Gumana v Northern Territory

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FEDERAL COURT OF AUSTRALIA

Gumana v Northern Territory of Australia [2007] FCAFC 23

ABORIGINES – land rights – grant of fee simple estate to land trust – effect of grant in inter-tidal zone – whether exclusive possession – whether excludes power of Northern Territory Director of Fisheries to grant fishing licences in area
NATIVE TITLE – inter-tidal zone – non-recognition at sovereignty of exclusive rights of possession in inter-tidal zone – whether a form of extinguishment – whether amenable to operation of s 47A of Native Title Act 1993 (Cth) mandating conditional disregard of extinguishment – native title holders – membership of group – spouses of clan members – access – non-exclusive possession – whether right to control access by other Aboriginal people

Aboriginal Land Rights (Northern Territory) Act 1976
Judiciary Act 1903 (Cth)
Fisheries Act 1988 (NT)
Native Title Act 1993 (Cth) s 47A
Aboriginal Land Act 1978 (NT)
Northern Territory (Self Government Act) 1978 (Cth)
Coastal Waters (Northern Territory Powers) Act 1980 (Cth)
Northern Territory Acceptance Act 1910 (Cth)

Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 cited
Gumana v Northern Territory (2005) 141 FCR 457 cited
Commonwealth v Yarmirr (2000) 101 FCR 171 not followed
Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141 cited
Risk v Northern Territory (2002) 210 CLR 392 considered
Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 cited
Haruo Kitakoka v Commonwealth (unreported, NT Supreme Court, No 14 of 1937) cited
Wik Peoples v Queensland (1994) 49 FCR 1 cited
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 cited
Yarmirr v Northern Territory (No 2) (1988) 82 FCR 533 not followed
Yanner v Eaton (1999) 201 CLR 351 cited
Yarmirr v Northern Territory of Australia [2000] FCA 48 cited
Commonwealth v Yarmirr (2001) 208 CLR 1 applied
Fejo v Northern Territory (1998) 195 CLR 96 cited
Wik Peoples v Queensland (1996) 187 CLR 1 cited
Attorney-General v Chambers (1854) 4 De G M & G 206 cited
Blundell v Catterall (1821) 5 B & Ald 258 cited
Fowley Marine (Emsworth) Ltd v Gafford [1967] 2 QB 808 cited
Svendsen v State of Queensland [2002] 1 Qld R 216 cited
Cooper v Phibbs (1867) LR 2 HL 149 cited
Harper v Minister for Sea Fisheries (1989) 168 CLR 314 cited
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 cited
Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 cited
Potter v Minahan (1908) 7 CLR 277 cited
Malika Holdings Pty ltd v Stretton (2001) 204 CLR 290 cited
Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 cited
R v Janceski (2005) 64 NSWLR 10 cited
Coco v The Queen (1994) 179 CLR 427 cited
Daniels Corporation v Australian Competition and Consumer Commission (2002) 213 CLR 543 cited
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited
Al Kateb v Godwin (2004) 219 CLR 562 cited
R…

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Details
Case
[2007] FCAFC 23
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia was asked to decide whether the grant of fee simple estates under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) included the waters overlying the land granted. The appellants, the Northern Territory and the Director of Fisheries, argued that the grants did not include the waters. The respondents, the traditional owners of the land, contended that the grants did include the waters. The court was required to interpret the Land Rights Act and determine the scope of the traditional owners' rights over the waters.

The court began by examining the historical context of the Land Rights Act and the traditional beliefs of the Aboriginal communities regarding their connection to the land and waters. The court noted that the traditional owners regarded the estuaries, bays, and waters adjacent to the shoreline as part of their land. The court then considered the relevant provisions of the Land Rights Act and the reports of the Woodward Commission, which informed the drafting of the Act. The court held that the conferral of powers of self-government on the Northern Territory and the extension of those powers to coastal waters should not be read down by reason of the Land Rights Act. The court concluded that the traditional owners' rights over the waters were not extinguished by the grants and that the Fisheries Act 1988 (NT) did not apply to the areas within the boundary lines described in the Deeds of Grant.

