Gumana v Northern Territory of Australia [2007] FCAFC 23

Gumana v Northern Territory of Australia [2007] FCAFC 23

A grant of fee simple to land in the inter-tidal zone under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) vests exclusive rights in the Arnhem Land Aboriginal Land Trust, including the right to exclude others, and abrogates public rights to fish and navigate absent other statutory provisions. The Fisheries Act 1988 (NT) cannot validly confer licensing authority in these areas. For native title, non-recognition at sovereignty of exclusive rights in the inter-tidal zone is not extinguishment to be disregarded under s 47A Native Title Act 1993 (Cth); spouses of clan members may be included as native title holders in a communal claim; but where there is non-exclusive...

Jurisdiction
Australia
Judgment Date
02 March 2007
Procedural Posture
Appeal / Post Trial Appellate Judgment From the Full Court on Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeals and cross-appeals varied in outcome: In NTD 32 of 2005 (Land Rights Appeal), appeal allowed: the Fisheries Act does not apply to inter-tidal areas subject to the grant. In NTD 33 of 2005 (Native Title Appeal), appeal dismissed; spouse cross-appeal dismissed; cross-appeals on right to control access allowed...
Legal Topics
['land Rights' 'native Title' 'public Fishing and Navigation Rights' 'statutory Construction' 'extinguishment of Native Title' 'permit Systems' 'fishery Licensing']
['aboriginal and Torres Strait Islander Law' 'property Law' 'administrative Law'] ['land Rights' 'native Title' 'public Fishing and Navigation Rights' 'statutory Construction' 'extinguishment of Native Title' 'permit Systems' 'fishery Licensing']

Case Brief

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Procedural Posture

Appeal / Post Trial Appellate Judgment From the Full Court on Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether a grant of fee simple estate to a land trust under the Aboriginal Land Rights (Northern Territory) Act 1976 confers exclusive possession including in the intertidal zone' 'Whether public rights to fish and navigate in the intertidal zone survive such a grant' 'Whether the Fisheries Act 1988 (NT) applies to the intertidal zone over Aboriginal land and can authorise the Director of Fisheries to issue licences there' 'Whether non-recognition at sovereignty of exclusive rights in the intertidal zone is extinguishment for the purposes of s 47A Native Title Act 1993 (Cth)' 'Whether spouses of clan members are native title holders' 'Whether native title holders can control access by other Aboriginal people where there is non-exclusive possession']

Ratio Decidendi

A grant of fee simple to land in the inter-tidal zone under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) vests exclusive rights in the Arnhem Land Aboriginal Land Trust, including the right to exclude others, and abrogates public rights to fish and navigate absent other statutory provisions. The Fisheries Act 1988 (NT) cannot validly confer licensing authority in these areas. For native title, non-recognition at sovereignty of exclusive rights in the inter-tidal zone is not extinguishment to be disregarded under s 47A Native Title Act 1993 (Cth); spouses of clan members may be included as native title holders in a communal claim; but where there is non-exclusive...

Court Disposition

Appeals and cross-appeals varied in outcome: In NTD 32 of 2005 (Land Rights Appeal), appeal allowed: the Fisheries Act does not apply to inter-tidal areas subject to the grant. In NTD 33 of 2005 (Native Title Appeal), appeal dismissed; spouse cross-appeal dismissed; cross-appeals on right to control access allowed...

Orders

  • ['NTD32 of 2005: Appeal allowed in part. Declaration that Fisheries Act 1988 (NT) has no application in areas within boundary lines of grant; does not confer licensing power; invalid where it purports to operate within grant area.' 'NTD32 of 2005: Appeal otherwise dismissed. Leave for submissions as to costs within...