In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete.
3 December 1999
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6005 OF 1998
BETWEEN:
THE COMMONWEALTH OF AUSTRALIA Appellant
AND:
MARY YARMIRR & ORS First Respondents
THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent
PASPALEY PEARLING COMPANY PTY LTD Third Respondent
NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION Fourth Respondents
OCEAN TRAWLER PTY LTD Fifth Respondent
SHINE FISHERIES PTY LTD Sixth Respondent
M G KAILIS GULF FISHERIES PTY LTD Seventh Respondent
PAVALINA HENWOOD Eighth Respondent
ARNHEM LAND ABORIGINAL LAND TRUST Ninth Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6006 OF 1998
BETWEEN:
MARY YARMIRR & ORS Appellants
AND:
THE NORTHERN TERRITORY OF AUSTRALIA First Respondent
THE COMMONWEALTH OF AUSTRALIA Second Respondent
PASPALEY PEARLING COMPANY PTY LTD Third Respondent
NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION Fourth Respondents
OCEAN TRAWLER PTY LTD Fifth Respondent
SHINE FISHERIES PTY LTD Sixth Respondent
M G KAILIS GULF FISHERIES PTY LTD Seventh Respondent
PAVALINA HENWOOD Eighth Respondent
ARNHEM LAND ABORIGINAL LAND TRUST Ninth Respondent
JUDGES:
BEAUMONT, VON DOUSSA & MERKEL JJ.
DATE:
3 DECEMBER 1999
PLACE:
SYDNEY (HEARD IN DARWIN)
SUMMARY OF REASONS FOR JUDGMENT GIVEN ON 3 DECEMBER 1999
These were appeals against a determination of native title made on 4 September 1998 by Justice Olney of the Federal Court. The determination was made under the Native Title Act 1993 (Cth), before its amendment in 1998. The proceedings raised several important questions, including whether native title may be recognised, and protected, in relation to Australia’s coastal seas, and if so, the extent of such recognition and protection. The appeals were heard in Darwin over five days by a Full Federal Court constituted by Justices Beaumont, von Doussa and Merkel.
(a) The claimants and the claimed area at first instance
The application for determination of native title before Olney J was made on behalf of the Mandilarri-Ildugij, Mangalara, Murran, Gadura-Minaga and Ngaynjaharr peoples (“the claimant group”). The claim was, in essence, for the ownership and exclusive possession, occupation, use and enjoyment of an area of seas, including the sea-bed and its resources, in the vicinity of Croker Island in the Northern Territory.
The claimed area was described (generally) as the seas in the Croker Island region of the Northern Territory; that is, the seas which adjoin Croker Island, Manburrwa (Oxley…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Commonwealth v Yarmirr [1999] FCA 1668
Case
[1999] FCA 1668
Decision Date
CaseChat Overview and Summary
In the case of Commonwealth v Yarmirr, the central dispute centred around the implications of certain fisheries legislation and the licences issued under it on native title rights, specifically the potential extinguishment of these rights. The legal battle was heard in the Federal Court of Australia, where the complexities of native title law and its intersection with legislative acts were meticulously examined.
The primary legal issues that the court was required to decide involved the interpretation and application of the Northern Territory Fisheries Act 1988 (Cth) and its associated licences. The central question was whether these legislative instruments and the licences granted under them could extinguish native title rights, particularly an exclusive or commercial fishery within the claimed area. This required the court to delve into the principles of native title law, statutory interpretation, and the implications of legislative acts on pre-existing rights.
The court's reasoning was grounded in a detailed analysis of the legislative framework and its interaction with native title rights. The court concluded that the fisheries legislation and the licences did not operate to extinguish native title rights if such rights were proved. This conclusion was reached after considering the specific terms of the legislation, the nature of native title rights, and the principles governing the extinguishment of native title. The court also noted that a definitive answer could only be provided in the context of a specific native title claim. Consequently, the court dismissed the Commonwealth's appeal, allowed the appeal of the claimant group, and remitted the matter for further hearing by the original judge.
The final orders of the court mandated the dismissal of both appeals, with specific attention to the costs. The court ruled that there would be no orders for the costs of the appeals, reflecting the complex and nuanced nature of the legal issues involved.
Orders
Orders of the court
1. Appeals dismissed.
2. No orders for the costs of the appeals.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
For the foregoing reasons, in my view the fisheries legislation and the licences granted thereunder do not appear to operate to extinguish a native title right or interest, if proved, to an exclusive or commercial fishery in any particular part of the claimed area. I have expressed my conclusion in qualified terms, as a determinative answer to the issue of extinguishment can only be given in the context of a native title claim to an exclusive or commercial fishery in a particular part of the claimed area. Further, in the light of my conclusion, it is unnecessary to consider whether the Validation of Titles and Acts Act 1994 (NT) or the Validation (Native Title Act) 1999 (NT) might affect any determination that may be made on a remitter: cf Olney J at 82 FCR 600.Conclusions For the above reasons I would dismiss the appeal of the Commonwealth, allow the appeal of the claimant group and remit the matter for further hearing by Olney J. As the claimant group has succeeded on the Commonwealth’s appeal and has been partially successful on its appeal I would order that the Commonwealth pay one half of the claimant group’s taxed costs of and incidental to the appeal and the cross appeal.