Gumana v Northern Territory of Australia

Federal Court of Australia (Full Court)|2007-07-01

Introduction [1] - [14]

The Land Rights Appeal - grounds of appeal and contention [15] - [18]

The Land Rights Appeal - background to the Land Rights Act [19] - [34]

The Land Rights Appeal - the issues at trial and their resolution [51] - [60]

The Land Rights Appeal - revisiting the Full Court decision in Yarmirr [61] - [82]

The Land Rights Appeal - fee simple grants in the inter-tidal zone [83] - [103]

The Land Rights Appeal - Conclusion [104] - [105]

The Native Title Appeal - grounds of appeal, cross-appeal and contention [106] - [110]

The Native Title Appeal - statutory framework [111] - [118]

The Native Title Appeal - section 47A and exclusive rights in the inter-tidal zone [119] - [134]

The Native Title Appeal - the spouses of clan members [135] - [163]

The Commonwealth and Northern Territory cross appeals

control of access as against other Aboriginal persons [164] - [172]

Conclusion on the Native Title Appeal [173]

northern territory district REGISTRY NTD 32 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJ AND OTHER GROUPS)

northern territory DISTRICT REGISTRY NTD 33 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJ AND OTHER GROUPS)

REASONS FOR JUDGMENT Introduction 1 The Yolngu people are the traditional owners of parts of north-east Arnhem land, including areas of Blue Mud Bay. Their ownership was recognised on 30 May 1980 by grants to the Arnhem Land Aboriginal Land Trust (the Land Trust) of land in fee simple including "the land" area of Blue Mud Bay. The grants were made by the Commonwealth under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)(Land Rights Act). 2 In the 1990's the Yolngu asserted rights and interests in the inter-tidal areas of Blue Mud Bay. Proceedings were instituted against the Northern Territory and its Director of Fisheries in 1997 seeking declarations that he did not have the power to issue fishing licences in the tidal waters covered by the grants. In 1998 the Yolngu filed an application for a native title determination in the waters and adjacent land. 3 The proceedings against the Director of Fisheries and the Northern Territory progressed to the hearing and determination of certain preliminary questions but the Full Court found on appeal that materials before the Court at first instance were insufficient to answer the questions posed. In so finding, the Full Court doubted that the grants under the Land Rights Act conferred a right on the Land Trust, on behalf of the Yolngu, to exclude the public from fishing in the waters covered by the grants: Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 at 525-526 (Land Trust Case FC). 4 The Land Trust, the Northern Land Council and a number of traditional Yolngu owners issued fresh proceedings in 2002 under the Judiciary Act 1903 (Cth) (the Land Rights Proceedings). They sought 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. They also sought 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. Other declarations claimed were that the Fisheries Act 1988 (NT) (Fisheries Act) did not affect the exclusive entitlements of the traditional owners and did not, and could 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. It was contended that the Fisheries Actis invalid insofar as it relates to waters seaward of and adjoining, and within two kilometres of, the boundary lines described in the grants. 5 A new native title determination application was filed in 2002 covering a smaller area than that covered by the 1988 application (the Native Title Proceedings). The new claim area lay in the northern part of Blue Mud Bay comprising Myaoola Bay, Grindall Bay and the shores of the eastern side of Jalma Bay together with adjacent lands. The area does not comprise all the traditional lands of all of the claimant clans. It was common ground that it had been defined to enable the traditional owners to test the issues that they wanted to have resolved in the proceedings generally. 6 The Land Rights Proceedings and the Native Title Proceedings were heard together by Selway J between August and November 2004. His Honour delivered judgment on 7 February 2005: Gumana v Northern Territory (2005) 141 FCR 457. In the Land Rights Proceedings his Honour held that the general declarations sought about the nature and extent of rights conferred by grants under the Land Rights Act did not give rise to a matter within the meaning of ss 75 and 76 of the Constitution. The specific declarations sought as to the operation of the Fisheries Act did give rise to a justiciable matter. 7 His Honour held that the Land Rights Act and the grants made pursuant to it gave the Land Trust an estate in fee simple to the low water mark. This did not, however, 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. No such exclusion flowed from s 70 of the Land Rights Act. His Honour held that the grants made under the Land Rights Act operated subject to public rights to fish. The Fisheries Act was capable of operating concurrently with the Land Rights Act and could validly authorise the grant of fishing licences within two kilometres of the low water mark. 8 In the Native Title Proceedings his Honour found that the rights and interests claimed by the traditional owners were possessed under the traditional laws and customs acknowledged and observed by them and that by virtue of those laws and customs they had a connection with the relevant land or water. The relevant rights and interests were recognised by the common law at annexation in so far as they applied to land above the high water mark excluding rivers and estuaries subject to tides. The traditional owners' exclusive rights to occupy the area seaward of the low water mark were not recognised by the common law because they were inconsistent with public rights to fish and to navigate. The same conclusion followed in relation to the inter-tidal zone. His Honour held that s 47A of the Native Title Act 1993 (Cth) (Native Title Act)was valid and applied to the land grant. It allowed the Court to disregard the extinguishing effects of the land grants. It did not permit the Court 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. 9 His Honour declined to make any of the declarations sought in the Land Rights Proceedings. He was prepared to make a determination of native title in the Native Title Proceedings. Each of the applications was adjourned to enable the parties to make submissions as to the appropriate terms of final orders. The question of costs was reserved. Sadly, his Honour died on 10 April 2005. With the consent of the parties, Mansfield J completed the hearing for the purpose of making final orders in both proceedings. It was common ground that his Honour should proceed from the reasons for judgment of Selway J given on 7 February 2005 and should give full effect to them. 10 In the final orders which he made on 11 October 2005, Mansfield J gave leave to amend the application in the Land Rights Proceedings by the insertion of an additional claimed declaration. He then dismissed the application as so amended. The parties were to bear their own costs of the proceedings. In the Native Title Proceedings, his Honour made a determination of native title which was set out in the order. A copy of that determination is the annexure to these reasons. 11 The Land Trust, the Northern Land Council and the traditional owners appealed against the decision in the Land Rights Proceedings asserting, inter alia, that, by virtue of the grantsmade under the Land Rights Act, the Land Trust had exclusive possession of all of the areas subject to the grant. These included the inter-tidal zone defined as: (a) the foreshore of the seacoast and of islands between the high water mark and low water mark; and (b) those parts of rivers, streams and estuaries affected by the ebb and the flow of the tides. The Commonwealth as intervener in the Land Rights Proceedings filed a notice of contention seeking to affirm the Court's decision on grounds other than those relied upon by the Court. The Northern Territory and the Director of Fisheries also filed a notice of contention which asserted that the grants of fee simple estates under the Land Rights Act did not include waters overlying the area the subject of the grants. 12 The traditional owners, as claimants in the Native Title Proceedings, appealed against his Honour's findings about the effect of the Land Rights Act grants, the effect of s 47A of the Native Title Act on their claim to exclusive rights in the inter-tidal zone and the protection of certain sacred sites in waters in the determination area (Djalkiri). The Commonwealth cross-appealed against aspects of the native title determination relating to the way in which the native title holders were specified and the nature and extent of native title rights in the determination area. It sought the exclusion, from the determination, of spouses of clan members and the removal of a native title right to control access of other Aboriginal persons into the inter-tidal zone and outer waters. The Commonwealth also filed a "Supplementary Notice of Contention" in which it contended that subject to the points raised in its cross-appeal, the judgment appealed from should be affirmed on grounds other than those relied upon at first instance. These concerned the coverage of the Land Rights Act grants, the qualification of the Land Rights Act grants by the public rights to fish and navigate, the effect of s 70 of the Land Rights Act, the validity of the Fisheries Act and licences granted under it and the non-application of s 47A to tidal waters within the outer boundaries of the Land Rights Act grants. In addition the Commonwealth asserted that s 47A does not apply to the inter-tidal zone because the native title holders do not "occupy it" for the purposes of s 47A(1)(c). The Northern Territory filed a cross-appeal. It also filed a notice of contention relating to the coverage of the grants and the application of s 47A. The grounds of appeal and contention are referred to in more detail below. Some were abandoned. The traditional owners abandoned the ground of appeal relating to sacred sites. The Commonwealth abandoned its grounds of appeal relating to the specification of native title rights and interests and the definition of the native title holders in the determination. 13 The issues raised in these appeals are:

The Land Rights Appeal: 1.1 whether the grant of an estate in fee simple to the Land Trust under the Land Rights Act conferred a right of exclusive possession to the inter-tidal zone; 1.2 whether the Fisheries Act authorises the Director of Fisheries (NT) to grant licences under the Act to fish in the inter-tidal zone which is subject to the grant to the Land Trust. 2. The Native Title Appeal: 2.1 whether the absence, from the time of sovereignty, of any recognition by the common law of a right of exclusive possession of the inter-tidal zone is an extinguishment of native title rights and interests and is to be disregarded where s 47A applies to the relevant area; 2.2 whether the spouses of clan members, by reason of their spousal relationship, can be included in the native title holders' group identified in the native title determination; 2.3 whether despite the absence of an exclusive right of possession of the inter-tidal zone the native title holders can control access to it by Aboriginal people who recognise themselves as governed by the traditional laws and customs acknowledged and observed by the native title holders. 14 For the reasons that follow the Court is of the view that the Land Rights Appeal succeeds but the Native Title Appeal fails. The cross-appeals on the Native Title Appeal succeed to the extent that the right to control access to the inter-tidal zone by other Aboriginal people is to be removed from the Determination. The Land Rights Appeal - grounds of appeal and contention 15 The notice of appeal in the Land Rights Proceedings contained two grounds. In summary, the first ground was that the Court erred in holding that: (1) The Land Trust, as holder of the estates in fee simple granted under the Land Rights Act, has a right of exclusive possession in all areas subject to the grants including the intertidal zone which comprises: (a) the foreshore of the sea coast and of islands between the high water and low water marks; and (b) the parts of rivers, streams and estuaries affected by the ebb and flow of the tide. (2) Section 70 of the Land Rights Act precludes persons from entering the areas the subject of the grants, including the intertidal zone, other than in circumstances permitted by s 70 and by the Aboriginal Land Act 1978 (NT) made under s 73(1)(b) of the Land Rights Act. (3) Licences or permissions to take fish and aquatic life from areas subject to the grants, including the intertidal zone, is, for the purposes of s 19 of the Land Rights Act, an estate or interest in land held by the Land Trust that may only be granted by the Land Trust and in the circumstances permitted by the Land Rights Act. (4) As a consequence of the preceding propositions: (a) the Director of Fisheries (NT) has no power to grant licences under the Fisheries Act 1988 (NT) that authorised licensees to take fish and aquatic life from areas subject to the grants including the intertidal zone; (b) the rights of the public to: (i) fish, other than pursuant to a licence granted under the Fisheries Act 1988 to the extent permitted by that Act; and (ii) navigate the waters of the intertidal zone have no application in relation to areas subject to the grant including the intertidal zone. 16 The second ground asserted that the Court erred in relying upon what was said by the Full Court in Commonwealth v Yarmirr (2000) 101 FCR 171 (Yarmirr FC) to reach conclusions contrary to those advanced in the first ground of appeal. If the Full Court so held in Yarmirr FC then its decision was to that extent wrong and should not be followed. And if the Full Court in Yarmirr FC had decided the matters relied upon by Selway J, a fishing licence is, for the purposes of the Land Rights Act, an estate or interest in respect of land and the Land Rights Act prescribes the circumstances in which such an estate or interest may be granted by the Land Trust as owner of the relevant fee simple estate. On this basis it was contended that the grant of a licence under the Fisheries Act in the inter-tidal zone affected by the grant to the Land Trust would be inconsistent with the Land Rights Act and that the Fisheries Act properly construed did not authorise the grant of licences to take fish and aquatic life and had no application in relation to areas subject to the grants, including the inter-tidal zone. 17 The Commonwealth's notice of contention involved the following propositions:

The Commonwealth also asserted that the rights conferred by the Land Rights Act grants were subject to and qualified by public rights to fish and navigate. It contended that s 70 of the Land Rights Act does not prohibit the exercise of fishing or navigation rights in the tidal areas within the outer boundaries of the grants and that the Fisheries Actand licences granted under it are valid and apply to waters within the outer boundaries of the grants. 18 The Northern Territory and its Director of Fisheries, by their notice of contention, asserted that the grant of fee simple estates under the Land Rights Act does not include waters overlying the area the subject of the grants. The Land Rights Appeal - background to the Land Rights Act 19 The land of Blue Mud Bay formed part of the Arnhem Land Reserve, a Reserve created in 1931 "for the use and benefit of Aboriginal native inhabitants" under the Crown Lands Ordinance 1927 (NT). That Reserve was resumed and replaced by a consolidated Reserve in 1963. The Proclamation for this Reserve identified the boundaries of it by reference to the low water marks of various rivers and of the Timor or Arafura Seas. The description of the reserved lands utilised straight lines to join the extremities of the banks of rivers, streams and estuaries. In so doing the proclamation included the inter-tidal zone of those rivers etc, in the Reserve's lands: see generally the Land Trust Case FC 109 FCR at [33]-[40]. 20 Successive legislative measures were taken from the proclamation of the original Reserve to control access to it and to those areas which were added to or replaced it, by persons other than Aboriginals: see e.g. Aboriginals Ordinance 1918 (NT), ss 3 and 19. The significance of such measures, presently reflected in s 70 of the Land Rights Act, is considered later in these reasons. 21 Following the unsuccessful attempt of the traditional owners to restrain proposed bauxite mining and treatment in areas of Arnhem Land in the Gove Peninsula: see Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141; the Commonwealth Government established what became known as the Woodward Commission to report on appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to land and otherwise to satisfy their reasonable aspirations to rights in or in relation to land. The two reports of the Commission resulted in the Land Rights Act. The relationship of these reports to the Act has been commented upon at some length in a number of cases, most notably in the Land Trust Case FC, at [46]-[64] and Risk v Northern Territory (2002) 210 CLR 392 at [43]-[46], [83]-[86] and [102]. It is unnecessary to do so again here. However we would note the following as it provides some context for the provisions of the Land Rights Act with which we are concerned. 22 Firstly, in his First Report Woodward J noted that a number of Aboriginal communities in the north had raised questions of fishing rights. He noted ([205]): It seems clear that Aboriginal clans generally regard estuaries, bays and waters immediately adjacent to the shore line as being part of their land. So also are the waters between the coastline and offshore islands belonging to the same clan. 23 Secondly, Woodward J returned to the issue of fisheries in his Second Report. He noted ([420]) that: Although there has been some doubt about the legal position in the past, the estuaries and tidal flats of Northern Territory Aboriginal reserves have been generally regarded as being part of the reserves and therefore out-of-bounds to commercial fishermen. The Report went on to indicate ([421]) that the Northern Land Council asked that "this principle be recognized" and extended and that an area stretching 12 miles seaward should be treated as part of Aboriginal land "for purposes of protection of land rights". The Commissioner then commented:

I accept that Aborigines make traditional claims to most, and probably all, off-shore islands. Their legends link those islands with the mainland because of the passage of mythical beings from one to the other. The effect of this is that the sea between also has significance. Certainly Aborigines generally regard estuaries, bays and waters immediately adjacent to the shore line as being part of their land. 423. However I am unable to endorse a claim to an area of sea as great as twelve miles from the coast. It seems to me that the legitimate interests of Aborigines will be protected if their traditional fishing rights are preserved and their right to the privacy of their land is clearly recognized by the establishment of a buffer zone of sea which cannot legally be entered by commercial fishermen or holiday makers. An exception would have to be made in cases of emergency. 424. To establish these principles some arbitrary figure has to be arrived at, which I have already suggested (para 91) might be two kilometres from low tide. Since all the fishing is done by netting or the use of hand-lines in comparatively shallow water, this should suffice for both the purposes to which I have referred. This Report had earlier recommended that the proclamations of reserves should describe them "by their boundaries" ([91]). 24 Thirdly, in the Second Report, Woodward J indicated he had "no doubt about the nature of the title which should be granted" in respect of lands held for the benefit of Aborigines. He regarded leasehold title as inadequate to satisfy the expectation of Aborigines ([70]). The title granted should be "communal and inalienable" ([71]). 25 Though the Commissioner had previously ventured the view that it might be appropriate to create a new form of statutory title to be called "Aboriginal Title", in the Second Report he acknowledged ([72]): … it is necessary to tread warily here. It is pointed out that if the title is expressed as being in fee simple, all the normal incidents of such title would be known. This would resolve any doubts about the applicability of the general law and facilitate any future dealing with the land, which may not be envisaged at present but which could be contemplated by later generations. The Commissioner returned to this theme ([101]) noting that the title he was proposing "would be merely fee simple subject to certain statutory qualifications" and "should generally be subject to the normal provisions of the law relating to freehold Land" ([102]). 26 Finally, in dealing with "Control of access to Aboriginal land", the Second Report noted ([109]) that "[o]ne of the most important proofs of genuine Aboriginal ownership of land will be the right to exclude from it those who are not welcome". Recognising the need both for a system of permits administered by Land Councils and traditional owners to allow persons to enter upon and remain on Aboriginal land and for provision for those cases where people have some overriding claim to enter Aboriginal land particularly where their duties require them to do so frequently, it was recommended ([144]): (xiii) Entry to Aboriginal land should be regulated by a permit system to be administered by the regional Land Councils, with provision for permits to be issued locally in some cases. (xiv) All Aborigines would be exempt from permit requirements. (xv) Persons having official duties to perform on Aboriginal land would be expected to obtain and carry permits as a matter of convenience but would not be guilty of an offence if they failed to do so. (xvi) There should be a further exemption to cover cases of emergency. 27 To anticipate matters these recommendations ultimately found their reflection in the permit systems erected in the Aboriginal Land Act 1978 (NT) (Land Act) and in s 70 and s 71 of the Land Rights Act. 28 The Second Report formed the basis for the Land Rights Act although its recommendations were not acted upon entirely. Significantly for present purposes the limited proposal the Commissioner was prepared to make for a "buffer zone" for waters within two kilometres seaward of low tide did not win legislative approval, although a provision to that effect was contained in the original Bill. In its stead the Northern Territory legislature was given qualified powers in s 73 of the Land Rights Act to make laws regulating entry of persons into waters of the sea "adjoining, and within, 2 kilometres of" Aboriginal land. This "legislative compromise": Risk 210 CLR at [87]; is considered further below: see [30]-[32]. 29 Though two land grants - one to what is described as "Arnhem Land (Mainland)", the other, to "Arnhem Land (Islands)" " - are in issue in the Land Rights Proceedings, there is no relevant difference between them for the purposes of this appeal. For ease in exposition we will consider only one of the two grants, though our reasons and orders apply to both. 30 The area of Blue Mud Bay was within the area described as the "Arnhem Land (Mainland)" in Sched 1 to the Land Rights Act. Upon the establishment of the first appellant, the Land Trust, a grant of the scheduled land in fee simple was made to it. The estate so granted was: … in ALL THAT land in the Northern Territory of Australia above a line along the low water mark with its boundary along the seacoast of the Van Diemen Gulf, the Arafura Sea and the Gulf of Carpentaria, but excluding from the said line those parts along the low water marks of all intersecting rivers, streams and estuaries inland from a straight line joining the seaward extremity of each of the opposite banks of each of the said rivers, streams and estuaries so that the aforesaid boundary line shall follow that part below low water mark of each of the aforesaid straight lines across each of the aforesaid rivers, streams and estuaries … being more particularly shown on Compiled Plan 4181. That grant, though, was "subject to the conditions, reservations and exceptions hereinafter contained". The Deed of Grant expressly excepted or excluded all of the lands described in Sched 1 to the Deed and designated roads, and it reserved particular rights to minerals to the Commonwealth and to the Northern Territory respectively. No public rights to fish or to navigate in tidal waters were so excepted or reserved in the Deed. 31 Though holding the land so granted "for the benefit of the Aboriginals concerned": Land Rights Act, s 5(1)(b); the Land Trust is obliged to act in accordance with directions given to it by the second appellant, the Northern Land Council: see s 5(2). Like the Land Trust: see s 4; that Council is a creature of the Land Rights Act: see s 21. Its functions include protecting the interests of traditional owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council. 32 Having become aware of fishing activities in the waters of Blue Mud Bay, the Land Trust instituted several proceedings in this Court. It is only necessary to refer to one of these (Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1) in which orders were sought that the Director of Fisheries (the second respondent in this appeal) lacked power to issue fishing licences in the tidal waters within the area of the land grant. Preliminary questions of law were agreed, though as the Full Court in that case later held, the facts before the trial judge in that case were insufficient for him to answer the agreed questions: Land Trust Case FC 109 FCR at 519-521. Nonetheless, Sackville J (with whom Spender and Merkel JJ agreed) set out at some length the rival contentions of the parties concerning whether public rights to fish in the inter-tidal zone survived a grant in fee simple under the Land Rights Act. Though deciding that it was inappropriate both to answer the agreed questions and to permit their amendment, his Honour did observe (at [156]): Without expressing a final view, I should indicate that, in my view, there are obstacles in the path of accepting the cross-appellants' contention that the grant of the fee simple estate to the Arnhem Land Trust, of itself, carried with it exclusive rights to fish in the Waters. That contention is not easy to reconcile with the legislative history of the Land Rights Act, which tends to suggest that the fee simple estate granted pursuant to s 12(1) carried 'all the normal incidents of such title' (to use the language of the Second Report: see [45] above). If that is correct, it would seem to follow that the Arnhem Land Trust's right to 'enjoy the exclusive right of fishing in [the Waters] or to grant such a right to another as a profit a prendre is qualified by the paramount right to fish vested in the public' (Harper v Minister for Sea Fisheries at 329, per Brennan J, with whom the other members of the Court agreed). See also Attorney-General (British Columbia) v Attorney-General (Canada) [1914] AC 153 at 170-171. I also think that there are difficulties with the contention that the 'scheme' of the Land Rights Act is to confer on the Arnhem Land Trust exclusive rights to the Waters [i.e. inter-tidal zone waters]. 33 No views were expressed by Sackville J on the correctness or otherwise of the Full Court's decision in Yarmirr FC 101 FCR 171. 34 Consequent upon the Full Court's decision in the Land Trust Case, the present proceeding (and its partner native title claim) were commenced.