The court ordered that the appeal be dismissed, the first respondent's cross-appeal be allowed, and the Native Title Determination made on 11 October 2005 be set aside. The court also declared that the Fisheries Act 1988 (NT) had no application in relation to areas within the boundary lines described in the Deeds of Grant and did not confer on the second respondent a power to grant a licence under that Act. The court further declared that the Fisheries Act 1988 (NT) was invalid and of no effect in so far as it purported to operate with respect to areas subject to the Grants. The parties were granted leave to file submissions as to the costs of the appeal within 14 days.

Orders

Orders of the court

1. The appeal be dismissed.

2. The first respondent’s cross appeal is allowed and that of the second respondent allowed to the extent of the following order.

3. Sub-paragraph 7(c) of the Native Title Determination made on 11 October 2005 be set aside.

4.

1. The appeal be allowed.

2. The order made on 11 October 2005 be set aside and in lieu thereof it is declared that the Fisheries Act 1988 (NT):

(a) has no application in relation to areas within the boundary lines described in the Deeds of Grant known as the Arnhem Land (Mainland) and Arnhem Land (Islands) Grants made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth);

(b) does not confer on the second respondent a power to grant a licence under that Act, which licence would authorise or permit the holder to enter and take fish or aquatic life from areas subject to the Grants;

(c) is invalid and of no effect in so far as it purports to operate with respect to areas subject to the Grants.

2. The parties have leave to file submissions as to the costs of the appeal within 14 days.

1. There be a determination of native title in the terms of the determination set out below.

2. The native title is not to be held on trust.

3. An Aboriginal corporation whose name is to be provided within 12 months, or such other time as the Court may allow, is to:

(a) be the prescribed body corporate for the purposes of subs 57(2) of the Native Title Act 1993 (Cth) (‘the Act);

(b) perform the functions outlined in subs 57(3) of the Act after becoming a registered native title body corporate.

4. Each party and the intervenor bear their or its own costs of the proceeding.

THE COURT DETERMINES THAT:

The Determination Area

1.1. Native title exists in the areas of land and waters depicted on the map comprising Schedule B and described in Schedule A hereto (‘the determination area’), the determination area being made up of:

(a) the areas described in item 1(a) of Schedule A (‘the land and inland waters’);

(b) the areas described in item 1(b) and (c) of Schedule A (‘the inter-tidal zone’); and

(c) the areas described in item 1(d) of Schedule A (‘the outer waters’).

1.2. In the event of inconsistency between Schedules A and B, Schedule A prevails.

1.3 In this determination, unless the contrary intention appears:

(1) ‘land’ and ‘waters’ bear the meanings given by s.253 of the Act;

(2) ‘low water mark’ and ‘high water mark’ refer to the mean low water mark and the mean high water mark;

(3) ‘resources’ does not include minerals, petroleum, natural gas and any other natural resource to the extent to which native title has been extinguished or affected pursuant to valid laws of the Northern Territory and Commonwealth of Australia.

The native title holders

2. The whole of the determination area comprises parts of the estates of the eight Yirritja Moiety clans and the seven Dhuwa Moiety clans known as:

(a) Yirritja moiety clans: (1) Yarrwidi Gumatj, (2) Manggalili, (3) Gumana Dhalwangu, (4) Wunungmurra (Gurrumuru) Dhalwangu, (5) Dhupuditj Dhalwangu, (6) Munyuku, (7) Yithuwa Madarrpa, (8) Manatja.

(b) Dhuwa moiety clans: (1) Gupa Djapu, (2) Dhudi Djapu, (3) Marrakulu 1, (4) Marrakulu 2, (5) Djarrwark 1, (6) Djarrwark 2, (7) Galpu.

3. The persons who hold the communal, group and individual rights comprising the native title are the Aboriginal persons who:

(a) are members of one of the fifteen clans referred to at 2 by virtue of descent through his or her father’s father or by virtue of adoption into the clan;

(b) are the guardians of or successors to the rights of a clan and its members in relation to a clan’s estate;

(c) have kinship connections to one or more of those clans by virtue of the fact that his or her mother (ngandi) or mother's mother (mari) is or was a member of such clan;

(d) are spouses of persons referred to in sub-par (a); or

(e) have non-descent based connections to part or parts of the determination area by virtue of:

(1) his or her place of spirit conception being in the determination area;

(2) being a member of a clan (other than one of the fifteen clans referred to at 2), which clan has one or more estate areas adjacent to one or more of the estate areas that comprise the determination area and that person has relations with one or more of the fifteen clans and their estates through kinship or marriage; or

(3) related spiritual (wangarr) affiliations or ritual authority in or related to the determination area;

(4) being a member of one of the clans known as Ngaymil, Datiwuy, Guyula Djambarrpuyngu and Marrangu who are at times entitled to access places in the determination area associated with ceremony and known as ringgitj places.

