Federal Court of Australia (French, Finn & Sundberg JJ)
2 March 2007
 FCAFC 23
Land Rights – grant of fee simple estate – effect of grant in the inter-tidal zone – whether exclusive possession vested by the grant – whether the grant excludes power of the Director of Fisheries to grant licences.
Native Title – existence of native title in the inter-tidal zone – extinguishment.
The Yolngu people are the traditional owners of parts of North-east Arnhem Land, which includes areas of Blue Mud Bay. Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘Land Rights Act’), the Commonwealth made grants to the Arnhem Land Aboriginal Land Trust (the Land Trust) recognising their ownership of land in a fee simple estate. This included ‘the land’ area of Blue Mud Bay. In 2002, the Yolngu filed an application for a native title determination to the waters and adjacent land of the Blue Mud Bay area (‘the Native Title Proceedings’).
At the same time, the Land Trust, the Northern Land Council and a number of traditional Yolngu owners also issued proceedings seeking a number of declarations (‘the Land Rights Proceedings’):
1) a declaration to the effect that the rights of the traditional owners to enter and occupy the land and waters covered by the grants were exclusive of all others;
2) a declaration that the Land Trust was entitled to prevent persons entering the relevant areas of land and waters to take fishing or aquatic resources.
3) declarations that the Fisheries Act 1988 (NT) (‘Fisheries Act’) did not confer on the Director of Fisheries a power to grant a licence under that Act to enter and take fish or aquatic resources from the areas of land and waters covered by the grants without the authority or permission of the traditional owners.
Both proceedings were heard jointly in the Federal Court in 2005 and handed down as Gumana v Northern Territory (2005) 141 FCR 457. Regarding the Land Rights Proceedings, Selway J held that the Land Rights Act and the grants made pursuant to it did not confer the right to exclude persons exercising public rights to fish or navigate in the inter-tidal zone or from those parts of the estuaries and navigable rivers where the waters are affected by the ebb or flow of the tide.
In the Native Title Proceedings, Mansfield J (proceeding from the reasons of Selway J) found that the traditional owners had the requisite degree of connection with the relevant land and water claimed, and possessed the rights and interests so claimed under their observance of traditional laws and customs. However, the relevant rights and interests held pertained only to the land above the high water mark, excluding rivers and estuaries subject to tides. Justice Mansfield held that under s 47A of the Native Title Act 1993 (Cth) (‘NTA’), the Court was not allowed to disregard non-recognition by the common law of the traditional owners’ exclusive right to occupy the inter-tidal zone by reason of the public rights to fish and navigate.
The Land Trust, the Northern Land Council and the traditional owners appealed against the decision in the Land Rights Proceedings, asserting that the Land Trust had exclusive possession of all of the areas subject to the grant, which included the inter-tidal zone, by virtue of the grants made under the Land Rights Act.The traditional owners also appealed against the decision in the Native Title Proceedings with respect to the findings regarding the effect of section 47A NTA on their claim to exclusive rights in the inter-tidal zone. The appellants submitted that the non-recognition of exclusive rights at common law was an extinguishment of native title rights and interests to be disregarded pursuant to section 47A.
Held, allowing the Land Rights Appeal:
1. The Land Rights Act is the source of the authority to grant a fee simple estate, and it is presumed that the estate granted has the characteristics of such an estate under the general law unless it is modified by legislation: -, , : Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 compared.
2. The inter-tidal zone under the Land Grants Act is to be placed in the category of “land” and not “sea”: , , Risk v Northern Territory (2002) 210 CLR 392 210 CLR 392 considered.
3. A grant of an estate in fee simple to the low water mark under the Land Rights Act confers a right to exclude from the inter-tidal zone. This includes a right to exclude those seeking to exercise a public right to fish or to navigate: , , .
4. As a result, by virtue of the express limitation imposed by section 73(1) and section 74 of the Land Rights Act on the Northern Territory legislature, the Fisheries Act has to be read down under section 59 of the Interpretation Act 1978 (NT) so as not to have any application within the territory granted under the Land Rights Act, and not to authorise the grant of a licence to take fish in relation to the inter-tidal zone: -, , , .
Held, disallowing the Native Title Appeal:
5. The concept of extinguishment embodied in section 47A(2) NTA is premised on the existence of a right or interest ‘recognised’ and so existing at common law and therefore capable of being extinguished. Therefore, section 47A cannot overcome the common law’s non-recognition of native title rights and interests conferring exclusive possession in the sea or the inter-tidal zone: , , .
6. The approach taken by the courts in dealing with questions arising out of section 223(1) NTA (whether the rights and interests are ‘communal, group or individual’) and section 225(a) NTA (who the persons holding the ‘common or groups rights’ are) is a flexible one: , -, Ward v Western Australia (1998) 159 ALR 483, and Lardil Peoples v Queensland  FCA 298 considered.
7. However, a native title right that is inconsistent with the public’s right of access to the inter-tidal zone and outer waters for fishing and navigation is not recognised by the common law for the purposes of section 223(1)(c) of the NTA: , Commonwealth v Yarmirr (2001) 208 CLR 1 applied.