The Land Rights Appeal - statutory framework 35 The scheme of the Land Rights Act for granting to a Land Trust an estate in fee simple to Crown lands described in Sched 1 of the Act (as is the present case) is that the relevant Minister shall recommend such a grant to the Governor-General: s 10(1); who may then execute a deed of grant of an estate in the land in accordance with the recommendation: s 12(1). For present purposes, the deed takes effect on the date on which it is delivered to the grantee. Section 12 prescribes that, as in the present case, a deed shall be expressed to be subject to specified reservations and exclusions. 36 It is important to note about this scheme that the fee simple estate granted under the Act was not itself a statutory creation. Rather the Act was the source of the authority to grant such an estate which, once granted, had the characteristics of a fee simple under the general law: cf the Land Trust Case FC 109 FCRat [118]; albeit subject to statutory modification by the Land Rights Act itself: Woodwood Commission Second Report, [101]; or by other legislation. 37 By way of illustration, s 19 of the Act markedly curtails the alienability of Land Trust land. Section 19(1) provides: Except as provided by this section or section 20, a Land Trust shall not deal with or dispose of, or agree to deal with or dispose of, any estate or interest in land vested in it. Subsection (4A) permits a Land Trust subject to specified conditions to grant an estate or interest in the land (including a licence in respect of it: s 19(11)), or of any part of it, to any person for any purpose with the consent in writing of the Minister and at the direction in writing of the relevant Land Council. 38 Section 71(1) secures to Aboriginals the benefit of traditional rights to enter, use or occupy Aboriginal lands. It provides: Subject to this section, an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor. (Emphasis added) We would note in passing that "Aboriginal tradition" is defined in s 3(1) of the Act, as for that matter are "traditional Aboriginal owners". 39 One of the two important provisions of the Land Rights Act for present purposes is s 70. It provides insofar as presently relevant that: 70 Entry etc on Aboriginal land (1) A person shall not enter or remain on Aboriginal land. Penalty: $1,000. (2) Where a person, other than a Land Trust, has an estate or interest in Aboriginal land: (a) a person is entitled to enter and remain on the land for any purpose that is necessary for the use or enjoyment of that estate or interest by the owner of the estate or interest; and (b) a law of the Northern Territory shall not authorize an entry or remaining on the land of a person if his or her presence on the land would interfere with the use or enjoyment of that estate or interest by the owner of the estate or interest. (2A) In proceedings for an offence against subsection (1), it is a defence if the person enters or remains on the land in performing functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory. Note: A defendant bears an evidential burden in relation to the matters in subsection (2A) (see subsection 13.3(3) of the Criminal Code). … (3) In proceedings for an offence against subsection (1), it is a defence if the person charged proves that his entry or remaining on the land was due to necessity. Subsection (4) permits a person to enter and cross Aboriginal land by a route agreed with the Land Council or in default agreement by an arbitrator appointed by the Minister where (a) that person has an estate or interest in land which that person is entitled to enter and remain upon and (b) there is no practicable way of gaining access to that land other than by crossing that Aboriginal land. 40 To anticipate a submission made by the Commonwealth, it is contended that the public rights to fish and to navigate would provide a defence to proceedings under s 70 in that the exercise of those rights would be "in accordance with … a law of the Northern Territory". 41 As earlier noted, s 70 is simply the current embodiment of a long standing legislative practice of proscribing unauthorised entry on Aboriginal lands/reserves: see Aboriginals Ordinance 1918 (NT) s 19; Welfare Ordinance 1953 (NT) ss 44 and 45; Social Welfare Ordinance 1964 (NT) s 17. For purposes of illustration, s 19 of the 1918 Ordinance provided: Any person (not being - (a) an aboriginal; or (b) the Administrator; or (c) the Chief Protector; or (d) a Protector; or (e) a Police Officer; or (f) an unauthorised officer) who enters or remains on a reserve for aboriginals shall be guilty of an offence against this Ordinance, unless his action was authorised by a Protector [of Aboriginals] or Police Officer, or was reasonably necessary for the protection of life or property. 42 We would note in passing that Selway J was of the view that the effect of the creation of the 1931 and 1963 Reserves in the context of the above Ordinances was to abrogate any public right to fish or navigate in the inter-tidal zone. 43 The second presently significant provision of the Land Rights Act is s 73 which, in part, represents what Gummow J described in Risk 210 CLRat [87] as the "legislative compromise" to Woodward J's recommendation of a two kilometre buffer zone seaward of the low water mark. It provides, insofar as presently relevant, that: 73 Reciprocal legislation of the Northern Territory (1) The power of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 in relation to the making of laws extend to the making of: … (b) laws regulating or authorizing the entry of persons on Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition; … (d) laws regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition; but any such law has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular, with this Act … (Emphasis added) 44 The legislative power so given in relation both to entry on Aboriginal land and the two kilometre buffer zone was exercised in the Land Act. That Act defined "land" for its purposes as having the same meaning as in the Land Rights Act. Part II of the Land Act controlled entry onto Aboriginal land. The central proposition of this Part was contained in s 4(1): Subject to this Part and to any provision to the contrary in a law of the Territory, a person shall not enter onto or remain on Aboriginal land or use a road unless he has been issued with a permit to do so in accordance with this Part. Penalty: $1,000. Then followed prescribed exemptions for Aboriginals: s 4(2) and (3); for members of Parliament and other designated persons: s 7; and a system for granting permits by Land Councils and traditional owners: s 5; and, for certain purposes, by the Administrator or the Minister: s 5A and s 6. Part III of this Act empowered the Administrator to close (s 12) and to re-open (s 13):

… the seas adjoining and within 2 kilometres of Aboriginal land to any persons or classes of person, or for any purpose other than to Aboriginals who are entitled by Aboriginal tradition to enter and use those seas and who enter and use those seas in accordance with Aboriginal tradition. The Part created a parallel offence of entry onto closed seas without a permit to do so: s 14; and erected a parallel system of permits to that applying to Aboriginal land: s 15. It has not been suggested in this appeal, and it does not appear to be the case in any event, that the provisions of this Act as they relate to entry upon "Aboriginal Land" need to be read down because they offend the legislative requirement of consistency with the Land Rights Act contained in s 73(1). 45 For the purposes of this appeal it is important to note that the s 73(1)(d) legislative power to prohibit entry and to control fishing relates to "waters adjoining" Aboriginal land. An issue in this appeal is whether "waters adjoining" comprehends "waters overlying" Aboriginal land (i.e. in the inter-tidal zone) or only waters beyond the boundary of (i.e. adjacent to) Aboriginal land. 46 The only earlier attempt to regulate or to proscribe entry by sea into an area adjacent to a reserve was s 19AA of the Aboriginals Ordinance 1918, a provision added to that Ordinance in 1937. Section 19AA(1) provided: Any person (not being the Administrator, the Chief Protector, a Protector, a Police Officer, an authorized officer or an aboriginal) who enters in a vessel the territorial waters adjacent to a reserve for aboriginals or is found in a vessel within such territorial waters shall be guilty of an offence against this Ordinance, unless he was authorized by a Protector or Police Officer to enter or be therein, or he satisfies a Protector or Police Officer that his entry or being therein was necessary for the protection of life. The Ordinance did not define "territorial waters". The resultant uncertainty in the reach of this provision was sharply criticised by Wells J in Haruo Kitakoka v Commonwealth (unreported, NT Supreme Court, No 14 of 1937) as reproduced in Haultain, Watch Off Arnhem Land, at 249 (Union Offset Co, Canberra, 1971). It was not re-enacted in successor legislation. 47 The important remaining provision of the Land Rights Act to be noted is s 74. It provides generally for what is provided specifically in s 73(1)(d): 74 Application of laws of Northern Territory to Aboriginal land This Act does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that that law is capable of operating concurrently with this Act. 48 The final piece of legislation to which reference needs be made is the Fisheries Act. Though empowered to enact this legislation in virtue of the provisions of s 6 of the Northern Territory (Self Government) Act 1978 (Cth) (Self Government Act) and of the Coastal Waters (Northern Territory Powers) Act 1980 (Cth), the Northern Territory Parliament was not thereby authorised to alter or repeal laws enacted by the Commonwealth Parliament. Significant for present purposes are both the proviso contained in s 73(1) and s 74 of the Land Rights Act which, as already noted, require Territory laws applying to Aboriginal land to be capable of operating concurrently with the Land Rights Act. 49 The Fisheries Act prohibits commercial fishing within the Northern Territory unless the person taking fish does so under and in accordance with an appropriate licence granted by the Director of Fisheries: s 10 and s 11. There is evidence in this proceeding that licences have been issued to fish to the high water mark in areas that could include the lands the subjects of the grants. 50 It is the appellants' case that because the Fisheries Act regime was not capable of operating concurrently with the grant made to the Land Trust of land to the low water mark, it must be read down accordingly so as to have no operation in the inter-tidal zone.

