Yarmirr, Mary v The Northern Territory of Australia
[1997] FCA 202
•4 Apr 1997
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION No DG 6001 of 1996
BETWEEN:
MARY YARMIRR AND ORS
Applicant
-and-
THE NORTHERN TERRITORY OF AUSTRALIA AND ORS
Respondents
Coram: Olney J
Place: Melbourne\Darwin by video link
Orders
Made: 21 March 1997
Reasons published: 4 April 1997
REASONS FOR JUDGMENT
The matter before the Court involves an application by Ms Pavalina Henwood (Ms Henwood) for leave to be joined as a party to the proceeding. After hearing argument on 21 March 1997 I made the orders which are set out at the end of these reasons and indicated that I would publish my reasons later. I now publish my reasons.
The substantive proceeding is an application for a determination of native title in relation to certain off-shore waters in the general vicinity of Croker Island in the Northern Territory (the subject waters) which has been referred to the Court pursuant to s 74 of the Native Title Act 1993 (the Act). Ms Henwood is not a party to the proceeding by virtue of s 84(1) but seeks leave pursuant to s 84(2) to be
joined as a party on the ground that her interests may be affected by a determination in the proceeding.
The facts on which Ms Henwood relies are set out in an affidavit sworn by her on 25 February 1997 and can be summarised as follows:
Ms Henwood is a member of the Aboriginal race of Australia having been born at Markinbar (Bamboo Creek) in the Northern Territory in about 1944. She is a member of the Marrannuggu clan of the Wagait group and is recognised as a traditional Aboriginal owner under the Aboriginal Land Rights (Northern Territory) Act 1976 of certain land in the Northern Territory. Such recognition does not extend to the subject waters.
At the age of about 18 months Ms Henwood was removed from her family and taken via Darwin to the Methodist Church mission and institution for Aboriginal children of mixed descent then established at Croker Island. At the age of about 14 years she suffered an injury and was later taken to hospital in Darwin. She returned to Croker Island but later, when about 16 or 17, left to undergo further medical treatment in Darwin and then moved to Adelaide where she lived for about 11 years. She subsequently returned to Darwin in 1970. She presently resides at the White Eagle Community, Wagait Aboriginal Reserve.
While an inmate at the Croker Island institution Ms Henwood engaged in fishing on a non-commercial basis and since her return to Darwin has made frequent trips to Croker Island and had regular discussions with the community resident there regarding the establishment of a commercial fishery based on the island. She is currently the holder of three licences issued under the Fisheries Act 1988 (NT) namely a Barramundi Fishery Licence, a Development Fishery-Coast Net Licence and Mollusc Fishery Licence. It is unnecessary to specify in detail the particular rights conferred by these licences but rather it is sufficient to say that by reason of them Ms Henwood is entitled to undertake fishing activities within various parts of the subject waters.
It is said on Ms Henwood's behalf that she has two types of interests that bring her within the scope of s 84(2). First, she claims to have statutory interests arising out of her fishing licences and second, she claims native title rights. It is common cause that she has not made any application under the Act for a determination of her native title rights.
The applicants in the proceeding concede that Ms Henwood has, by reason of her fishing licences, commercial interests which may be affected by a determination of native title in respect of the subject waters and do not oppose her being joined as a party for the purpose of protecting those interests. Indeed, a number of companies and individuals engaged in commercial fishing in the subject waters are already parties to the proceeding. It is her claim to native title rights in the subject waters which has drawn opposition from the applicants.
The claim to native title rights is advanced on two bases. First, it is asserted by Ms Henwood that under the law, custom and tradition of the Wagait, should she find herself in the vicinity of Croker Island, she would be entitled to fish. Second, it is said that under the law, custom, tradition, observance and belief of the Aboriginal people of the Northern Territory she has an entitlement to fish in the waters surrounding Croker Island by virtue of her period of incarceration at the Methodist institution on that island. Both aspects of the submission raise difficult and novel questions as to the nature and extent of native title as recognised by the common law and as to the application of the definition of "native title" and "native title rights and interests" contained in s 223 of the Act, but it is unnecessary to go into those questions at this stage.
It is clear from the very nature of the claimed native title rights which are said may be affected by a determination in this proceeding that if those rights are to be the subject of consideration by the Court it would be necessary for the Court first to make a determination in respect thereof. However,
s 213(1) of the Act provides that if, for the purpose of any matter or proceeding before the Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures contained in the Act. The procedures in question do not admit of an application for
a determination of native title being made otherwise than pursuant to s 13 and Part 3 of the Act. In the absence of an application by Ms Henwood pursuant to s 61 and the lodging of such an application with the Court pursuant to s 74, the Court has no jurisdiction to make a determination in respect of her claimed native title rights.
In the circumstances, I am of the opinion that Ms Henwood is entitled, by reason of her commercial interests, to be joined as a party to the proceeding but that she is not entitled to plead or otherwise rely upon her claimed native title rights and interests in this proceeding. To give effect to this conclusion I order and direct as follows:
Pavalina Henwood be joined as a respondent to the proceeding.
On or before 8 April 1997 Pavalina Henwood file and serve a statement of facts and contentions particularising, but not limited to, the following:-
(1)Whether and if so to what extent she recognises the native title claimed by the applicants.
(2)The interests (other than her claimed native title interests) that she says may be affected by a determination of native title made in this proceeding.
(3)The manner in which she says that such interests will or may be affected by a determination of native title made in this proceeding.
The directions hearing be adjourned to 22 April 1997 at Croker Island.
Costs reserved.
I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated:
Heard: 21 March 1997
Place: Melbourne/Darwin by video link
Orders Made: 21 March 1997
Reasons published: 4 April 1997
Appearances:
Mr M. Storey (instructed by North Australian Aboriginal Legal Aid Service Incorporated) appeared for Ms Pavalina Henwood.
Mr R. Levy (instructed by Northern Land Council) appeared for the applicants in the proceeding.
Ms Sheila Begg (instructed by Solicitor for the Northern Territory) appeared for the Northern Territory of Australia.
Mr N. Henwood (instructed by Cridlands) appeared for the NT Fishing Industry Council and others.
Dr G. Griffith QC, Solicitor General for the Commonwealth (instructed by Australian Government Solicitor) appeared for the Commonwealth of Australia.
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