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Gumana v Northern Territory

Gumana v Northern Territory

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Case Copied 7 February 2005 81 min read

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FEDERAL COURT OF AUSTRALIA
Gumana v Northern Territory of Australia [2005] FCA 50
ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 (CTH) – whether grant of fee simple “to low water mark” subject to public rights to fish or navigate – whether land grant limited to solid land – whether Fisheries Act 1988 (NT) can validly apply to inter-tidal zone – [51]–[93]
CONSTITUTIONAL LAW – Northern Territory – whether powers of Northern Territory Parliament to legislate within two kilometres of land grant limited by s 73 of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – [98]–[114] – whether Fisheries Act 1988 (NT) meets requirements of s 73 – [115]–[117]
NATIVE TITLE ACT – nature of determination of native title – “Translation” of indigenous right to statutory right in rem – [119]–[142] – right of exclusive possession – whether single right or “bundle of rights” – [235]–[240] – “non-recognition” at common law – public rights to fish and navigate – sacred sites – [242]–[244]
NATIVE TITLE ACT – effect of s 47A where “non-recognition” – [248]–[263] – constitutional validity of s 47A – [264]–[270]
EVIDENCE – evidence of custom – as evidence of fact – not opinion evidence or hearsay evidence – [152]–[162] – inference that custom existed since date of settlement – [196]–[202] – problems with anthropological evidence – [163]–166] – use of written statements in native title cases – [180]–[184]
Aboriginal Councils and Associations Act 1976 (Cth)
Aboriginal Land Act 1978 (NT)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Aboriginal Land Rights (Northern Territory) Act, 1976 (Cth)
Aboriginal Ordinance 1918 (NT)
Coastal Waters (Northern Territory Powers) Act 1980 (Cth)
Coastal Waters (Northern Territory Title) Act, 1980 (Cth)
Commonwealth Constitution
Control of Waters Act (NT)
Crown Lands Consolidation Act 1882 (SA)
Darwin Port Corporation Act (NT)
Evidence Act 1995 (Cth)
Fisheries Act 1988 (NT)
Interpretation Act (NT)
Judiciary Act 1903 (Cth)
Native Title Act 1993 (Cth)
Northern Territory (Administration) Act 1910 (Cth)
Northern Territory (Self Government) Act, 1978 (Cth)
Northern Territory (Self Government) Regulations 1978 (Cth)
Northern Territory Aboriginal Sacred Sites Act (NT)
Northern Territory Acceptance Act 1910 (Cth)
Northern Territory Crown Lands Act 1890 (SA)
Northern Territory Land Act 1899 (SA)
Northern Territory Surrender Act 1907 (SA)
Seas and Submerged Land Act, 1973 (Cth)
Self Government Act (Act No 58 of 1978)
Telecommunications Act 1997 (Cth)
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
Aboriginal Ordinance 1918 (NT)
Crown Lands Ordinance 1927
Interpretation Ordinance 1931 (NT)
Mining (Gove Peninsula Nabalco Agreement) Ordinance
Ports Ordinance 1962 (NT)
Social Welfare Ordinance 1964 (NT)
Welfare Ordinance 1953 (NT)
A Raptis & Sons v South Australia (1977) 138 CLR 346
AG (British Columbia) v AG (Canada) [1914] AC 153
AG (NT) v Maurice (1986) 161 CLR 475
AG v Ngati Apa [2003] 3 NZLR 643
AG v Schmidt (1961) 105 CLR 361
AG v Swan (1921) 21 SR (NSW) 408
Allnutt v Inglis (1810) 12 East 527
Anderson v Alnwich DC [1993] 1 WLR 1156
Arnhem Land Aboriginal Land Trust v Director…

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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Details

Case: [2005] FCA 50
Decision Date: 7 FEBRUARY 2005

CaseChat Overview and Summary

The case of Gumana v Northern Territory involved the Yolngu people of north-east Arnhem Land, who brought a claim for recognition of native title over their traditional lands. The claimants argued that their connection to the land and their traditional customs and laws entitled them to rights over the area, which they have occupied and managed for generations. The Northern Territory, represented by the Commonwealth, contested the claim on several grounds, including the impact of historical events and legislative actions that have affected the status of the land.