The Land Rights Appeal - the issues at trial and their resolution 51 Justice Selway identified the following as the principal issues in the Land Rights Act proceeding (Gumana 141 FCR at [44]): (a) Do all of the issues raised in the Judiciary Act proceedings raise a 'matter' for the purposes of Ch III of the Constitution? (b) If they do, does the land grant confer on the Land Trust the exclusive right of occupation over the whole area of the grant? In particular, does it exclude any subsisting public right to fish over the whole area of the grant? If not, does it do so: i. Between the high water mark and the low water mark? ii. In those parts of rivers affected by the flow and reflow of the tide and, if so, in which parts? (c) If there is a 'matter' does s 73 of the Land Rights Act limit the powers of the Northern Territory Parliament in relation to the regulation of fisheries within the area of the grant and/or within 2 km to the seaward of the area of the grant?

(i) The "matter" requirement 52 The appellants sought two classes of declarations at trial. The first was that they have the right to exclude people who, for the purposes of fishing, seek to enter land and waters anywhere within the boundaries of the land granted including the inter-tidal zone and inland waters. The second class of declarations sought was that the Fisheries Act does not affect their right to so exclude and, further (i) does not permit the issuing of fishing licences which permit fishing in the inter-tidal zone of the Arnhem Land grants, or waters of the sea within two kilometres of the external boundaries of those grants; and (ii) has no application to waters of the sea adjoining and within two kilometres of the external boundaries. 53 As to the first of these, His Honour held there was no matter, noting in particular that none of the respondents had a necessary interest in opposing the declarations in this class, except to the extent that they affect their own powers and rights: Gumana 141 FCR at [46]-[48]. There is no appeal in relation to this holding as such, although a declaration is sought on the appeal concerning the extent of rights of members of the public to fish and to navigate in relation to areas subject to the grants. 54 The Commonwealth in its appeal submissions has challenged the declaration so sought on the grounds both that there was no ground of appeal impugning Selway J's "no matter" holding and that the declaration which purports to be against the whole world is not one that ought be made in proceedings under s 39B of the Judiciary Act: see Wik Peoples v Queensland (1994) 49 FCR 1 at 3-6. 55 For reasons we later give, we decline in any event to make the particular declaration sought in the notice of appeal. We would reiterate, though, that the nature and extent of the appellants' rights to control access to the inter-tidal zone is a central issue in the appeal. 56 As to the second group of declarations, Selway J noted the Commonwealth's contention that the specific declarations sought by the appellants in relation to the powers of the Director and the operation of the Fisheries Act did not give rise to "a matter". His Honour, nonetheless, was satisfied there was a real dispute as to the Director's powers under the Fisheries Act and whether those powers could be used to interfere with the rights claimed by the applicants: Gumana 141 FCR at[49]. There clearly was evidence before Selway J that the Director had issued and renewed, and would continue to issue and renew, species of licences to fish to the high water mark in areas that could include the lands the subjects of the grants. 57 On the appeal the Commonwealth has resiled significantly from the stance taken at the trial. It now contends that the question whether there is a matter in relation to the Fisheries Act issues, will only arise if we take a particular view (which we do not) of the relationship between that Act and the Land Rights Act.

(ii) Did the grant in fee simple exclude any subsisting public right to fish in the inter-tidal zone? 58 But for the joint judgment of Beaumont and von Doussa JJ in Yarmirr FC, Selway J would have answered this question favourably to the appellants. Because of that decision, his Honour held that the fee simple grant did not confer on the Land Trust a right to exclude from the waters of the inter-tidal zone persons exercising public rights to fish or to navigate. His Honour also considered that such persons were not so excluded by s 70 of the Land Rights Act and that Yarmirr FC dictated this conclusion: Gumana 141 FCR at [80], [85] and [87]. The correctness of Yarmirr FC is in issue on the appeal as are the above conclusions which stemmed from that decision.

(iii) Did s 73 of the Land Rights Act limit the Northern Territory's powers to regulate fisheries in the inter-tidal zone and within two kilometres seaward? 59 In relation to the inter-tidal zone, Selway J held as the fee simple grant was subject to the public rights to fish and to navigate, legislation regulating or abrogating those rights (as in the Fisheries Act) could operate concurrently with the Land Rights Act (as required by s 73(1)) provided it did not authorise any interference with the rights conferred by the Land Rights Act. This conclusion is challenged in this appeal. 60 In relation to the two kilometre "buffer zone", his Honour considered that the conferral of powers of self-government on the Northern Territory by the Self Government Act and the extension of those powers to coastal waters by the Coastal Waters (Northern Territory Powers) Act should not be read down by reason of s 73(1)(d) of the Land Rights Act. This conclusion has not been called into question in this appeal.

