Gawirrin Gumana v Northern Territory of Australia (No. 2)  FCA 50
|Category: ||Case Law|
|Date: ||7 February 2005|
|Sub Category:||Litigated Determination|
|Place:||Northeast Arnhem Land, Gulf of Carpentaria|
|State/Country:||Northern Territory, Australia|
|Alternative Names:||Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors (2008) HCA 29|
Gawirrin Gumana v Northern Territory of Australia (No. 2)  FCA 1425
Gawirrin Gumana v Northern Territory of Australia (No. 1) (2005) 141 FCR 457
Blue Mud Bay
|Subject Matter:||Access | Cultural Heritage | Fishing | Marine | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|Summary Information: |
|Gumana v Northern Territory of Australia  FC 50
Between: Gawirrin Gumana, Djambawa Marawili, Marrirra Marawili, Nuwandjali Marawili, Daymambi Mununggurr, Manman Wirrpanda and Dhukal Wirrpanda on behalf of the Yarrwidi Gumatj Manggalili, Gumana Dhalwangu, Wunungmurra (Gurrumuru) Dhalwangu, Dhupuditj Dhalwangu, Munyuku, Yithuwa Madarrpa, Gupa Djapu, Dhudi Djapu, Marrakula 1, Marrakula 2, Wanawalakuymirr Marrakulu, Djarrwark 1, Djarrwark 2 and Nurrurawu Dhapuyngu (Dhurili/Dhurila) Groups (APPLICANTS);
Northern Territory of Australia, Commonwealth of Australia, Northern Territory Seafood Council Inc, Arnhem Land Aboriginal Trust, Telstra Corporation Ltd (RESPONDENTS).
Judge: Mansfield J
Where made: Yilpara, Northern Territory.
Decision: 'Exclusive’ native title cannot exist in territorial waters, or in the inter-tidal zone, and no rights to exclude others are conferred on native title holders who hold native title over water, including the right to hunt and fish. |
|Detailed Information: |
In 1980, grants were made under the Aboriginal Land Rights (Northern Territory) Act 1976 (NT) to the Yolngu people over areas including Blue Mud Bay, approximately 200km south of Yirrkala in the Northern Territory. In November 2002, the Yolngu lodged a claim under the Native Title Act 1993 (Cth) (NTA) over the Blue Mud Bay area.
The claim area covered:
'(a) Land and waters above the high water mark of the foreshore of the coastlines of Jalma, Grindall and Myaoola bays and of Round Hill Island within the bounded lines, including rivers, streams and estuaries that are not affected by the ebb and the flow of the tides;
(b) Land and waters of the foreshore of the coastlines of Jjalma, Grindall and Myaoola Bays and of Round Hill Island within the bounded lines that are between the low water mark boundaries of the deeds of grant referred to at 3 and the high water mark generally parallel or adjacent to those boundaries;
(c) Land and waters of rivers, streams and estuaries intersecting the coastlines of Jalma, Grindall and Myaoola bays within the bounded lines landward of the low water mark boundaries of the deeds of grant that are affected by the ebb and flow of the tides; and
(d) Waters and seabed adjoining and seaward of the low water mark boundary lines of the deeds of grant and within the outer seaward bounded lines of the determination area drawn across the bights of Grindall Bay and Myaoola Bay' (para 1,  FCA 1425).
The native title application claimed native title rights over areas of water that flowed over, and adjacent to, the areas held under the ALRA. The trial was initially conducted by his Honour Justice Selway (Gumana v Northern Territory (No. 1) (2005) 141 FCR 457). However, his death in 2004 before he was able to make final orders meant that his reasons were given full effect by Justice Mansfield (Gumana v Northern Territory (No. 2)  FCA 50).
The native title determination
Selway J held that traditional owners have exclusive native title rights over the majority of the land claimed, much of which was already held under the ALRA.
The native title holders are the Yolngu people and include:
'(a) members of one of the 15 Yirritja and Dhuwa moiety clans by virtue of descent through their father’s father;
(b) those with kinship connections to one or more of those clans through their mother (ngandi) or mother’s mother (mari);
(c) spouses of any of the above people; and
(d) those with non-descent based connections to parts of the determination area, including by virtue of their spirit conception being in the determination area; being a person who is a member of a clan which has estates adjacent to the determination area and who has kinship or marriage ties with one of the 15 above mentioned clans; having spiritual (wangarr) affiliations or ritual authority in the determination area; and being a member of clans known as Ngaymil, Datiwuy, Guyula Djambarrpuyngu and Marrangu who are at times entitled to perform ceremony at ringgitj places in the determination area.' (para 1.3  FCA 1425)
The decision provided clarification on the nature of native title rights over areas of water, holding that native title rights to hunt and fish for cultural purposes were recognised by the common law, but that these rights did not amount to a right to exclude others from fishing in the areas. Neither the native title held over the area, nor under the ALRA grant ‘confer the right to exclude persons exercising public rights to fish in the inter-tidal zone’ (NNTT, Native Title Hot Spots).
The native title rights found to exist over land and all inland waters not affected by the tide, are 'rights of exclusive possession: that is, the right to possess, use, occupy and enjoy the area to the exclusion of all others. While native title holders do not have the exclusive right to ‘own’ the waters in this area, they do have the exclusive right to control access to these waters' (para 40  FCA 1425).
In the inter-tidal zone and outer waters (whether navigable or not), the native title rights found to exist are:
the right to hunt, fish, gather and use resources within the area (including the right to hunt and take turtle and dugong) for non-commercial purposes;
the right to access, use, travel over and visit any part of the area for any purpose allowed under traditional laws and customs; and
the right to make decisions about access to and use of the area by Aboriginal people who recognise themselves as governed by traditional laws and customs.
These rights are non-exclusive, and are subject to other rights and interests including those held by holders of fishing licences; the rights of members of the public to navigate and fish; the interests of Arnhem Land Aboriginal Land Trust under two deeds of grant dated 30 May 1980; and the holders of permits granted under the Aboriginal Land Act 1978 (NT). These other rights and interests prevail over the native title rights but do not extinguish them.
The native title in relation to this area is not to be held on trust.
Appeal to the Full Court of the Federal Court
For a summary of the appeal heard by the Full Federal Court follow the link below which reads: 'Gumana v Northern Territory of Australia'  FCAFC 23.
Appeal to the High Court
For a summary of the appeal heard by the High Court follow the link below which reads: 'Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors (2008) HCA 29'.|