.2.4 Since the hearing of the claim, steps have been taken to close the western
Tempe Downs access road and the northern access road. As a result of
negotiations between the claimants and the Northern Territory Government, the
government is prepared to close the western Tempe Downs access road as
surplus to requirements, as well as the northern access road because of cultural
sensitivity relating to the proximity of sites of significance to the road. In
accordance with s. 18 of the Control of Roads Act (NT), a notice of proposal to
close those roads was published in the Northern Territory Government Gazette
No. G46 on 15 November 1995. Within the time allowed for objections, an
objection to the proposed road closure was received from Areyonga Community
Incorporated. At the time of closure of submissions in the land claim hearing,
the issue of the closure of the roads had not been resolved. If those two roads
have been closed, there is no barrier to the inclusion of the land on which they
are situated in a grant of the land claimed to a land trust. If they remain roads
over which the public has a right of way, s. 12(3) of the Land Rights Act will
operate to require their exclusion from any grant of the land claimed to a land
trust. In that event, I should not regard it as appropriate to create a road reserve
of any more than minimal width for either of them.
7.3 Single land trust
7.3.1 I have considered whether the existence of four local descent groups, the
members of which constitute the traditional Aboriginal owners of parts of the
land claimed, would necessitate the establishment of more than one land trust for
that land. I have also considered whether, even if more than one land trust were
unnecessary, it would nevertheless be desirable. The Urrampinyi group’s
country covers most of the claim area. The Wirra group is a relatively
numerous group for this claim. Its members have affiliations to a small number
of sites in the claim area. The Manyari group is not numerically strong. As I
have said in para. 4.6, its members have affiliations to some sites which are
shared with the Urrampinyi group. The small Wilpiya group shares one site
Page 47

with the Urrampinyi group. When asked who should speak for various places,
there was a tendency to name senior members of other groups, along with senior
members of the group concerned. There is every reason to suppose that the
interests of each group will be catered for adequately if there is a single land
trust.
7.3.2 The only real division amongst the claimants appears to be in relation to
the extent to which the land claimed should be used for pastoral purposes (see
para. 6.9.1). The protagonists in this dispute are Syd Coulthard and Kunmanara
Breaden, both members of the Urrampinyi group. On the first day of the
hearing, Syd Coulthard gave evidence which tended to suggest that he was
prepared to cede control of part of the claim area to Kunmanara Breaden. It is
likely that this evidence reflected the existence of the dispute over the size of the
proposed pastoral enterprise. I do not consider that it provides any adequate
basis for the establishment of a separate land trust for any part of the claim area.
7.3.3 For these reasons, I am of the view that the establishment of a single land
trust is the most desirable course.
Page 48

8 RECOMMENDATION
8.1 Recommendation Consequent upon the findings set out in this report, and
having regard to the other matters to which I have referred, I recommend that the whole
of the land falling within the boundaries of Northern Territory Portion 689 and Northern
Territory Portion 854, including that part of the Hugh River Stock Route and all rivers
and creeks within those boundaries, but excluding Northern Territory Portion 3586 and
such of the roads referred to in para. 7.2 as are or continue to be roads over which the
public has a right of way, be granted to a single land trust for the benefit of Aboriginal
people entitled by Aboriginal tradition to the use or occupation of that land, whether or
not the traditional entitlement is qualified as to place, time, circumstance, purpose or
permission.
Page 49

APPENDIX 1
LIST OF SITES AT OR NEAR WHICH EVIDENCE WAS TAKEN
(in order of sites visited)
Ukaka (44)
Iltjitjari (41)
Pulankupinitjungkunta (not shown on site map)
Pulalpatarrka (23)
Wanmarra (Bagot Springs)
Kulantju [A](25)
Kulantju [C](27)
Kaltjiti (28)
Ngangkarli (29)
Ngarkinti (30)
Antai (31)
Unturu (17)
Ngarnka (18)
Ilararri (10)
Kulpimara (38)
Minpurru (4)
Wirra [B] (7)
Wirra [A] (6)
Manyari (3)
Unpalarra (9)
Urrampinyi (20)
Ituntu (33)
Kurrkuwalatja (45)
Page 50

