FEDERAL COURT OF AUSTRALIA

Gawirrin Gumana v Northern Territory of Australia (No 2)

[2005] FCA 1425

SUMMARY

MANSFIELD J

11 OCTOBER 2005 (SUMMARY 11 OCTOBER 2005)

YILPARA

1                     The principal claim under the Native Title Act 1993 in these matters is for a determination of native title in respect of an area in and around Blue Mud Bay in coastal remote East Arnhem Land, northwest of Groote Island.  The second claim involved a challenge to the power of the Northern Territory to issue commercial fishing licences in relation to the inter-tidal zone of Aboriginal land.  The matters were heard together by Justice Selway, and his Honour delivered reasons for judgment on 7 February 2005.

2                     Justice Selway decided that there should be a grant of native title to the claimants over the claim area.  The grant of native title was:

(a)                to be for a right of exclusive possession over that part of the claim area other than the sea and the inter-tidal zone, that is the area of the foreshore between the high water mark and the low water mark and the area of rivers, streams and estuaries affected by the ebb and flow of the tides, and

(b)               to be for rights associated with non-exclusive possession over the inter-tidal zone and the adjacent sea.

He did not consider it appropriate to make any order to the effect that the Northern Territory had no power to issue commercial fishing licences in relation to the inter-tidal zone of Aboriginal land.

3                     The claim area is part of the area of two land grants to the Arnhem Land Aboriginal Land Trust made under the Aboriginal Land Rights (Northern Territory) Act 1976.  Justice Selway was asked to decide whether the traditional owners of Blue Mud Bay could exclude fishermen and others from the inter-tidal zone in the areas of those land grants, which were made to the low water mark.  By reason of an earlier decision of the Full Court of the Federal Court in Commonwealth v Yarmirr (1999) 101 FCR 171, he decided he was bound to conclude that the land grants did not have that effect.  Consequently, the grant of native title he proposed in respect of the inter-tidal zone was for non-exclusive native title rights.

4                     Before final orders were made, sadly Justice Selway died.  Justice Mansfield, with the consent of the parties, has completed the hearing for the purposes of making a determination of native title to reflect the reasons for judgment of Justice Selway.

5                     For that purpose, the parties consulted regarding the appropriate form for the determination of native title.  They reached substantial agreement.  The native title rights in respect of the land and inland waters are those which, under the traditional laws and customs, involve their possession, occupation, use and enjoyment to the exclusion of all others.  The non-exclusive native title rights in the inter-tidal zone include the rights to hunt, fish, gather and use resources for the purposes allowed by traditional laws and customs and to access the area for religious, spiritual and cultural purposes.  A full description of those rights is contained in Order 7 of the determination.

6                     There were a number of matters upon which the parties made further submissions, including:

(1)        whether the public right to fish extended to non-navigable sections of the inter-tidal zone, so that non-exclusive native title rights only could be exercised in those areas;

(2)        the extent of the native title rights to trade in the resources of the inter-tidal zone;

(3)        the extent of the native title rights to control or regulate access to particular parts of the inter-tidal zone;

(4)        the manner of expressing the other interests in the claim area, required to be described in the determination by s 225 of the Native Title Act; and

(5)        how the rights of those holding fishing licences under the Fisheries Act 1988 should be referred to.

7                     The present judgment addresses those matters.  In doing so, it seeks to reflect or represent the outcome which flows from the reasons for decision of Justice Selway.

8                     The determination sets out in detail the fact that the claimants have succeeded in their claim for native title, and the nature and extent of their rights over both the land and inland waters, and the inter-tidal zone of the claim area.  It addresses each of those matters which the parties considered necessary to be further considered.  The determination of native title is the final outcome.

9                     The attitude of the parties to the hearing both before Justice Selway, and before Justice Mansfield, has meant that the extent of the disputes between them has been sensibly confined.  It has also meant that the length and costs of these proceedings have been very much less than they might otherwise have been.  All parties are to be congratulated for their robust and sensible approach.

10                  In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, this summary has been prepared to accompany the orders made today.  This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court.  The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at http://www.fedcourt.gov.au together with this summary.