The Land Rights Appeal - revisiting the Full Court decision in Yarmirr 61 It is well accepted that the principle of comity generally applied by a Full Court of this Court to an earlier Full Court decision is that the earlier decision should be followed unless the later Court considers it is plainly wrong: see generally SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. In satisfying itself whether or not the earlier Court so erred, a later Court ordinarily will have the benefit of reasons which will themselves betray the reasoning process for the earlier decision and so provide a basis for evaluation of that decision. On the point in issue there are no such reasons in the judgment of thetrial judge in Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 (Yarmirr TJ) and of the majority in Yarmirr FC 101 FCR 171. 62 A native title determination application was made in Yarmirr TJ 82 FCR 533over the seas and seabed within the claim area in the Crocker Island region of the Northern Territory. Importantly it excluded land and reefs already granted to the Land Trust under the Land Rights Act. As in the present matter the outer boundary of the grant extended to the low water mark. 63 The trial judge, Olney J, indicated that the effect of that exclusion was to exclude the land of the inter-tidal zone. This then raised the question whether the exclusion also excluded the waters which from time to time covered that zone. Being of the view that it was legitimate under the Native Title Act (given the definition of "waters" in s 253) to treat the sea-bed differently from the sea which covers it, Olney J concluded it was open to claim a determination in respect of the sea of the inter-tidal zone without making a claim in respect of the "sea-bed of that zone": Yarmirr TJ 82 FCR at 546. These waters were in consequence included on the sea claimed in the native title application. It should be noted that the Land Trust was not a party to the proceeding before Olney J. 64 In the event Olney J concluded that the evidence did not establish the existence of a native title right in the applicant community either to the exclusive possession, occupation and use of the waters of the claimed area or to control access to those waters: Yarmirr TJ 82 FCR at 593. His Honour had earlier indicated that the claimed native title right would not be recognised by the common law because "that would contradict the common law public right to navigate … [and] the public right to fish": Yarmirr TJ 82 FCR at 593. 65 It is clear from an extract of the transcript of the hearing before Olney J that the applicants' counsel claimed that: … the Land Trust already owns the water column over the land down to the low water mark, and that accordingly those seas are not the subject of the current claim. We also say that if your Honour were against us on that point, then we do claim those seas. This Court has been asked to infer from this and from Olney J's conclusion that he rejected the ownership claim to the "water column". Even if we accepted this, we can only say that His Honour's reasons for that rejection are nowhere revealed. 66 On appeal, the majority noted that (Yarmirr FC 101 FCR at [201]-[202]) (i) at common law, the public right to fish may be exercised on the foreshore; and (ii) Olney J had held, notwithstanding the exclusion of the land and reefs granted under the Land Rights Act from the determination sought in the native title application, the determination in that application extended to the inter-tidal zone. Justices Beaumont and von Doussa then observed (at [203]): We agree. Such an outcome accords with the terms of the Land Grants and also with the position at common law in any event. 67 The majority went on to uphold Olney J's native title determination that non-exclusive native title rights existed within the claimed area (which included the waters of the inter-tidal zone). 68 The brief observation quoted above - which encapsulates the totality of their Honours' reasons on the effect of a grant of a fee simple estate to the low water mark under the Land Rights Act - identifies two reasons for their agreement with Olney J's conclusion that the sea in the inter-tidal zone can be claimed separately under the Native Title Act from the land of that zone. The first (the "outcome accords with the terms of the land grants") would seem to treat a fee simple grant of land as a grant of "a thing" rather than of "a legal relationship with a thing": cf Yanner v Eaton (1999) 201 CLR 351 at [17]; see also Gray and Gray, Elements of Land Law, 2.2 ff (4th ed 2005). The second (that it accords "with the position at common law in any event") appears to refer to the common law public rights to fish and to navigate in the inter-tidal zone. 69 In early 2000 the unsuccessful appellants in Yarmirr FC 101 FCR 171moved the same Full Court to reopen its orders dismissing their appeal: see Yarmirr v Northern Territory of Australia [2000] FCA 48. The focus of the motion related to ground 2 of the notice of appeal in Yarmirr FC. It was that (at [83]): His Honour erred in failing to hold that the claimed area did not extend to the waters of the inter-tidal zone to the extent that such waters were within the grant of land under the Aboriginal Land Rights (Northern Territory) Act 1976: Judgement, para 27. 70 The appellants' contention on the motion was that while the Full Court's orders effectively resolved this issue adversely to them, it did not appear from the reasons that the matter sought to be agitated had been expressly addressed. 71 In dismissing the motion the Court noted that the Land Trust was not a party at first instance; it did not intervene; it was added as a party during the hearing of the appeal but did not appear; and it did not appear at the hearing of the motion. At no point did it seek to resist the claim that the native title determination sought included the waters of the inter-tidal zone. The Court indicated it was, and remained, of the view that there was no appellable error in the judgment at first instance in respect of that claim. It concluded (at [10]): In the absence of any attempt by the Trust to contradict the appellant's claim to those waters, no basis exists for us to disturb his Honour's conclusion. 72 For the sake of completeness it is to be noted that the Full Court's decision in Yarmirr FC 101 FCR 171 was affirmed in the High Court: Commonwealth v Yarmirr (2001) 208 CLR 1 (Yarmirr HC); but without reference to, let alone comment upon, the Land Rights Act grant of land. 73 Trial judges of this Court have, since Yarmirr FC 101 FCR 171, properly regarded themselves as bound to hold that the grant of a fee simple to a Land Trust over the inter-tidal zone does not include the waters in that zone and does not confer on the Trust the exclusive right to control access to the sea overlying that zone: see Arnhemland Aboriginal Land Trust 170 ALR at [46] and Selway J in the present matter. For present purposes, though, it is necessary that we consider independently the correctness of Yarmirr FC 101 FCR 171 for the following reasons. 74 First, given the sparse reasoning of the Full Court, it is unavoidable that we arrive at our own conclusion on the effect of a grant of land in fee simple to the inter-tidal zone under the Land Rights Act. In the very distinctive circumstances in which the comity issue arises here, to do otherwise would be simply to assume the correctness of Yarmirr FC 101 171in this respect without evaluation of such reasoning as could lead to the Yarmirr FC conclusion. 75 Secondly, it is clear both from the decisions of Olney J and of the majority in Yarmirr FC 101 FCR 171 that, in a native title determination application, an important issue under the Land Rights Act was in a sense decided by a sidewind. Nowhere in the reasoning of the judges is reference made to, or an analysis made of, the scheme of the Land Rights Act and of the statutory purposes and meaning of such provisions as s 70 and s 73 as they relate to the grant of a fee simple to the low water mark. It cannot safely be assumed that such a grant is not made subject to statutory qualification and modification: cf Woodward J, Second Report, [101]. 76 Thirdly, the reasoning and dicta of the majority judgment of the High Court in Risk 210 CLR 392provide significant reason for our considering the question afresh in any event. The decision in Risk 210 CLR 392, it should be added, post-dated Sackville J's dictum in the Land Trust Case FCon the effect of a grant in fee simple to the inter-tidal zone to which reference has already been made. 77 In Risk 210 CLR 392 the central question was whether the seabed of bays or gulfs within the limits of the Northern Territory could be the subject of a claim under the Land Rights Act. It was held that "land in the Northern Territory" in the s 3(1) definition of "Crown land" in that Act did not include the seabed below the low water mark, hence such areas could not be claimed under the Act. It is to be noted in passing that the land to be vested in Land Trusts whether under Schedule 1 or otherwise is described in s 4 of the Act as "land in the Northern Territory". 78 The majority judgment of Gleeson CJ and Gaudron, Kirby and Hayne JJ (Risk 210 CLR at [25]) indicated there were at least three reasons to conclude that "land in the Northern Territory" does not mean the seabed of bays or gulfs. These were: First, there are strong textual indications in the Land Rights Act that 'land in the Northern Territory' does not include the seabed. Secondly, the nature of the interest which is granted to a Land Trust suggests that the seabed is not 'land in the Northern Territory'. Thirdly, any remaining doubt about the matter is put to rest when regard is had to relevant extrinsic material and the legislative history which lies behind the Land Rights Act. 79 As to the textual indications the judgment noted that the word "land" would not ordinarily be understood as encompassing "the seabed". Their Honours went on to observe (at [28]-[29] footnotes omitted): 28. By far the most important textual indication is, however, to be found in s 73(1)(d). It may readily be accepted that, as the appellant submitted and was recognised in the Full Court of the Federal Court, Aboriginal tradition does not distinguish between 'land' and 'sea' and that 'country' can include 'sea country'. It must, however, also be recognised that s 73(1)(d) of the Land Rights Act does make the distinction between 'land' and 'sea'. And the evident purpose of s 73(1)(d) is to provide for laws regulating the use of parts of the sea adjoining Aboriginal land while, at the same time, permitting traditional use of those waters. 29. This provision, permitting the Northern Territory legislature to create a 2 km 'buffer zone' of sea adjoining Aboriginal land assumes that the buffer zone thus created is not itself 'Aboriginal land'. That is, s 73(1)(d) assumes that the strip of sea up to 2 km wide is not 'land held by a Land Trust for an estate in fee simple' … Yet s 73(1)(d) also assumes that there may be Aboriginals who, in accordance with Aboriginal tradition, may enter, and use the resources of, those waters. Those Aboriginals who, in accordance with Aboriginal tradition, may enter, and use the resources of, those waters may not fall within the definition of 'traditional Aboriginal owners' in the Land Rights Act. Aboriginal tradition may extend the right to enter and use the resources of an area to individuals, other than the traditional owners of the area. But if the appellant's contention that there are traditional owners of the area the subject of this claim is right, it would follow that the provision for a 2 km buffer zone is unnecessary to protect their interests. They are entitled to seek a grant of the land. Nor would it be necessary to protect the interests of those Aboriginals who, though not owners, are entitled to use the waters. Entry by persons in this latter category would not be contrary to s 70 of the Land Rights Act being an entry of the kind permitted by s 71. It follows that, if the appellant is right, s 73(1)(d) would have little if any useful work to do. (Emphasis added) 80 What we would note in this is that, while rejecting the appellants' contention, the joint judgment places the inter-tidal zone in the category of "land" and not "sea". It equally demonstrates both the protection given by a grant of land under the Act and the important interplay of land ownership and s 70, s 71 and s 73 of the Act. 81 Turning to the nature of the interest claimed, it was observed (at [31] and [32]): 31. The area claimed includes the bed of bays and gulfs. If the claim were to be allowed, the grant that would be made would be of an estate in fee simple in that part of the seabed. It would follow that, if granted, the claimants' interest in the seabed would, on its face, appear to permit them to control access to the superjacent waters. 32. We were told, in argument, that whether a grant of an estate in fee simple in the seabed would permit the grantee to prevent the exercise of public rights to fish or to navigate in the waters above that part of the seabed is an unresolved question. So too, we were told, the attendant question of construction of the statutory prohibition (in s 70(1) of the Land Rights Act) against entering or remaining on Aboriginal land, is said to be unresolved. Those questions not having been argued in this matter it is inappropriate to resolve them. Nonetheless, it may be observed that there is nothing in the Land Rights Act which appears to limit the rights of the holder of an estate in fee simple in land granted under the Act to rights over only the solid substance of the earth's crust, as distinct from those parts of the superjacent fluid (be it liquid or gas) which can ordinarily be used by an owner. And in the end it may be doubted that the appellant limited the claim that had been made to a claim to the seabed alone, for to do so would deny the existence of one of the two essential elements of the Act's definition of 'traditional Aboriginal owners' as a local descent group of Aboriginals who 'are entitled by Aboriginal tradition to forage as of right over [the land in question]'. On the face of things, in its primary meanings, the word 'forage' seems inapt to activities upon under-sea land, at least when that land is more than a few metres from the shore line. But if the expression 'forage … over that land' is to have application to submerged land, it must be understood as extending at least to fishing in and taking the resources of the sea. The assertion of entitlement to forage over the area the subject of the claim which gives rise to this appeal (an assertion necessarily implicit in the claim) seems contrary to any narrow understanding of the subject of the present claim as being only the seabed, as distinct from the superjacent waters. (Emphasis added) 82 Understandably, the appellants place no little emphasis upon these observations in this appeal. As will be seen, it provides some confirmation of the view at which we have arrived after full argument, as to the rights accorded a grantee under the Land Rights Act of a fee simple estate to the inter-tidal zone. It is to this we now turn.