APPENDIX 2
LIST OF APPEARANCES
Counsel for the claimants:
Solicitor for the claimants:
Ross Howie
Julia Munster for restricted women’s sessions on
9, 10 and 11 November 1994
James Nugent, Legal Officer, Central Land
Council
Counsel for the Attorney-
General for the
Northern Territory:
Solicitor for the Attorney-
General for the
Northern Territory:
Vance Hughston
Judy Bonner for restricted women’s sessions on
9, 10 and 11 November 1994
Paul Walsh of the Solicitor for the Northern
Territory
Counsel assisting the
Aboriginal Land
Commissioner:
Tony Neal
Solicitors for Telstra
Corporation Ltd:
Paul Minogue of the Australian Government
Solicitor
CONSULTANT ANTHROPOLOGIST TO THE
ABORIGINAL LAND COMMISSIONER
Dr Deborah Bird Rose
Page 51

APPENDIX 3
LIST OF WITNESSES
(in the order in which they first gave evidence)
Syd Coulthard
Bessie Liddle
Joyleen Abbott
Kunmanara Breaden
Toby Jacob
Oliver Ngalaia
Carita Coulthard
Betty Conway
Ethel Maloney
Pastor Peter Bulla
Daphne Puntjina
Alice Ngalkin
Janet Carroll
Leslie Driffen
Ronnie Driffen
Epana Namatjira
Janet Coulthard
Amy Moneymoon
Rosie Driffen
Gloria McCormack
Alwyn Driffen
Irene Carroll
Pamela Conway
Raymond Coulthard
Lynette Coulthard
Kathy Coulthard
Dr Lee Sackett
Julia-Jane Munster
Page 52

APPENDIX 4
LIST OF EXHIBITS
Note: Exhibits marked “R” are subject to restrictions on access and use, by direction of
the Aboriginal Land Commissioner.
Exhibits CLC1–CLC13 were tendered by counsel for the claimants.
Exhibits NT1–NT7 were tendered by counsel for the Attorney-General for the Northern
Territory.
Exhibit ALC1 was tendered by counsel assisting the commissioner.
Exhibit no.
CLC1
CLC2
CLC3
Description of exhibit
Submission on title and attached documents
Anthropologist’s report by Dr Lee Sackett
Claimant profiles
CLC4 R Genealogies of claimant groups, including the additional
Urrampinynya and Breaden group genealogy
CLC5 R Site register
CLC6 R Site map
CLC7 R Extracts from the transcript of evidence of female witnesses
given in restricted sessions on 9, 10 and 11 November 1994
CLC8
Curriculum vitae of Dr Lee Sackett
CLC9 Document entitled “Position of the Breaden Family”, dated 8
March 1995
CLC10 R Report on public aspects of evidence given by claimants during
women-only sessions on 9, 10 and 11 November 1994
CLC11
Paper entitled “Aboriginal Pastoral Properties in the Northern
Territory”, dated May 1994
CLC12 Statement of Anatoly Sawenko, dated March 1995
CLC13
Paper entitled “The Luritja Land Association: A brief history of
attempts to gain land in the Tempe Downs–Middleton Ponds–
Page 53

Lake Amadeus region”, by Annette Hamilton, dated December
1983
NT1
NT2
Documents relating to the excision of the Wanmarra area
Letter dated 27 June 1994 from the Department of Mines and
Energy to the Department of Lands, Housing and Local
Government, with attached map and technical report
NT3 Statement of Andrew Bridges, dated 10 March 1995
NT4
NT5
NT6
NT7
ALC1
Statement of Robert Harry Pemble, dated 17 March 1995, and
attachments
Document entitled “Proofing Session with Toby Jacob,
Little Sisters, Alice Springs. 8th, 9th & 10th October 1985”
Letter from the Solicitor for the Northern Territory to the
Central Land Council, dated 10 March 1995, and reply dated 18
March 1995
Quotation from Fred Myers on p. 100 of the Bagshaw report
Statement of evidence and submissions on behalf of Telstra
Corporation Ltd
Page 54