The primary legal issues before the court were the validity of the claimants' assertion of native title over the land in question and whether any traditional laws and customs could be recognised under Australian law. The court had to consider the historical context of the land, including its status under colonial and federal governance, and how these factors might impact the current claim for native title. Additionally, the court needed to determine whether the claimants' traditional laws and customs could be reconciled with Australian common law and statutory frameworks.

In its reasoning, the court acknowledged the deep historical and cultural connection of the Yolngu people to the land. It recognised that the claimants had a strong case for native title based on their continuous occupation and use of the land according to their traditional laws and customs. However, the court also considered the legal implications of the land's history, including its status under colonial and federal governance. The court found that while the claimants had a compelling case, the legal recognition of their native title rights required further examination of the specific legal and historical contexts involved. The court decided that more detailed submissions from the parties were needed to fully address the complex issues at hand.

The orders of the court included adjourning the proceedings to allow the parties to make further submissions on the appropriate terms of final orders, reserving the question of costs, and granting liberty to apply for further directions. This decision indicated that the court recognised the importance of the case and the need for a thorough examination of the issues involved.

Orders

Orders of the court

1. The proceedings be adjourned to a date to be advised to enable the parties to make submissions as to the appropriate terms of final orders.

2. Question of costs be reserved.

3. Liberty to apply.

Background

Background to the litigation

The area of north-east Arnhem Land has a distinctive history. The Aboriginal inhabitants of the area form a distinct cultural group with similar languages, traditions and customs. They are generally described as the “Yolngu” people. That word apparently has a number of different meanings - it is used in these reasons to refer to that cultural group. The claimants are all Yolngu people. The clans that they represent are identified by Yolngu tradition.GENERAL CONSTITUTIONAL BACKGROUND The area of north-east Arnhem land, being to the eastward of the 135th degree of east longitude, formed part of the colony of New South Wales when it was first settled in January, 1788. Apart from a period from 1846-1848 when that area formed part of a separate colony of North Australia, the area remained part of New South Wales until September, 1863. It was then annexed to the province of South Australia pursuant to letters patent dated 6 July, 1863. Those letters patent referred to the area which had previously formed part of the colony of New South Wales, but also expressly included “the bays and gulfs therein”. This is discussed in more detail below. When the federal Commonwealth was created in 1901 by the Commonwealth Constitution the Northern Territory formed part of the State of South Australia. Pursuant to the powers conferred by s 111 of the Constitution the Northern Territory, “together with the bays and gulfs therein” was surrendered by South Australia to the Commonwealth by s 7 of the Northern Territory Surrender Act, 1907 (SA) and by s 6 of the Northern Territory Acceptance Act 1910 (Cth). Thereafter the Northern Territory was a Territory for the purposes of the Commonwealth Constitution. This history is described in M H McLelland, “Colonial and State Boundaries in Australia” (1971) 45 ALJ 671 and in the judgment of Gallop J in Rogers v Squire (1978) 23 ALR 111 at 116-119 and in the joint judgment of Beaumont and von Doussa JJ in Commonwealth v Yarmirr (1999) 101 FCR 171 (Yarmirr FC) at 199-200 [92] – [95]. In the reasons of McHugh J and of Callinan J in the High Court in Commonwealth v Yarmirr (2001) 208 CLR 1 (Yarmirr HC) at 70-71 and 148-150 both of their Honours refer to the extension of the territory of New South Wales in 1824 to include the remaining part of what is now the Northern Territory to the west of the 135th degree of east longitude. It may be that there is an implication that their Honours were of the view that the area of north-east Arnhem land had not been claimed by the British Crown before 1824. Nevertheless, it is clear (and was accepted by all parties) that the area that is the subject of the current proceedings (leaving aside the “bays and gulfs”) was claimed by the British Crown as from January, 1788. The Northern Territory was governed by the Commonwealth Government from 1911 pursuant a variety of statutes, but particularly the Northern Territory (Administration) Act 1910 (Cth) (the Administration Act). Responsible self-government was conferred on the Northern Territory by the Northern Territory (Self Government) Act 1978 (Cth) (the Self Government Act). HISTORY OF THE CLAIMANT AREA

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SELWAY J

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Ratio Decidendi

Legal Principle Established

Established by: SELWAY J

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