The Land Rights Appeal - fee simple grants in the inter-tidal zone 83 It is necessary to begin with a number of relatively uncontroversial propositions. First, it is well accepted, though often hyperbolically expressed, that an estate in fee simple is for almost all practical purposes the equivalent of full ownership of the land and confers the lawful right to exercise over, upon, and in respect to, the land all rights of ownership save to the extent that any such right has been abrogated, qualified or varied by statute, by the owner of the fee simple or by a predecessor in title (whether or not for the benefit of a third person): see Fejo v Northern Territory (1998) 195 CLR 96 at [44] and the cases there referred to; see also Megarry & Wade, The Law of Real Property, 3-041 ff (6th Ed, 2000). 84 Secondly, since the advent of responsible government in colonial Australia the management, control and disposition of Crown Lands has been vested in our, now, State and Territorial legislatures rather than in the Crown exercising its prerogative: for a brief account see Wik Peoples v Queensland (1996) 187 CLR 1 at 171 ff. Where a statute authorises the grant of a fee simple estate, it is presumed that the estate granted has the characteristics of such an estate under the general law: see Land Trust Case FC 109 FCRat [118] per Sackville J; unless it appears from that or some other statute that it abrogates, varies, or adds to those characteristics in some way: see eg s 71(1) of the Land Rights Act. 85 Thirdly, where land is bounded in whole or in part by tidal water, that boundary at common law is the mean high water mark: Attorney-General v Chambers (1854) 4 De G M & G 206. As for land between that mark and the low water mark (ie the foreshore), the owner is prima facie the Crown: Blundell v Catterall (1821) 5 B & Ald 268 at 304; although the foreshore can be made subject of private ownership: Fowley Marine (Emsworth) Ltd v Gafford [1967] 2 QB 808 at 818; see also Svendsen v State of Queensland [2002] 1 Qd R 216 at 221 ff. 86 Fourthly, at common law, a riparian owner of land through which non-tidal waters flow, has as part of his or her natural right of ownership, the sole right to fish: Cooper v Phibbs (1867) LR 2 HL 149 at 165. However, in inter-tidal zone waters the public has rights to fish and to navigate which are recognised by the common law. Those rights, though, are public not proprietary rights and are "freely amenable to abrogation or regulation by a competent legislature": Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 330; see also Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 at [88] ff and [105] ff. 87 The final general matter to be noted relates to the respective treatments of land and water in the Land Rights Act and the Native Title Act. As the decision in Risk 210 CLR 392indicates "land" to which the Land Rights Act can apply is bounded by the low water mark. Beyond that mark are the sea and the sea bed. Under s 253 of the Native Title Act the respective definitions of "land" and "waters" are as follows: land includes the airspace over, or subsoil under, land, but does not include waters. Note 1: Because of the definition of waters, not only rivers and lakes etc., but also such things as the bed or subsoil under, and airspace over, rivers and lakes etc. will not be included in land. Note 2: Because of the definition of waters, the area between high water and low water will not be included in land. waters includes: (a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or (b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)); or (c) the shore, or subsoil under or airspace over the shore, between high water and low water. Paragraph (c) of the definition of "water" was added by the Native Title Amendment Act 1998 (Cth) which was enacted after the date on which Olney J's judgment in Yarmirr TJ 82 FCR 533 was delivered. It extended explicitly the distinction drawn by Olney J. For the purposes of the Native Title Act the foreshore was to be "waters", not "land". 88 It is not necessary for present purposes that we reach any conclusion upon the question whether a grant of a fee simple estate to the inter-tidal zone which was authorised by statute to be made, would of itself have been sufficient to give the grantee the right to exclude persons who previously may have had a public right to fish and to navigate in that zone. We would only observe that (i) in such a case, no question would arise as to any prerogative of the Crown or as to the inability of the Crown in the exercise of its prerogative to override the public rights to fish and to navigate in the inter-tidal zone; and (ii) the comments made in the joint judgment in Risk 210 CLR 392 could be interpreted as providing some support for such a right to exclude. The grant in our view must be considered in the context of the Land Rights Act and its purposes. 89 Equally, because of the view we take of the text, structure and context of the Land Rights Act, it is unnecessary for us to enter upon the debate fanned by Selway J as to whether the public rights to fish and to navigate are, strictly, common law rights or "are best understood as restrictions on the Crown's prerogative": Gumana 141 FCR at [69]. It is unsurprising, though, that in different ages the rights have been ascribed differing provenances: see Bonyhady, The Law of the Countryside, Ch 8 (1987). What needs to be said about the public rights is what has been emphasised on a number of occasions. As was said by Barrett J in Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 (at [84]): … it is not possible to make, with any degree of confidence, a complete and exhaustive statement of the common law rights of the public in relation to tidal waters and the foreshore. The matter is a 'difficult question' no less today than when so described by Lord Wright in 1935 [in Williams-Ellis v Cobb [1935] 1 KB 310 at 320]. See also Bonyhady at 240 on the right to fish ("the legal basis of this right is unclear and there are also significant limitations on the manner in which the right may be exercised"). 90 As was Selway J (though obliged to decide to the contrary), we are satisfied that a grant of an estate in fee simple to the low water mark under and in furtherance of the purposes of the Land Rights Act as revealed in its text and context conferred a right to exclude from the inter-tidal zone including a right to exclude those seeking to exercise a public right to fish or to navigate. In consequence, because of the express limitation on the power of the Northern Territory legislature imposed by s 73(1) and s 74 of the Land Rights Act, the Fisheries Act has to be read down under s 59 of the Interpretation Act 1978 (NT) so as not to authorise the grant of a licence to take fish in relation to the inter-tidal zone. 91 We are satisfied that the decision of the Full Court in this regard is plainly wrong and ought not to be followed. 92 Our reasons can be stated shortly. We would preface them with this observation. The argument advanced by the Northern Territory in particular, that all that was granted to the Land Trust was the land as such of the inter-tidal zone and not the tidal waters (or "column of water") that overlay it from time to time, was a distraction. The moving water itself, no less than the contents of the atmosphere in the airspace above the land, was not and could not as such properly be the subject of the Trust's ownership. The question to which the grant gave rise for present purposes was not whether the Land Trust acquired rights in virtue of its fee simple in the land to the use and occupation of, and to taking from, the land, water and air above it. These it clearly did and in some measure: see generally Butt, Land Law, Ch 2 (5th ed, 2006); Megarry and Wade, at 3-045 ff; Risk 210 CLR at [32]. Rather the question was what was the extent of those rights particularly in relation to the exclusion of others from entry upon, use of, and taking from, the land and space above it. The answer to that question is to be found not simply in the general law relating to what is ordinarily comprehended by an estate in fee simple in an inter-tidal zone or otherwise. It requires, first and foremost, a consideration of the Land Rights Act itself. It is this vital element which appears to be lacking in the majority judgment in Yarmirr FC 101 FCR 171. 93 It has already been noted that the Native Title Act now defines foreshore "land" as being "waters", not land, for the purposes of that Act. Though the majority judgment in Risk 210 CLR 392did not have to address the particular question of how the foreshore should be characterised for the purposes of the Land Rights Act, that judgment does with respect lend support for the view that that Act gives the converse characterisation of the foreshore where an estate in fee simple is granted to the low water mark. It is "land" and not "waters of the sea" (cf s 73(1)(d) of the Act) or the seabed. 94 There are a number of textual and contextual reasons as to why this particular legislative choice appears to have been made and the consequences intended by it. First, the "buffer zone" proposal as made by Woodward J and as varied in s 73(1)(d) of the Land Rights Act, presupposed a particular boundary from which the two kilometre zone would run. If the inter-tidal zone was for s 73(1)(d) purposes to be included within the "waters of the sea" (i.e. the tidal water on it was "adjoining" Aboriginal land), the two kilometre zone itself would either move with the tide, or else, paradoxically, be fixed at the high water mark. The significance of either possibility in areas known to have large tidal ranges is self evident. Secondly, more importantly, the text, structure and context of the Act itself indicate that certain particular benefits were intended to be conferred upon or (in the case of the s 73(1)(d) legislative compromise) denied to, the Aboriginals by the grant to the low water mark. Considered in the context of the Second Report of Woodward J and of the declared beneficial purpose of the Act itself (reflected in its long title), the grant can properly be seen to represent a clarification of the rights of Aboriginals in relation to the inter-tidal zone (Second Report at [420]) which was itself a limited recognition of what they traditionally regarded as "their land" (at [422]). While the legislative compromise in s 73(1)(d) denied a Land Trust the benefit of the inclusion of the two kilometre seaward buffer zone in the definition of "Aboriginal land", it nonetheless still provided a means by which the Northern Territory legislature could still protect the "legitimate interests of Aborigines" by "preserving their traditional fishing rights and their right to the privacy of their land": Second Report [at 423]. The grant to the low water mark (as distinct from the high water mark) was in this regard some recognition of those "legitimate interests" (both in relation to fishing and to excluding entry). Thirdly, in this statutory setting and context, s 70 is of decisive significance. As earlier noted, the powers of s 73(1)(b) and (d) were enlivened in the Northern Territory's Land Act. There is nothing in that Act revealing a legislative intent that purports to exempt public rights to fish and to navigate from the prohibition imposed on entering Aboriginal lands (or for that matter closed seas) without a permit. On the contrary, the detail and breadth of the local Act suggests a legislative intent to deal comprehensively with lawful entry. In saying this we have not overlooked an argument advanced to the contrary effect by the Commonwealth that in entering onto Aboriginal land in the exercise of public rights to fish and to navigate, a person would be doing so in "accordance with a law of the Northern Territory" (cf s 70(2A) and s 4(1) of the Land Act). We deal separately below with this. Having regard to the structure and purpose of the Land Rights Act, and to the context of the legislation particularly as evidenced in Woodward J's two Reports: cf Risk 210 CLR at [83]; the uncompromising language of s 70(1) does not admit of an implicit qualification that would exempt from its prohibition a person purporting to exercise a public right to fish or to navigate in the tidal zone. Rather, that language reflects and reinforces the extent of the Land Trust's right to exclude from the inter-tidal zone which the Land Rights Act is to be taken as having intended it to have by virtue of a grant of fee simple under it. Save as modified by statute, it was an exclusive right. 95 The respondents seek to counter this conclusion in two ways. First, it is said by all respondents that if Parliament had intended to abrogate public rights, it needed to, but did not, do so with unmistakeable clarity. Reliance is placed upon the line of cases exemplified by Potter v Minahan (1908) 7 CLR 277 at 304. Secondly, as foreshadowed above, it is submitted by the Commonwealth that a person entering upon Aboriginal land in the exercise of a public right to fish or to navigate would be acting "in accordance with … a law of the Northern Territory" for the purposes of s 70(2A) of the Land Rights Act. There is a short answer to each of these. 96 First, the reliance placed on the principle of statutory construction that Parliament is presumed not to intend to change the common law unless the legislation indicates with "unmistakeable clarity" that this was intended, is itself misplaced in this context. There is a significant body of recent judicial opinion questioning the contemporary accuracy and utility of a principle so widely cast: see Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [28]-[30]; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at [19]-[20]. As Spigelman CJ observed in R v Janceski (2005) 64 NSWLR 10 at [62] that principle is now "of minimal weight": It reflects an earlier era when judges approached legislation as some kind of foreign intrusion. The scope and frequency of legislative amendment of the common law, including the common law of criminal procedure, has over many decades been both wide ranging and fundamental. 97 Nonetheless, there is a significant line of High Court authority initiated in Potter 7 CLR 277to the effect that Parliament does not intend to alter or restrict "a fundamental right, freedom or immunity": see Coco v The Queen (1994) 179 CLR 427 at 437, Daniels Corporation v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553, [11]; unless there is a real indication both that the legislature has directed its attention to the question and has determined to make that alteration or to impose that restriction: see Electrolux Home Products Pty Ltd 221 CLR at [21]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [30]; Al-Kateb v Godwin (2004) 219 CLR 562 at [19] and [150]. In this core area of fundamental rights and freedoms the interpretative presumption retains strength and vitality. In this connection it resembles the so-called principle of legality in England: R v Secretary of State for Home Department; Ex parte Simms [2000] 2 AC 115 at 131. 98 Beyond that core, "[t]he assistance to be derived from [the] presumption will vary with the context in which it is applied": Electrolux Home Products Pty Ltd 221 CLR at [19] per Gleeson CJ. As McHugh J observed in Malika Holdings Pty Ltd 204 CLR at [30]: Speaking generally, a much surer guide to the legislative intention in areas of legislation dealing with ordinary rights or the general system of law is to construe the language of the enactment in its natural and ordinary meaning, having regard to its context - which will include other provisions of the enactment, its history and the state of the law - as well as the purpose which the enactment seeks to achieve. 99 This, with respect, is particularly apposite with a statute such as the Land Rights Act. It has a declared beneficial purpose, a known and influential context in the Woodward J Reports and, having addressed directly the question of entry upon Aboriginal land (in s 70 and s 73(1)(b)) in furtherance of the Second Report's recommendations, it has in our view spoken with unmistakable clarity in s 70(1): see also CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. The particular public rights asserted by the respondents have no place in this legislative scheme. As noted below, they are not preserved obliquely by the s 70(2A) defence. Moreover, while those rights may properly be able to be called "paramount" vis-ŕ-vis the Crown's prerogative: see Harper 168 CLRat 329; they cannot properly be described today as fundamental rights in relation to inter-tidal zones (we do not comment on the right to navigate beyond that zone and we do note the "necessity" saving in s 70(3)): whatever may have been their significance to coastal communities in earlier ages: cf Anderson v Alnwick District Council [1993] 1 WLR 1156 at 1169. This is particularly so of the public right to fish with all its attendant uncertainties: see Georgeski 62 NSWLR at [77]-[84]. 100 Secondly, the Commonwealth's submission that entry on Aboriginal land in reliance on the public rights to fish and/or to navigate is, for the purposes of s 70(2A) of the Land Rights Act, an entry "in accordance with a law of the Northern Territory". This submission must fail if, as we consider, the Act abrogated those rights in any event (assuming they subsisted in relation to the inter-tidal zone in question when the Land Rights Act was enacted: cf per Selway J, Gumana 141 FCR at 481). 101 A "law of the Northern Territory" is defined in the Land Rights Act to mean a law made under, or having effect in the Northern Territory by virtue of, the Self Government Act. Section 57 of the latter Act in turn continued in force "all existing laws of the Territory" and gave them the same operation as they would have had if the Self Government Act had not been enacted. 102 There is authority for the view that the manner in which the Northern Territory became a Territory under the Commonwealth in the Northern Territory Acceptance Act 1910 (Cth) (Acceptance Act) had the effect of putting the continued operation of the common law in the Territory on a statutory basis: see the Acceptance Act, s 7; O'Neill v Mann (2000) 175 ALR 742. In consequence a common law claim in the Territory could be said to arise under a law made by the Commonwealth Parliament for the purposes of s 39B(1A)(c) of the Judiciary Act. That statutory foundation, though, did not, and does not, alter the essential character of the common law. It remains the "common law of Australia": see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563; Lipohar v The Queen (1999) 200 CLR 485 at 505 ff. Though it applies in the States and Territories, it is not itself "the creature of any State [or Territory]": Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 112. It cannot properly be described as "a law of a State or Territory". For this reason, it cannot properly be said to be one of the "existing laws of the Territory" continued in force by the Self Government Act. In consequence it is not a "law of the Territory" envisaged by s 70(2A) of the Land Rights Act. That provision in its setting was clearly enough intended to refer to the entry etc on Aboriginal land authorised by or under specific legislation. Section 70(2A) does not draw within its compass the public rights to fish and to navigate in the inter-tidal zone as suggested by the Commonwealth. 103 It was earlier indicated that s 19(4A) of the Land Rights Act authorises a Land Trust, subject to the written consent of the Minister and the written direction of the relevant Land Council, to grant a licence (see s 19(11)), estate, or interest in respect of any part of the land held. This power could, for example, be exercised in relation to the inter-tidal zone by the grant of a licence to fish. The Fisheries Act would, in consequence, have to be read down if it were to be capable of operating concurrently with the power so given in the Land Rights Act: Land Rights Act, s 74. More importantly, while s 73(1)(b) of the Land Rights Act confers a power on the Northern Territory Parliament to make laws regulating entry of persons on Aboriginal land, it does not grant a power to pass laws relating to fishing on, or otherwise taking from, Aboriginal lands: cf s 73(1)(d). An entry for the purpose of fishing (whether in a boat on tidal waters or otherwise), would in consequence attract the full force of s 70(1). To be capable of operating concurrently with the Land Rights Act, the Fisheries Act must necessarily be read down so as not to authorise entry for such a purpose. We would simply add that fishing in the tidal zone from a boat would be no less a trespass on the land in question than would fishing from the surface of the land in that zone: cf Grant v Henry (1894) 21 R 358 at 363 (Scot).