Native Title Rights in Land and Inland Waters

4. In relation to the land and inland waters, the native title rights and interests that are possessed under the traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, possession, occupation, use and enjoyment to the exclusion of all others.

Other Interests in Land and Inland Waters

5. The other interests in relation to the land and inland waters are:

(a) the interests of the Arnhem Land Aboriginal Land Trust under the two deeds of grant dated 30 May 1980 made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth);

(b) the rights of a holder of a permit granted under Part II of Aboriginal Land Act 1978 (NT) and the rights of a person to otherwise enter or remain on or use the area permitted by ss.69-71 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), Part II of the Aboriginal Land Act 1978 (NT) and Parts IV and V of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);

(c) the rights and interests of Telstra Corporation Limited:

(1) as the owner and operator of telecommunications facilities installed within the determination area, being, the Warralwuy Radio Site situated on Northern Territory Portion 5748(A), the Durabudboi Radio Site situated on Northern Territory Portion 5752(A), and certain customer radio terminals and as the holder of a carrier licence under the Telecommunications Act 1997 (Cth), including the right for its employees, agents or contractors to have access to the telecommunications facilities for the purposes of maintaining and operating the telecommunications facilities; and

(2) pursuant to the lease to Telstra Corporation Limited from the Arnhem Land Aboriginal Land Trust in relation to NT Portion 5748(A), registered 31 May 2000, in respect of the Warralwuy Radio Site.

(d) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties;

(e) the interests of persons to whom valid and validated rights and interests have been:

(1) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or

(2) otherwise conferred by statute.

6. The relationship between the native title rights and interests and the other interests in relation to the land and inland waters is as follows:

(a) the other interests and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests, but do not extinguish them, and the existence and exercise of the native title rights and interests do not prevent the doing of the activity;

(b) to the extent that the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other interests during the currency of those interests;

(c) if those other interests are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have effect.

Native Title Rights in the Inter-Tidal Zone and Outer Waters

7. In relation to the inter-tidal zone and outer waters the native title rights and interests that are possessed under the traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the rights and interests by the native title holders, rights of access to, and use of resources in or on, clan estate areas, being:

(a) the right to hunt, fish, gather and use resources within the area (including the right to hunt and take turtle and dugong) for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed by and under their traditional laws and customs;

(b) the right to access, use and travel over and visit any part of the area in accordance with and for the purposes allowed by and under their traditional laws and customs, including:

(i) to access the area for religious, spiritual or cultural purposes or to engage in religious, spiritual or cultural practices;

(ii) to visit, have access to, and maintain sites, places and areas of religious, spiritual or cultural importance or significance within the area;

(c) the right to make decisions about access to and use and enjoyment of the area by Aboriginal people who recognise themselves as governed by the traditional laws and customs acknowledged and observed by the native title holders.

8. The native title rights and interests do not confer on the native title holders possession, occupation, use and enjoyment of the inter-tidal zone and outer waters to the exclusion of others.

Other Interests in the Inter-tidal Zone

9. The other interests in the inter-tidal zone are:

(a) the interests of the Arnhem Land Aboriginal Land Trust under the two deeds of grant dated 30 May 1980 made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth);

(b) the rights of a holder of a permit granted under Part II of the Aboriginal Land Act 1978 (NT) and the rights of a person to otherwise enter or remain on or use the area permitted by ss.69-71 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), Part II of the Aboriginal Land Act 1978 (NT) and Parts IV and V of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);

(c) the rights of the persons holding licences to fish granted under the Fisheries Act 1988 (NT) and the regulations made thereunder or any other legislative scheme for the control, management and exploitation of the living resources within the area;

(d) the right of members of the public to fish otherwise than under the rights specified at (c) above;

(e) the rights of members of the public to navigate;

(f) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties;

(g) the interests of persons to whom valid and validated rights and interests have been:

(1) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or

(2) otherwise conferred by statute.

