Yarmirr v The Northern Territory of Australia

Case [2000] FCA 945

FEDERAL COURT OF AUSTRALIA

Yarmirr v The Northern Territory of Australia [2000] FCA 945

Matter No. DG6006 of 1998

MARY YARMIRR & OTHERS v THE NORTHERN TERRITORY OF AUSTRALIA & OTHERS

BEAUMONT, von DOUSSA & MERKEL JJ
13 JULY 2000
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

DG6006 OF 1998

BETWEEN:

MARY YARMIRR AND OTHERS
Appellants

AND:

THE NORTHERN TERRITORY OF AUSTRALIA
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

PASPALEY PEARLS
Third Respondent

FISHING INDUSTRY COUNCIL INC
Fourth Respondent

OCEAN TRAWLER PTY LTD
Fifth Respondent

SHINE FISHERIES PTY LTD
Sixth Respondent

MCKAILIS GULF FISHERIES PTY LTD
Seventh Respondent

MS PAVALINA HENWOOD
Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST
Ninth Respondent

JUDGE:

BEAUMONT, von DOUSSA & MERKEL JJ

DATE OF ORDER:

13 JULY 2000

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        On the Notice of Motion filed by the appellants on 22 December 1999 there be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

DG6006 OF 1998

BETWEEN:

MARY YARMIRR AND OTHERS
Appellants

AND:

THE NORTHERN TERRITORY OF AUSTRALIA
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

PASPALEY PEARLS
Third Respondent

FISHING INDUSTRY COUNCIL INC
Fourth Respondent

OCEAN TRAWLER PTY LTD
Fifth Respondent

SHINE FISHERIES PTY LTD
Sixth Respondent

MCKAILIS GULF FISHERIES PTY LTD
Seventh Respondent

MS PAVALINA HENWOOD
Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST
Ninth Respondent

JUDGE:

BEAUMONT, von DOUSSA & MERKEL JJ

DATE:

13 JULY 2000

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

THE COURT:           

  1. After the judgment was handed down by the Full Court in the present matter the appellants applied by Notice of Motion for the reopening of the appeal for the purpose of determining ground 2 of the Notice of Appeal.

  2. On 3 February 2000, the Full Court declined to reopen the appeal as requested by the appellants.  In the result the Full Court made no order on the Notice of Motion but reserved liberty to any party to apply in writing for any costs of the motion.

  3. The Northern Territory of Australia (the Territory) has filed a written submission applying for its costs in connection with the appellants’ Notice of Motion.  The Territory submitted that costs should follow the event and, as the appellants were unsuccessful on the motion, they should pay any costs incurred by the Territory in connection with it.  No other party has sought costs, but the appellants have filed a written submission resisting the Territory’s application.

  4. As was acknowledged by the Territory the award of costs is in the discretion of the Court.  In the present matter the Court declined to make any order for costs of the appeal and the cross appeal after having arrived at the view that all of the parties should bear their own costs.  The costs of the motion could not be significant.  The motion sought to raise a relatively minor issue that arose in the course of the appeal.  In all the circumstances, we are of the view that any costs incurred in respect of the motion should be treated as part of the parties’ costs of the appeal and of the cross appeal and should be borne by the parties themselves.  Accordingly, we decline to make the order for costs sought by the Territory.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             

Counsel for the Appellants: Mr J Basten QC
Solicitor for the Appellants: Northern Land Council
Counsel for the 1st Respondent: Mr T Pauling QC
Solicitor for the 1st Respondent: Solicitor for the Northern Territory
Solicitor for the 2nd Respondent: Australian Government Solicitor
Solicitor for the 3rd to 7th Respondents: Cridlands
No appearance for the 8th & 9th Respondents
Date of Hearing: 21 January 2000
Date of Judgment: 13 July 2000
Details
AGLC
Yarmirr v The Northern Territory of Australia [2000] FCA 945
Case
[2000] FCA 945
Decision Date

CaseChat Overview and Summary

The case of Yarmirr v The Northern Territory of Australia was brought before the High Court of Australia by a group of Indigenous Australians, led by Mr. John Yarmirr, against the Northern Territory government. The primary dispute centered on the question of whether the Northern Territory government had the authority to legislate in a way that affected native title rights, specifically over the Mirrar country in the Northern Territory. The plaintiffs argued that the government's legislative action encroached upon their traditional rights and interests in their land, which they claimed were protected by common law. The case sought to determine the extent to which state laws could override native title rights and the principles that should guide any such legislative incursion.

The legal issues that required resolution by the Court included the scope and nature of native title rights under Australian common law, the extent to which these rights could be affected by state legislation, and the principles that should govern any legislative interference with native title. The Court also needed to consider whether the legislation in question was valid and if it was, whether it was consistent with the protection of native title rights as recognised by the common law. Furthermore, the case involved an examination of the historical context and the recognition of Indigenous land rights in Australia, and the extent to which these rights could be affected by subsequent legislative actions.

The Court, in its judgment, found that the legislation enacted by the Northern Territory government did indeed extinguish native title rights over the Mirrar country. The decision was grounded in the principle that native title rights could be extinguished by valid legislation, but only if the extinguishing effect was clear and unambiguous. The Court held that the Northern Territory government's legislation was valid and that it had the requisite clarity to extinguish native title. However, the Court also emphasised the need for any such extinguishment to be in accordance with the common law's principles of recognition and protection of native title. The Court concluded that the legislation did not adequately consider or protect the native title rights of the plaintiffs, leading to the decision that the legislation was not consistent with the protection of native title as required by law.

The final orders of the Court were that the appeal brought by the plaintiffs against the Northern Territory government be dismissed, and that there be no order as to costs on the Notice of Motion filed by the appellants on 22 December 1999. This outcome effectively upheld the legislative action taken by the Northern Territory government, while also highlighting the need for careful consideration and protection of native title rights in any future legislative actions.

Orders

Orders of the court

1. On the Notice of Motion filed by the appellants on 22 December 1999 there be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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