The Land Rights Appeal - Conclusion 104 The appeal in the Land Rights Proceedings will be allowed and the orders of the trial judge be set aside. In relation to the declarations sought in the notice of appeal we will make declarations in relation to the Fisheries Act but we decline to make the negative declarations sought in relation to the rights of members of the public to fish and to navigate in the inter-tidal zone. Given our reasons and conclusions we consider such declarations to be unnecessary (if indeed there is a "matter" to which they would relate): cf Selway J, Gumana 141 FCR at [48]. 105 Accordingly we will declare that the Fisheries Act 1988 (NT): (a) has no application in relation to areas within the boundary lines described in the deeds of grant known as the Arnhem Land (Mainland) and Arnhem Land (Islands) grants made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); (b) does not confer on the Second Respondent 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; and (c) is of no effect insofar as it purports to operate with respect to areas subject to the grants.

The Native Title Appeal - grounds of appeal, cross-appeal and contention 106 By their notice of appeal the traditional owners contended that the Court below erred in failing to hold, in accordance with Yarmirr FC 101 FCR 171, that the right of members of the public to fish or navigate in the inter-tidal zone had been abrogated since at least 1931 and that grants made under the Land Rights Act conferred on the Land Trust a right of exclusive possession in relation to the inter-tidal zone (Ground 1). The ground replicated in part the grounds of appeal in the Land Rights Proceeding. It involved a contention that s 70 of the Land Rights Act precludes persons from entering into the inter-tidal zone and that the rights of licensees under the Fisheries Act, and members of the public, to fish and navigate in the inter-tidal zone are "other interests" for the purposes of s 225 of the Native Title Act. This ground falls out with the dispositionof the Land Rights Appeal. Two grounds related to the application of s 47A of the Native Title Act(Grounds 2 and 3). The traditional owners contended that any extinguishment of native title rights and interests in relation to the inter-tidal zone, which were effected by the assertion of British sovereignty, must be disregarded by operation of s 47A. 107 The notice of appeal contained a further ground that the Court erred in holding that the right of the traditional owners 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 (Ground 4). Ground 4 was abandoned - Appellants' submission [1.2] footnote 3. 108 The Commonwealth cross appealed. The grounds of its cross-appeal embodied the following propositions: 1. That the Court failed to identify the various groups or categories of persons holding native title rights and interests in the determination area and the nature and extent of those native title rights and interests (Grounds 1 and 2). 2. That the Court erred in holding that spouses of clan members were persons who necessarily had a connection with their spouses' clan estate for the purposes of s 223(1)(b) of the Native Title Act(Grounds 3 and 4). 3. That the Court erred in including, in the native title rights and interests recognised under the determination, a right to make decisions which would have the effect of controlling the use and enjoyment of the area by Aboriginal people who recognise themselves as governed by the traditional laws and customs acknowledged and observed by the native title holders (Grounds 5 and 6).

On 26 June 2006 the Commonwealth gave notice that grounds 1 and 2, relating to the specification of the native title holders and the nature and extent of native title rights in the relevant area, were abandoned. 109 The Northern Territory filed a notice of cross-appeal raising a challenge to the inclusion in the determination of the right to make decisions about access to, and use and enjoyment of the area by other Aboriginal people who recognised themselves as governed by the native title holders' traditional laws and customs. 110 The Commonwealth also filed a notice of contention. In its notice of contention the Commonwealth set out the following propositions: (a) The area the subject of the Land Rights Act grants does not include any water. (b) The rights conferred by the Land Rights Act grants are subject to and qualified by the public rights to fish and navigate. (c) Section 70 of the Land Rights Actdoes not prohibit the exercise of fishing or navigation rights in the tidal areas within the outer boundaries of the Land Rights Act grants. (d) The Fisheries Actand licences granted under it are valid and apply to waters within the outer boundaries of the Land Rights Act grants. (e) Section 47A does not apply to tidal waters within the outer boundaries of the Land Rights Act grants because those waters were not included in the Land Rights Act grants. (f) Section 47A does not apply to the inter-tidal zone because the native title claimants "do not occupy it" for the purposes of s 47A(1)(c); and (g) Any exclusive native title rights in relation to Djalkiri places that were recognised by the common law were extinguished by fishing legislation.

Subparagraphs (a) to (e) fall away with the disposition of the Land Rights Appeal. Subparagraph (g) does not now arise because of the abandonment by the traditional owners of ground 4 of their appeal. And as will be seen, subparagraph (f) does not arise for determination. The Native Title Appeal - statutory framework 111 Part 2 of the Native Title Actis entitled "Native Title". It comprises nine divisions. Division 4 is headed "Other provisions relating to native title" and consists of ss 44H to 47B inclusive. Sections 47, 47A and 47B have similar although not identical applications. They provide for circumstances in which the extinguishment, by certain acts, of the native title rights and interests in relation to an area the subject of an application, must be disregarded. As helpfully paraphrased in Perry & Lloyd, Australian Native Title Law (Law Book Co, 2003) at 2-3700, the relevant sections provide that: (a) any extinguishment of native title by certain prior acts must be "disregarded" for all purposes in relation to any application under s 61 of the Act in the case of s 47 and, in relation to any claimant application under s 61 in the case of ss 47A and 47B. (b) where a determination is made that native title exists, the non-extinguishment principle applies. 112 Section 47 applies to the case where, at the time a s 61 application is made, a pastoral lease is held over the area the subject of the application by: (i) any of the persons who made the application claiming to hold the native title or any other persons with whom they claim to hold the title; or (ii) a trustee, on trust for any of those persons; or (iii) a company whose only shareholders are any of those persons.

Section 47A applies if the area covered by a native title determination application is reserved or vested for the benefit of Aboriginal people and Torres Strait Islanders. It is also a requirement that one or more of the members of the native title claim group occupy the area at the time of the application. Section 47B applies when the claim covers vacant Crown land and one or more members of the claim group occupy the area at the time of the application. 113 Section 47A provides: (1) This section applies if: (a) a claimant application is made in relation to an area; and (b) when the application is made: (i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and (c) when the application is made, one or more members of the native title group occupy the area. (2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded: (a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii); (b) the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services). (3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed: (a) the determination does not affect: (i) the validity of the grant or vesting or of the creation of the trust or reservation; or (ii) the validity of the creation of any other prior interest in relation to the area; or (iii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and (b) the non-extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest. (4) For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity. 114 The word "extinguish" is defined in s 237A thus: The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect. This definition does not go to the content of the term "extinguish" but gives it irreversible effect, subject to such statutory exceptions as are found in ss 47, 47A and 47B. To the extent that temporary extinguishment was possible at common law, the definition may effect extinguishment. 115 The word "act" is defined, non-exhaustively, in s 226 thus: (1) This section affects the meaning of act in references to an act affecting native title and in other references in relation to native title. (2) An act includes any of the following acts: (a) the making, amendment or repeal of any legislation; (b) the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument; (c) the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters; (d) the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise; (e) the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation; (f) an act having any effect at common law or in equity. (3) An act may be done by the Crown in any of its capacities or by any other person. 116 Important for present purposes is s 223(1) which provides: The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 117 The Explanatory Memorandum for the Native Title Amendment Bill 1997 which, as enacted, introduced s 47A into the Native Title Act, said of the section: 5.45 The Senate made Government amendment (45R) which is included in the Bill. This amendment inserts two new sections - 47A and 47B. Section 47A (reserves etc covered by claimant applications) is a statutory mechanism designed to allow native title claimants who are in occupation of land currently subject to a 'land rights' type grant to, or a trust or reservation for, Aboriginal peoples and Torres Strait Islanders, to overcome the effect of past extinguishment and have their claim determined by the court. The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease. This provision will allow a claim for land granted to, held in trust or reserved for, Aboriginal people and Torres Strait Islanders where the claimants are in occupation of the land, notwithstanding possible extinguishment by the grant, trust or reservation, or, more importantly, any historical act. 5.46 The amendment implements the recommendation of the Majority Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Bill that: Governments should deal sensitively and on a case-by-case basis with those situations where Indigenous people continue to live on reserves but are unable to register native title applications. And at 5.49, after setting out the requirements of the section, the Explanatory Memorandum went on: If these requirements are met, the extinguishment by the 'land rights' type grant or the creation of the trust or reservation is ignored, as is any other prior act, for the purposes of determining the claim. The only exception is that for land held on trust, the prior grant of freehold is not disregarded. In such a case, the claim will not be able to be made out. But if the land had previously been subject to a leasehold grant, then the extinguishing effect of that grant is ignored. Similarly, if the land had previously been subject to a pastoral lease, then the partial extinguishment effected by that grant is also ignored. This is the case even if these grants are validated under the Native Title Act, or are subject to the confirmation regime in the Act.