10. The relationship between the native title rights and interests and the other interests referred to at 9(a) (b), (c) (f) and (g) in relation to the inter-tidal zone is as follows:

(a) the other interests and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests, but do not extinguish them, and the existence and exercise of the native title rights and interests do not prevent the doing of the activity;

(b) to the extent that the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other interests during the currency of those other interests;

(c) if those other interests are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have effect to that extent.

11. The relationship between the native title rights and interests and the other interests referred to at 9(d) and (e) in relation to the inter-tidal zone is as follows:

(a) the other interests co-exist with the native title rights and interests;

(b) the determination does not affect the validity of those other interests;

(c) to the extent of any inconsistency, the native title rights and interests yield to the other interests.

Other Interests in the Outer Waters

12. The other interests in the outer waters are:

(a) the rights of the persons holding licences to fish granted under the Fisheries Act 1988 (NT) and the regulations made thereunder or any other legislative scheme for the control, management and exploitation of the living resources within the area;

(b) the right of members of the public to fish otherwise than under the rights specified at (a) above;

(c) the right of members of the public to navigate;

(d) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties;

(e) the interests of persons to whom valid and validated rights and interests have been:

(1) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or

(2) otherwise conferred by statute

13. The relationship between the native title rights and interests and the other interests referred to at 12 in relation to the outer waters is as follows:

(a) the other interests co-exist with the native title rights and interests;

(b) the determination does not affect the validity of those other interests;

(c) to the extent of any inconsistency, the native title rights and interests yield to the other interests;

Other Matters

14. The native title rights and interests are subject to and exercisable in accordance with the valid laws of the Northern Territory of Australia and the Commonwealth of Australia.

15. There are no native title rights and interests in:

(a) minerals as defined in s.2 of the Minerals Acquisition Act 1953 (NT);

(b) petroleum as defined in s.5 of the Petroleum Act (NT);

(c) prescribed substances as defined in s.5 of the Atomic Energy Act 1953 (Cth) and s.3 of the Atomic Energy (Control of Materials) Act 1946 (Cth).