55
APPENDIX 5
STATEMENT OF FINDINGS, EVIDENCE
AND REASONS PURSUANT TO
SECTION 13 OF THE ADMINISTRATIVE
DECISIONS (JUDICIAL REVIEW) ACT 1977

56
OFFICE OF THE ABORIGINAL LAND COMMISSIONER
7th 7:.oor. National Mutual Centre. 9 - 11 Cavenagh Street. Darwin
N.T.
Telephone: (089) 811 799.:P.0. Box 2289
Facsimile: (089)815465 DARWIN. N.T. 0801
ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976
TEMPE DOWNS AND MIDDLETON PONDS / LURITJA
LAND CLAIM No. 147
STATEMENT OF FINDINGS, EVIDENCE AND REASONS
PURSUANT TO SECTION 13 OF THE ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977
I, Peter Ross Awdry Gray, the Aboriginal Land Commissioner under the Aboriginal Land
Rights (Northern Territory) Act 1976 ("the Land Rights Act"), am empowered:
(a) by section 51 of the Land Rights Act to do all things necessary or
convenient to be done for or in connection with the performance of my
functions;
(b) by subsection-54AA(1) of the Land Rights Act to give directions
prohibiting or limiting the publication of, or access to, information given to me
under the Land Rights Act; and
(c) by subsection 54AA(2) of the Land Rights Act, where information
is to be publicly given to me under the Land Rights Act, to give directions
requiring that persons specified in the direction, or persons included in a class
of persons specified in the direction, are not to be in the vicinity of the place
where the information is to be given.
On 15th December 1994, 1 received, by facsimile, a letter from
Ms. Raelene Webb, Crown Counsel, Department of Law, Northern
Territory of Australia, which I am prepared to treat as a
request pursuant to section 13 of the Administrative Decisions
(Judicial Review) Act 1977 for me to furnish a statement in
writing setting out the findings on material questions of
fact, referring to the evidence or other material on which
those findings were based and giving reasons for certain

57
2
decisions. That letter identified the relevant decisions in the following terms:
"On 9, 10 and 11 November 1994 during the hearing by you of the Tempe Downs and Middleton
Ponds / Luritja Land Claim No. 147 under the provisions of the Aboriginal Land Rights (Northern
Territory) Act 1976 (ALRA), you made a decision or decisions that certain information to be given
to you by female witnesses in the Land Claim be prohibited or limited in terms of S54AA of the
ALRA (see Transcript of 9 November 1994 at 210.40 - 211; Transcript - in - Confidence of 10
November 1994 at 30; Transcript of 11November 1994 at 274.5....)."
An examination of the passages of the transcript referred to in that letter indicates that I made the following
decisions:
1. On 9th November 1994, a decision to hear evidence
from female claimants, about a place to be visited
and ritual associated with that place, in a session
in which, save for myself, no men would be present.
2. On 9th November 1994,a decision to reserve the
question whether any direction should be made that
the transcript of the proposed session on that day
be made available to anyone other than women or
myself.
3. On 10th December 1994, a decision to direct that the
whole of the evidence to be taken in a session that
afternoon and the transcript of it not be divulged
to anyone other than for the purposes of the land
claim and in any event not be divulged to anyone
other than adult females.
4. On 10th December 1994, a decision to reserve the
question whether to make some exemption from the
broad direction referred to in decision 3 with
respect to transcript.
5. On 11th November 1994, a decision to direct that the
evidence about to be given and the transcript of it
not be divulged to anyone other than for the
purposes of the land claim and in any event not be
divulged to anyone other than adult females.
As a result of further correspondence between myself and Ms. Webb (a letter from me to Ms. Webb dated
21st December 1994 and a facsimile from Ms. Webb to me dated 30th December 1994), 1 understand that it
is contended that the Crown in right of the Northern Territory is a person aggrieved by each of the
decisions. I have no wish to take issue with this contention, although, having regard to the role which the
Attorney-General for the Northern Territory adopted in relation to the land claim, I should not necessarily
make a finding of fact to that effect.

