Gumana v Northern Territory of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 02 March 2007
• Neutral Citation: [2007] FCAFC 23
• Court: Full Federal Court (Australia)

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 v Secretary of State for Home Department; Ex parte Simms [2002] 2 AC 115 cited

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 cited

Anderson v Alnwick District Council [1993] 1 WLR 1156 cited

O’Neill v Mann (2000) 175 ALR 742 cited

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 cited

Lipohar v The Queen (1999) 200 CLR 485 cited

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 cited

Grant v Henry (1894) 21 R 358 cited

Northern Territory v Alyawarr (2005) 145 FCR 442 followed

Western Australia v Ward (2002) 213 CLR 1 cited

Mabo v Queensland (No 2) (1992) 175 CLR 1 cited

Western Australia v The Commonwealth (1995) 183 CLR 373 cited

Neowarra v Western Australia [2003] FCA 1402 considered

Sampi v Western Australia [2005] FCA 777 considered

De Rose v South Australia (No 2) (2005) 145 FCR 290 considered

Ward v Western Australia (1998) 159 ALR 483 considered

Western Australia v Ward (2000) 99 FCR 316 cited

Lardil Peoples v Queensland [2004] FCA 298 considered

Gumana v Northern Territory [2005] FCA 1425 cited

Gray and Gray, Elements of Land Law, 2.2 ff (4^th Ed 2005)

Megarry & Wade, The Law of Real Property, 3-041 ff (6^th Ed, 2000)

Bonyhady. The Law of the Countryside, Ch 8 (1987)

Butt, Land Law, Ch 2 (5^th Ed, 2006)

Perry & Lloyd, Australian Native Title Law (Law Book Co, 2003)

GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJ AND OTHER GROUPS) v NORTHERN TERRITORY OF AUSTRALIA, COMMONWEALTH OF AUSTRALIA, NORTHERN TERRITORY SEAFOOD COUNCIL INC AND ARNHEM LAND ABORIGINAL LAND TRUST

NTD 32 OF 2005

ARNHEM LAND ABORIGINAL LAND TRUST , NORTHERN LAND COUNCIL and GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJI AND OTHER GROUPS v NORTHERN TERRITORY OF AUSTRALIA, DIRECTOR OF FISHERIES (NT), NORTHERN TERRITORY SEAFOOD COUNCIL INC and COMMONWEALTH OF AUSTRALIA (Intervenor)

NTD 33 OF 2005

FRENCH, FINN & SUNDBERG JJ

2 MARCH 2007

PERTH (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 32 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJ AND OTHER GROUPS) Appellants
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent NORTHERN TERRITORY SEAFOOD COUNCIL INC Third Respondent ARNHEM LAND ABORIGINAL LAND TRUST Fourth Respondent

JUDGES:	FRENCH, FINN & SUNDBERG JJ
DATE OF ORDER:	2 MARCH 2007
WHERE MADE:	PERTH (HEARD IN DARWIN)

THE COURT ORDERS THAT:

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. The parties have leave to file submissions as to the costs of the appeal and cross-appeals within 14 days.

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	NTD 33 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ARNHEM LAND ABORIGINAL LAND TRUST First Appellant NORTHERN LAND COUNCIL Second Appellant GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJ AND OTHER GROUPS) Third Appellants
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent DIRECTOR OF FISHERIES (NT) Second Respondent NORTHERN TERRITORY SEAFOOD COUNCIL INC Third Respondent COMMONWEALTH OF AUSTRALIA Intervenor

JUDGES:	FRENCH, FINN & SUNDBERG JJ
DATE OF ORDER:	2 march 2007
WHERE MADE:	PERTH (HEARD IN DARWIN)

THE COURT ORDERS THAT:

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.

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

INDEX

Introduction	[1] - [14]
The Land Rights Appeal - grounds of appeal and contention	[15] - [18]
The Land Rights Appeal - background to the Land Rights Act	[19] - [34]
The Land Rights Appeal - statutory framework	[35] - [50]
The Land Rights Appeal - the issues at trial and their resolution	[51] - [60]
The Land Rights Appeal - revisiting the Full Court decision
in Yarmirr	[61] - [82]
The Land Rights Appeal - fee simple grants in the inter-tidal zone	[83] - [103]
The Land Rights Appeal - Conclusion	[104] - [105]
The Native Title Appeal - grounds of appeal, cross-appeal
and contention	[106] - [110]
The Native Title Appeal - statutory framework	[111] - [118]
The Native Title Appeal - section 47A and exclusive rights
in the inter-tidal zone	[119] - [134]
The Native Title Appeal - the spouses of clan members	[135] - [163]
The Commonwealth and Northern Territory cross appeals
- control of access as against other Aboriginal persons	[164] - [172]
Conclusion on the Native Title Appeal	[173]

IN THE FEDERAL COURT OF AUSTRALIA
northern territory district REGISTRY	NTD 32 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJ AND OTHER GROUPS) Appellants
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent NORTHERN TERRITORY SEAFOOD COUNCIL INC Third Respondent ARNHEM LAND ABORIGINAL LAND TRUST Fourth Respondent

IN THE FEDERAL COURT OF AUSTRALIA
northern territory DISTRICT REGISTRY	NTD 33 OF 2005

ON APPEAL FROM A...