Background

Background to the litigation

The Northern Territory and its Director of Fisheries, by their notice of contention, asserted that the grant of fee simple estates under the Land Rights Act does not include waters overlying the area the subject of the grants. The Land Rights Appeal - background to the Land Rights Act The land of Blue Mud Bay formed part of the Arnhem Land Reserve, a Reserve created in 1931 “for the use and benefit of Aboriginal native inhabitants” under the Crown Lands Ordinance 1927 (NT). That Reserve was resumed and replaced by a consolidated Reserve in 1963. The Proclamation for this Reserve identified the boundaries of it by reference to the low water marks of various rivers and of the Timor or Arafura Seas. The description of the reserved lands utilised straight lines to join the extremities of the banks of rivers, streams and estuaries. In so doing the proclamation included the inter-tidal zone of those rivers etc, in the Reserve’s lands: see generally the Land Trust Case FC 109 FCR at [33]-[40]. Successive legislative measures were taken from the proclamation of the original Reserve to control access to it and to those areas which were added to or replaced it, by persons other than Aboriginals: see e.g. Aboriginals Ordinance 1918 (NT), ss 3 and 19. The significance of such measures, presently reflected in s 70 of the Land Rights Act, is considered later in these reasons. Following the unsuccessful attempt of the traditional owners to restrain proposed bauxite mining and treatment in areas of Arnhem Land in the Gove Peninsula: see Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141; the Commonwealth Government established what became known as the Woodward Commission to report on appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to land and otherwise to satisfy their reasonable aspirations to rights in or in relation to land. The two reports of the Commission resulted in the Land Rights Act. The relationship of these reports to the Act has been commented upon at some length in a number of cases, most notably in the Land Trust Case FC, at [46]-[64] and Risk v Northern Territory (2002) 210 CLR 392 at [43]-[46], [83]-[86] and [102]. It is unnecessary to do so again here. However we would note the following as it provides some context for the provisions of the Land Rights Act with which we are concerned. Firstly, in his First Report Woodward J noted that a number of Aboriginal communities in the north had raised questions of fishing rights. He noted ([205]):It seems clear that Aboriginal clans generally regard estuaries, bays and waters immediately adjacent to the shore line as being part of their land. So also are the waters between the coastline and offshore islands belonging to the same clan. Secondly, Woodward J returned to the issue of fisheries in his Second Report. He noted ([420]) that:Although there has been some doubt about the legal position in the past, the estuaries and tidal flats of Northern Territory Aboriginal reserves have been generally regarded as being part of the reserves and therefore out-of-bounds to commercial fishermen.The Report went on to indicate ([421]) that the Northern Land Council asked that “this principle be recognized” and extended and that an area stretching 12 miles seaward should be treated as part of Aboriginal land “for purposes of protection of land rights”. The Commissioner then commented:422.I accept that Aborigines make traditional claims to most, and probably all, off-shore islands. Their legends link those islands with the mainland because of the passage of mythical beings from one to the other. The effect of this is that the sea between also has significance. Certainly Aborigines generally regard estuaries, bays and waters immediately adjacent to the shore line as being part of their land. 423.However I am unable to endorse a claim to an area of sea as great as twelve miles from the coast. It seems to me that the legitimate interests of Aborigines will be protected if their traditional fishing rights are preserved and their right to the privacy of their land is clearly recognized by the establishment of a buffer zone of sea which cannot legally be entered by commercial fishermen or holiday makers. An exception would have to be made in cases of emergency.424.To establish these principles some arbitrary figure has to be arrived at, which I have already suggested (para 91) might be two kilometres from low tide. Since all the fishing is done by netting or the use of hand-lines in comparatively shallow water, this should suffice for both the purposes to which I have referred.This Report had earlier recommended that the proclamations of reserves should describe them “by their boundaries” ([91]).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In relation to the two kilometre “buffer zone”, his Honour considered that the conferral of powers of self-government on the Northern Territory by the Self Government Act and the extension of those powers to coastal waters by the Coastal Waters (Northern Territory Powers) Act should not be read down by reason of s 73(1)(d) of the Land Rights Act. This conclusion has not been called into question in this appeal.The Land Rights Appeal - revisiting the Full Court decision in Yarmirr It is well accepted that the principle of comity generally applied by a Full Court of this Court to an earlier Full Court decision is that the earlier decision should be followed unless the later Court considers it is plainly wrong: see generally SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. In satisfying itself whether or not the earlier Court so erred, a later Court ordinarily will have the benefit of reasons which will themselves betray the reasoning process for the earlier decision and so provide a basis for evaluation of that decision. On the point in issue there are no such reasons in the judgment of the trial judge in Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 (Yarmirr TJ) and of the majority in Yarmirr FC 101 FCR 171. A native title determination application was made in Yarmirr TJ 82 FCR 533 over the seas and seabed within the claim area in the Crocker Island region of the Northern Territory. Importantly it excluded land and reefs already granted to the Land Trust under the Land Rights Act. As in the present matter the outer boundary of the grant extended to the low water mark. The trial judge, Olney J, indicated that the effect of that exclusion was to exclude the land of the inter-tidal zone. This then raised the question whether the exclusion also excluded the waters which from time to time covered that zone. Being of the view that it was legitimate under the Native Title Act (given the definition of “waters” in s 253) to treat the sea-bed differently from the sea which covers it, Olney J concluded it was open to claim a determination in respect of the sea of the inter-tidal zone without making a claim in respect of the “sea-bed of that zone”: Yarmirr TJ 82 FCR at 546. These waters were in consequence included on the sea claimed in the native title application. It should be noted that the Land Trust was not a party to the proceeding before Olney J. In the event Olney J concluded that the evidence did not establish the existence of a native title right in the applicant community either to the exclusive possession, occupation and use of the waters of the claimed area or to control access to those waters: Yarmirr TJ 82 FCR at 593. His Honour had earlier indicated that the claimed native title right would not be recognised by the common law because “that would contradict the common law public right to navigate … [and] the public right to fish”: Yarmirr TJ 82 FCR at 593. It is clear from an extract of the transcript of the hearing before Olney J that the applicants’ counsel claimed that:… the Land Trust already owns the water column over the land down to the low water mark, and that accordingly those seas are not the subject of the current claim. We also say that if your Honour were against us on that point, then we do claim those seas.This Court has been asked to infer from this and from Olney J’s conclusion that he rejected the ownership claim to the “water column”. Even if we accepted this, we can only say that His Honour’s reasons for that rejection are nowhere revealed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.