58
3
I make the following statement setting out my findings on
material questions of fact, to evidence or other
material on which those findings were based and giving reasons
for the decisions.
FINDINGS OF MATERIAL FACT AND EVIDENCE
1. I am the Aboriginal Land Commissioner, appointed pursuant
to the Land Rights Act. I was appointed initially for a
three year term on 22nd October 1991 and reappointed for
a three year term on 25th October 1994. I hold on file
letters from the Minister for Aboriginal and Torres
Strait Islander Affairs, dated 29th October 1991 and 2nd
November 1994 respectively, notifying me of these
appointments, together with copies of the minutes of the
Executive Council dated 22nd October 1991 and 25th
October 1994 respectively, reporting the appointments.
2. On 9th December 1993, an application was made to me by
the Central Land Council on behalf of a group of
Aboriginal people claiming to have a traditional land
claim to an area of land described therein. The land
claim has been designated as the Tempe Downs and
Middleton Ponds / Luritja Land Claim No. 147. The
description in the application of the land claimed refers
to the whole of the land comprised in two pastoral
leases, roads within the boundaries of those pastoral
leases and a river and a stock route, so far as they fall
within the boundaries of one of those pastoral leases,
which land is claimed to be alienated Crown land in which
all estates and interests not held by the Crown are held
on behalf of Aboriginal people. The original application
is kept in the Office of the Aboriginal Land Commissioner
at 7th Floor, 9 Cavenagh Street, Darwin.
3. The hearing of the land claim was fixed to commence on
7th November 1994. The date was notified to the Central
Land Council and the Solicitor for the Northern Territory
by letters from my executive officer dated 16th May 1994.
I hold file copies of those letters.
4. The Solicitor for the Northern Territory was notified
prior to 7th November 1994 that the claimants desired me
to hear evidence that would be restricted to women, i.e.
that would not be open to and could not be heard by men.
By facsimile transmission dated 1st November 1994, the
Central 1and Council communicated to the Office of the
Aboriginal Land Commissioner its proposed site visit
program for the hearing of the land claim. The proposed
program designated the evidence at a number of sites as
"Men Only" and the evidence at a site designated as
Minpurru (4), which it was proposed would be reached by
helicopter and at which evidence was proposed to be given
on 10th November, as "Women Only". In relation to that
site, the following notation appeared:

59
4
"The party for the second site shall be women
only, (ALC) expected and made up of six claimants,
female staff anthropologist, the Aboriginal Land
Commissioner, anthropologist assisting (doubling as
sound recorder) and female anthropologist for the
Northern Territory."
In relation to a site designated as Iltjitjari (41) (Old
Middleton Ponds Homestead), at which evidence was
proposed to be taken on 7th November, the notation "Some
evidence may be restricted to Women Only" appeared. In
relation to a site designated as Manyari (3), the
notation "Some Women's Only evidence will be taken at this
site appeared. By facsimile transmission from the
Solicitor for the Northern Territory to my executive
officer, dated 2nd November 1994, the Solicitor for the
Northern Territory indicated that it had received a copy
of "the site visit programme provided by the CLC". The
notification that evidence restricted to women was
proposed was in purported compliance with paragraph 10(g)
of the Practice Directions which I had issued on 23rd
June 1994, and which were to operate on and from 1st July
1994.That paragraph required that, no later than eight
weeks prior to the date fixed for the commencement of an
inquiry, the claimants must lodge in the office of the
Aboriginal Land Commissioner and serve on the Solicitor
for the Northern Territory a statement as to whether it
was intended to rely on any evidence on which a
restriction would be sought to the effect that the
evidence not be communicated other than to persons of one
sex and, if so, which sex. The claimants had failed to
comply with this practice direction by the time
specified
5. At the opening of the hearing, Mr. Vance Hughston of counsel announced his appearance for the
Attorney-General for the Northern Territory and stated that he was instructed by Mr. Paul Walsh and
Ms. Judy Bonner. The announcements of appearances are recorded at page 2 of the transcript of the
hearing.
6. The Attorney-General for the Northern Territory did not
appear for the purpose of opposing the making of a
recommendation pursuant to subparagraph 50(1)(a)(ii) of
the Land Rights Act for the granting of the land the subject of the land claim in accordance with
sections 11 and 12 of the Land Rights Act. At page 2 of the transcript of the hearing, Mr. Hughston is
recorded as having said, "If I could say at the outset that our instructions at that this land (sic) are to
assist your Honour as far as we can in helping your Honour to determine who are the traditional
owners of the land under claim." In the course of the hearing of the Elsey Land Claim No. 132, on 1st
October 1993, Mr. Hughston, then appearing for the Attorney-General for the Northern Territory,
made the following statement to me:

60
5
"It has been the case since the inception of the Act
that the Territory government has been involved in
every land claim. Certainly when the land claimed
has been unalienated Crown land their interest is
obvious; it is land which is held by the Crown in
the right of the Territory for the benefit of all
Territorians, and the role which the government
takes in testing those claims hopefully adds to the
public confidence in the administration of the Act.
There has in recent years been a proliferation of
claims relating to pastoral leases and the
government has come to the view that pastoral leases
should perhaps be viewed in a somewhat different
light to unalienated Crown land, because in the
situation of a pastoral lease the Aboriginal people
own the lease, and certainly under the new Pastoral
Lands Act have rights which are very close to
ownership in any event. In those circumstances the
Territory does not see itself as having the same
role as it may have in relation to unalienated Crown
land. There is no objection in principle to
pastoral leases, the coming (said. becoming)
Aboriginal land, subject to them remaining as
operating cattle stations and subject to the usual
types of land usage problems which arise from time
to time in these claims, such as public roads and
conservation aspects and the like."
The statement appears at p. 253 of the transcript of the Elsey Land Claim No. 132. Further, in a letter
to me dated 3rd February 1994, the Solicitor-General for the Northern Territory took objection to a
statement of mine in a written ruling and reasons given in relation to the Kanturrpa-Kanttaji Land
Claim No. 114 on 22nd November 1993. My statement was, "The Northern Territory Government
adopts the role of an opponent to land claims, especially those involving unalienated Crown Land."
The Solicitor-General, in his letter said:
"I am dismayed that you have made this comment. It does not accurately reflect the role that
the Northern Territory has adopted and continues to adopt in the land claim process."
I have the letter on file.
7. The proposed site visit program was not followed
completely. On 9th November, Mr. Ross Howie, counsel for
the claimants, requested that I visit the site designated
as Iltjitjari and numbered 41 in the afternoon and that
the visit be restricted to women and myself. Mr. Howie
said:
"It is proposed your Honour that women give evidence there about the place and about ritual
associated

