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Gumana v Northern Territory of Australia [2007] FCAFC 23

Category: Case Law
Binomial Name: Federal Court of Australia
Date: 2 March 2007
Sub Category:Case Law | Litigated Determination
Place:Northeast Arnhem Land, Gulf of Carpentaria
State/Country:Northern Territory, Australia
Alternative Names:
  • Blue Mud Bay
  • Subject Matter:Access | Aquaculture | Cultural Heritage | Fishing | Marine | Recognition of Native Title or Traditional Ownership
    Summary Information:
    Gumana v Northern Territory of Australia [2007] FCAFC 23

    Judges: French, Finn and Sundberg JJ

    The members of the Full Federal Court largely confirmed the findings and terms of the native title determination at first instance, however their Honours reconsidered the effect of the operation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA) on the operation of the Fisheries Act 1988 (NT) and the powers of the Director of Fisheries appointed pursuant to that legislation.

    The Court held that land vested in traditional Aboriginal owners pursuant to the ALRA includes the right to exclusive possession over both land and water, and therefore that fishing licences and permits granted by the Director do not authorise licence holders to enter areas vested in Aboriginal people pursuant to the ALRA unless the provisions of the ALRA (in particular those pertaining to the requirement to obtain the permission of traditional Aboriginal owners to enter and remain upon Aboriginal land) are also complied with.
    Detailed Information:
    The legal proceedings involved appeals against several aspects of the native title determination of the Federal Court at first instance in Gawirrin Gumana v Northern Territory of Australia (No. 2) [2005] FCA 50 (for further information on this case follow the link under 'References' below).

    The proceedings before the Full Court of the Federal Court consisted of two distinct elements, an appeal by the Traditional Owners against the terms of the native title determination, and concurrent proceedings instituted jointly by the Arnhem Land Aboriginal Land Trust, Northern Land Council and native title holders to ascertain the precise ambit of the rights and interests of the Traditional Owners of those parts of the claim area between the low and high water marks (the inter-tidal zone had already been restored to the ownership of the Traditional Owners pursuant to the ALRA as grants to areas of land adjacent to coastal waters made pursuant to that Act extend to the low water mark). The proceedings also involved a cross-appeal by the NT Government, Director of Fisheries, NT Seafood Council Inc. and Commonwealth Government against the terms of the native title determination.

    The detailed arguments of the applicants before the Full Federal Court consisted of two grounds. First, that the grants made under the ALRA conferred exclusive possession on the holders of the title, and this included the right to exclude persons from entering sea areas, including the inter-tidal zone for the purposes of fishing. As a result, the Director of Fisheries had no right to grant access to areas held under the ALRA, a right that was maintained exclusively by the holders of the title - the Arnhem Land Aboriginal Land Trust.

    Second, the appellants submitted that the court erred in finding that native title rights over the claimed area had been extinguished due to inconsistencies between public rights to fish and navigate the area at common law and the native title rights claimed by the appellants [para 106, [2007] FCAFC 23]. The appellants also contended that the Court erred in holding that their rights to exclude persons from sacred sites in waters of the sea in the determination area was not capable of recognition as a native title right [para 107, [2007] FCAFC 23].

    In a unanimous decision the Full Federal Court held that, in relation to the appeal under the ALRA, the appeal should be allowed. The Court stated that the Fisheries Act:

    '(a) has no application in relation to areas within the boundary lines described in the Deed of Grant ...;
    (b) does not confer on the ... [Director of Fisheries] 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.' [para 105, [2007] FCAFC 23]

    In relation to the appeal under the NTA, the Court dismissed the appeal, finding that:

    'the concept of extinguishment found in the NTA was premised on the existence of a Native Title right or interest that was recognised by the common law at sovereignty and so was subsequently able to be extinguished by the creation of an inconsistent right or interest by the new sovereign; and
    from the time of its reception in Australia, the common law recognised public interests to fish and navigate, thus never recognising an exclusive right to the territorial sea or the inter-tidal zones for Native Title holders'. (National Native Title Tribunal, Native Title Hot Spots)

    Therefore, 'exclusive' native title cannot exist in territorial waters, or in the inter-tidal zone, and no rights to exclude are conferred on native title holders who hold native title over water, including the right to hunt and fish. Freehold land held under the ALRA does, however, grant a right to exclude over both land and water.

    High Court Decision

    For a summary of the appeal to the High Court follow the link below which reads: 'Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors (2008) HCA 29'.

    Related Entries

    Case Law
  • Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors (2008) HCA 29 (Blue Mud Bay Case)
  • Gawirrin Gumana v Northern Territory of Australia (No. 2) [2005] FCA 50

  • Glossary

    Aboriginal Land Trust (Northern Territory) (Australia) | Litigated Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Traditional Owner Group (Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)) (Australia)

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