Commonwealth v Yarmirr

Case [1999] FCA 1668


FEDERAL COURT OF AUSTRALIA

THE COMMONWEALTH OF AUSTRALIA

V

MARY YARMIRR

(Action DG 6005 of 1998)

MARY YARMIRR

V

THE NORTHERN TERRITORY OF AUSTRALIA

(Action DG 6006 of 1998)

[1999] FCA 1668

SUMMARY

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…

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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

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Evidence

Evidence Before The Court

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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.

Ratio Decidendi

Legal Principle Established

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