61
6
with the place. It is a ritual that is restricted to women and that women perform it and
women know about it, and the knowledge of it is not communicated to men. And it is
proposed that save for yourself, that no men be present. As far as the claimant women are
concerned, they will be assisted in giving their evidence by Ms. Julia Munster."
I then. asked Mr Howie what restrictions he proposed
should be made in respect of transcript. His response
was, "That it be in the same way as the men's
transcript is restricted, only that it be restricted to
women, rather than to men. I raised the question
whether the women claimants would accept the transcript
of their evidence being viewed by male counsel engaged in
the land claim. In the course of a discussion, I
referred to the giving of evidence by women in the
hearing of the Palm Valley Land Claim No. 48, in which
the evidence was given in the absence of males other than
myself, but the women did not object to male counsel
being entitled to see the transcript of it. I pointed
out that this would be of assistance to Mr. Howie, Mr.
Hughston and Mr. Neal (counsel assisting the Aboriginal
Land Commissioner) in the making of submissions in
relation to the claim, but said that "ultimately it is a
matter for the claimants themselves" Mr. Howie said
that he would seek instructions about the matter of the
transcript. Mr. Hughston objected to the proposed
course. In summary ,his objection was that there was no
reason why a dispensation could not be made in favour of
male counsel if one could be made in favour of an
Aboriginal Land Commissioner, that the Attorney-General
for the Northern Territory was not represented by female
counsel experienced in land claim matters but had
available at the time the services of Ms. Bonner, a
solicitor attending her first land claim hearing as a
learning experience, and that the Attorney-General for
the Northern Territory would be in difficulty if I were
to determine important issues in relation to traditional
ownership on the basis of evidence that he could not
properly comment upon or make submissions upon. Mr. Neal
supported the imposition of the restriction sought on the
hearing of the evidence, but submitted that the
transcript of the evidence should not be restricted a
way that prevented male counsel from reading it. I
invited Mr. Howie to reply. He repeated that he would
seek instructions in relation to the question of
restrictions on the transcript. I then made decisions 1
and 2. The events described in this paragraph are
recorded at pages 208-211 of the transcript of the land
claim hearing.
8. The hearing on 10th November 1994 was conducted in
accordance with the proposed site visit program. It
involved helicopter fights, in which a limited number of
people were shuttled to sites for the taking of evidence.

62
7
In respect of the morning's evidence, I gave a direction
that it and the transcript of it be restricted in that it
not be divulged to anyone other than for the purposes of
the land claim and in any event that it not be divulged
to anyone other than adult males. The direction is to be
found at page 79 of the portion of the transcript that is
subject to directions in those terms or to the like
effect. In the afternoon, the persons who journeyed by
helicopter to a site designated as Minpurru, other than
myself, were all women. It was at that place that I made
decisions 3 and 4,without prior discussion. Those
decisions appear at page 31 of those portions of the
transcript which are the subject of directions that they
and the evidence they contain not be divulged other than
for the purposes of the land claim hearing and in any
event not be divulged other than to adult females.
On 11th November, in the course of the hearing, Mr. Howie
again made application for me to hear evidence restricted
to women, in the absence of all men other than myself, on
the basis that the evidence would involve information of
a secret-sacred nature which should not be disclosed to
men. Mr. Hughston repeated his objection. There was
discussion concerning the fact that Mr. Hughston appeared
to have been given information about evidence that had
been led in in one or both of the sessions which followed
the making of decisions 1 and 2 and decisions 3 and 4. I
pointed out that sometimes, in sessions in which the
evidence is restricted to men, witnesses say things which
are not secret or sacred and that sometimes attempts are
made to rectify the position after the event. I stated
that it is very hard to keep control over the content of
evidence in a restricted session and that I did not feel
like stopping people when they were telling me something
that may be of importance to them. Mr. Hughston
submitted that there are circumstances in which the
evidence is actually led, when an anthropologist will ask
a question obviously inviting evidence which is of a
general nature. I responded that those circumstances
arose in sessions restricted to men and that I supposed
they would arise in circumstances restricted to women.
Mr. Hughston did not otherwise expand on the objection he
had advanced on 9th November. I made decision 5. The
events described in this paragraph are recorded at pages
272-274 of the transcript of the land claim hearing.
10. The hearing of evidence subject to that such
evidence, and the transcript of it, not be divulged other
than for the purposes of the relevant land claim and in
any event not be divulged other than to adult males, has
been a common event in land claim hearings. It has
occurred in each of the land claim hearings which I have
conducted, namely Ngaliwurru, Nungali (Fitzroy Pastoral
Lease) 'Land Claim No. 137, with Victoria River (Bed and
Banks) Land Claim No. 140, (13th to 19th September 1992);
Jawoyn (Gimbat Area) Land Claim No. 111 (13th to 22nd

