Gumana v Northern Territory

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.