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October 1992, 1st to 9th March 1993, 15th to 16th April
1993) ; Alligator Rivers Area III (Gimbat Resumption -
Waterfall Creek) Land Claim No. 142 (15th to 16th April
1993); Warnarrwarnarr Barranyi (Borroloola No. 2) Land
Claim No. 30 (16th to 22nd November 1992, 16th to 23rd
June 1993); Warlmanpa (Muckaty Pastoral Lease) Land Claim
No. 135 (24th to 30th July 1993, 3rd to 6th November
1993); Malngin and Nyinin and Claim to Mistake Creek
Pastoral Lease No. 133 (9th to 15th September 1993);
Elsey Land Claim No. 132 (27th September to 6th October
1993); 31st January to 4th February 1994), Palm Valley
Land Claim No. 48 (21st to 26th March1994, 22nd to 25th
August 1994); Loves Creek Land Claim No. 143 (9th to 14th
July 1994, 23rd to 24th August 1994) -It is common for
such directions to be given upon the request of the
counsel for the claimants, without objection from counsel
for the Attorney-General for the Northern Territory.
There are many instances of such directions recorded in
the transcripts of those land claim hearings.
11. In the course of the hearing of the Palm Valley Land
Claim No. 48, on 24th and 26th March and 22nd August
1994, I heard evidence from groups of women claimants, in
the absence of any men other than myself. I gave
directions restricting the hearing of the evidence to
women, but the women concerned consented to the male
counsel involved in the claim reading the transcript of
it, and I gave directions accordingly. Counsel for the
Attorney-General for the Northern Territory objected to
my hearing the evidence under those conditions, but I
overruled his objection. The objections and the
directions are recorded in the transcript of that
hearing.
12. Much knowledge possessed by Aboriginal people bearing on
their relationships with land is of a secret-sacred
nature. Such knowledge is not generally available to
people, even to Aboriginal people. Knowledge is acquired
progressively by Aboriginal people as they reach greater
ages or attain various levels of status within their
communities (such as various stages of initiation of
males). Some ritual and spiritual knowledge is withheld
by men from women and some by women from men. As between
different groups with affiliations to different areas of
land, knowledge may be regarded as secret, because the
possession of it may be regarded as carrying with it some
entitlement to the land in question. The giving of
evidence in land claims always involves decisions as to
the level of knowledge which should be revealed to the
Aboriginal Land Commissioner and to others participating
in and present at the hearing, and which should be
available publicly by means of transcript. This process
involves the making of decisions to grant or withhold
dispensations to various persons or classes of persons to
enable them to hear, or prevent them from hearing,
different aspects of knowledge. Every piece of evidence

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about secret-sacred knowledge given to an Aboriginal Land
Commissioner involves such a dispensation, because no
Aboriginal Land Commissioner has been an initiated
Aboriginal man. I find these facts on the basis of my
experience in hearing the land claims referred to in
paragraph 10.
13. The Attorney-General for the Northern Territory was able
to be represented at the hearing of evidence restricted
to women by reason of the presence of Ms. Bonner. Mr.
Hughston informed me on 9th November that Ms. Bonner was
a solicitor. She was not experienced in land claims, not
having attended the hearing of evidence relating to
traditional ownership previously. I had no reason to
believe that she was anything other than a competent
solicitor, capable of receiving instructions about the
interests of the Attorney-General for the Northern
Territory and of following them during the giving of
evidence.
REASONS FOR DECISIONS
1. As Aboriginal Land Commissioner, hearing a claim under section 50 of
the Land Rights Act, I had a statutory function under subparagraph
(1)(a)(i) of that section to ascertain whether the claimants or any other
Aboriginal people are the traditional owners (as defined in the Land
Rights Act) of the land claimed. My functions were administrative in
nature, and not judicial. They did not involve the resolution of any dispute
inter partes between the claimants and the Attorney-General for the
Northern. Territory or anyone else. I was obliged to ascertain the true
situation from such evidence as I could obtain.
2. I was conscious of the need to afford natural justice to a party whose
interests may be affected by evidence. I take this obligation to mean that I
should afford to the Attorney-General for the Northern Territory such
procedural fairness as the circumstances allowed. In making decisions 1,
3 and 5, I was influenced by:
(a)
(b)
the fact that the Attorney-General for the Northern Territory was
not opposing the land claim, but was limiting its role in relation
to the evidence of traditional ownership to assisting me to
ascertain who are the traditional owners;
the fact that the Solicitor for the Northern Territory received
advance notice of the desire of the claimants to lead evidence
restricted to women, such notice not having been given eight
weeks before practice direction 10(g), but having been given at
least some days before the hearing, thereby providing an
opportunity for the Attorney-General for the

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Northern Territory to come to the hearing prepared
to deal with such evidence, and
(c)
the fact that the Attorney-General for the Northern Territory
was able to be represented at the hearing
of the women's evidence by a qualified legal
practitioner, who I assumed to be competent,
although not experienced in the field.
In making decisions 2 and 4, I was conscious of the
difficulty of making formal submissions without male
counsel being able to look at the whole of the evidence
and hopeful that an arrangement similar to that made in
the Palm Valley Land Claim No. 48 might be possible.
3. I regarded it as proper to pay regard to what I was told
about Aboriginal law in determining who should be allowed
to hear the evidence and see the transcript of it. My
past practice had been to accept statements that
claimants did not wish to reveal some aspects of their
knowledge other than to specified persons or classes of
persons. I was conscious of the fact that in giving
evidence of secret-sacred matters, Aboriginal people are
forced to compromise their position on secrecy and to
allow an Aboriginal Land Commissioner and others to hear
aspects of secret knowledge. In many claims, there would
be no way of succeeding without making such
dispensations. These needs are recognised in the powers
given to the Aboriginal Land Commissioner by sections 51
and 54AA of the land Rights Act. I took the view that it
would be both wrong and ineffective if I should attempt
to force the women claimants to grant a wider
dispensation than they were prepared to grant. It would
be wrong because it is a matter for Aboriginal law to
determine who may hear knowledge, and it is no part of my
function to seek to change Aboriginal law. It would be
ineffective because the claimants would be likely to opt
not to give the evidence, rather than to grant further
dispensations. Whilst I am very appreciative of the
assistance I receive in land claims from the Attorney-
General for the Northern Territory, I believed that
insisting on the presence of the Attorney-General's
representative of choice would not assist me if it
deprived me of evidence which would be otherwise
available. For these reasons, I declined to attempt to
force the women claimants to give a dispensation in
favour of Mr. Hughston.
4. I took the view that, if I refused to hear evidence from
women in the absence of men, but continued to hear
evidence from men in the absence of women, I should be in
breach of the obligations imposed on me by sections 5 and
26 of the Sex Discrimination Act 1984. In breach of
those provisions, in performing a function under a
Commonwealth law, I should be discriminating against
women on the ground of their sex, by treating them less

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favourably than I treated men in circumstances that are the same or not materially different.
5. Even apart from such statutory constraints, I am of the view that an
Aboriginal Land Commissioner should not refuse to hear evidence
from women, or place obstacles in the way of the hearing of such
evidence, when the evidence may assist in the performance of the
functions given to the Aboriginal Land Commissioner by subsection
50(1) of the Land Rights Act. The practice in land claims of dealing
with secret men's knowledge by restricting the classes of persons who
can hear it and read transcript of it has been beneficial in the exercise
of those functions. There is no reason to suppose that a similar practice
with respect to women's knowledge will be less helpful. If all possible
steps are taken to minimise the adverse effects of such a practice on
other parties (such as advance notice that restricted women's evidence
is proposed, so that parties may be suitably represented if they so
desire, and possible dispensations in relation to transcript where
claimants are willing to grant them) , I believe much useful evidence
will become available.
PETER R. A. GRAY
Aboriginal Land Commissioner
3rd February 1995

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APPENDIX 6
The site map appearing in the
original report submitted by
Justice Gray to the Minister
has been omitted on request from
the Central Land Council, and
with the consent of the Minister.