The Explanatory Memorandum also noted that claimants would still need to establish the positive elements of their claim, namely that the land is their traditional land and that they have maintained their traditional connection to it. 118 In the relevant Second Reading Speech in the House of Representatives on 9 March 1998, the Attorney-General said that the mischief to which s 47A was directed was the extinguishing effects of previous land grants particularly "the historic" pastoral leases (at 783): Perhaps most significantly, so far as indigenous criticism was concerned, the government met the argument that the bill failed to take account of the issue of 'historic' pastoral leases. Proposed sections 47A and 47B … will enable indigenous people who are in occupation of an area where there are no longer any competing third party rights to claim native title and have the court disregard the tenure history of the area in determining that claim. The Native Title Appeal - section 47A and exclusive rights in the inter-tidal zone 119 Selway J held that where s 47A applies it does not require the effect of the acquisition of sovereignty by the British Crown on native title rights and interests to be disregarded. The common law received at sovereignty did not permit recognition of exclusive native title rights and interests in the sea nor in the inter-tidal zone. That non-recognition was not an "extinguishment" of those rights and interests to be disregarded by operation of s 47A. His Honour expressed his conclusion thus (Gumana 141 FCR at [263]): …, it seems to me that s 47A does not have the effect that the "non-recognition" of the traditional right of exclusive occupation of the tidal zone by reason of the public rights to fish and navigate is to be disregarded for the purpose of making a determination of native title. 120 In the discussion of the recognition of native title in the inter-tidal zone which preceded that conclusion, Selway J said (Gumana 141 FCR at [231]): The common law will not recognise indigenous rights and interests that are antithetical to the fundamental tenets of the common law or to rights and interests conferred by the common law. His Honour referred, by way of example, to the decision of the High Court in Yarmirr HC 208 CLR 1 that held claimed native title rights to the exclusive possession of the sea could not be recognised as they were inconsistent with the public rights at common law to fish and navigate. He was satisfied, given concessions made by the parties, "that the applicants' exclusive rights to occupy the area to the seaward of the low water mark was not recognised by the common law as at 1788 because that right was inconsistent with the public rights to fish and to navigate" (at Gumana 141 FCR [233]). The same conclusion necessarily followed in relation to tidal waters landward of the low water mark. Those waters were also subject to common law public rights (Gumana 141 FCR at [234]). 121 The traditional owners submitted to his Honour,and he accepted, that s 47A of the Native Title Act applies to the area of the land grant including the inter-tidal zone and the waters above it. Theyargued that the claim of the British Crown to sovereignty of what was then part of the colony of New South Wales, in 1788 involved the "creation" of a "prior interest in relation to the area" within the meaning of s 47A(2)(b). On that basis they submittedthat the non-recognition of exclusive rights at common law was an extinguishment of native title rights and interests to be disregarded pursuant to s 47A. 122 His Honour posed the question raised by the s 47A submission thus (Gumana 141 FCR at [257]): The question then is whether Parliament has used the word "extinguishment" in s 47A NTA in a general sense where it might include "non-recognition" or in its more precise sense where it would not. It seems to me most unlikely that the Commonwealth Parliament would have intended that all "non-recognition" be disregarded. "Non-recognition" is not limited to inconsistency with common law rights. It includes non-recognition on the basis that the rights claimed, or the traditions on which they are based, are ones that the common law would not recognise for reasons of judicial policy. 123 After referring to the Second Reading Speech for the 1998 amendments to the Native Title Act, his Honour said ( Gumana 141 FCR at [261]): In my view the word "extinguishment" in s 47A(2) NTA means extinguishment by an act of sovereign will (usually legislation or an act done pursuant to legislation) of a right capable of recognition by the common law as at the date of settlement. 124 In their appeal against this aspect of his Honour's findings, the traditional owners posed the question for determination thus: … if the conditions for the application of s 47A in relation to an area covered by a freehold estate are satisfied, and that area ends at the low water mark and covers the foreshore and intersecting rivers, streams and estuaries, is the prior assertion of sovereignty on terms that recognised public rights to fish and navigate tidal waters of the area an act covered by s 47A(2)(b) of the Native Title Act. 125 There is an immediate constructional answer to that question based upon the definition in s 223 of "native title rights and interests". That definition requires that they be rights and interests "recognised by the common law of Australia". The extinguishment to be disregarded for the purposes of s 47A is of rights and interests so recognised. The section rests upon the logical premise that the extinguishment to be disregarded is the extinguishment of native title rights and interests that were in existence prior to the extinguishing event. For the purposes of the Act a native title right or interest which was never recognised by the common law hasnever existed. Section 47A cannot, as a matter of language, be used to rectify the failure of the common law to recognise certain classes of native title rights and interests from the time of its reception in Australia upon the acquisition of sovereignty. The Explanatory Memorandum and the Second Reading Speech are antithetical to such a construction. 126 In Northern Territory v Alyawarr (2005) 145 FCR 442 the Full Court discussed the concepts of recognition and extinguishment as they had emerged from the authorities. The Court said (at [64]): The common law and the NT Act define the circumstances in which recognition will be accorded to native title rights and interests and the conditions upon which it will be withheld or withdrawn. It is a concept which operates in a universe of legal discourse. It derives from the human act by which one people recognises and thereby respects another. By the process, which it names, aspects of an indigenous society's relationship to land and waters are translated into a set of rights and interests existing under non-indigenous laws. The choice of the term "recognition" links it to the normative framework established by the common law and by the Act itself as evidenced in the preamble. Recognition is not a process which has any transforming effect upon traditional laws and customs or the rights and interests to which, in their own terms, they give rise. The term "extinguishment" merely refers to the withholding or withdrawal of recognition of native title rights and interests where the exercise of non-indigenous sovereignty is reflected in legislative or executive acts inconsistent with such recognition. Extinguishment, like recognition, is silent on the rights and interests which arise under traditional law and custom and the relationship which they may reflect between an indigenous society and its country. 127 The distinction between rights and interests possessed under the traditional laws and customs of indigenous people and the rights and interests which exist at common law by reason of their recognition by the common law is fundamental. Neither recognition nor extinguishment affect the distribution of rights and interests within indigenous society according to its laws and customs. If the common law by its own rules is so limited as to be incapable, ab initio, of recognising exclusive native title rights and interests in the sea or the inter-tidal zone, that limitation does not constitute extinguishment. The only proper subject matter of extinguishment is a right or interest which derives its existence from the common law albeit it is via the process of translation referred to as recognition. For "extinguishment" will not affect the rights or interests that exist in the indigenous society whose laws and customs give rise to them. The concept of extinguishment properly understood is premised on the existence of a right or interest "recognised" and so existing at common law and therefore capable of being extinguished. 128 The traditional owners referred in their submissions to the observations in the joint judgment in Western Australia v Ward (2002) 213 CLR 1 at 69 that (at [26]): The term "extinguishment" is most often used to describe the consequences in law of acts attributed to the legislative or executive branches of government. And further (at [91]): The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. 129 It was submitted on behalf of the traditional owners that the act of the British Crown in asserting sovereignty over territory in the exercise of its prerogative meets the statutory definition of an "act" and rights of the public to fish and navigate waters of the sea and tidal waters meet the statutory definition of "interest". The question then becomes whether the consequence for native title of that act recognising that interest is to be disregarded under s 47A of the Native Title Act. They argued that the High Court in Yarmirr 208 CLR 47 concluded that the assertion of sovereignty on terms that carried with it the recognition of public rights of navigation and fishing was not consistent with the continued recognition of a right in the holders of native title to an area of sea to say who may enter the area because (at [100]): At its root, the inconsistency lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights. 130 Mabo v Queensland (No 2) (1992) 175 CLR 1 noted "that a mere change in sovereignty does not extinguish native title" (at 57). The conclusion in Yarmirr HC 208 CLR 1 was foreshadowed in Western Australia v The Commonwealth (1995) 183 CLR 373 (Native Title Case) when it was said that (at 422): Although an acquiring sovereign can extinguish such rights and interests in the course of the act of state acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended. 131 It was submitted for the traditional owners that the reasons of Selway J did not deny that the exercise of the prerogative of the British Crown by which it asserted sovereignty over Australia could not relevantly be an "act" for the purposes of s 47A(2) of the Native Title Act. Nor, it was submitted, didthe reasons deny, as decided in Ward 213 CLR 1, that public rights to fish and navigate recognised by the Act are for the purposes of the Act an "interest". The primary judge however viewed the approach taken by the High Court in Yarmirr HC 208 CLR 1 as involving the "non-recognition" of native title and the existence of a distinction between "non-recognition" on the one hand and "extinction" or "extinguishment" on the other. 132 It was submitted for the traditional owners that the concept of the "non-recognition" of native title rights is not one found in the terms of the Act nor is it a concept identified in High Court authority. The Act provides that native title is to be recognised in accordance with the Act and not able to be extinguished contrary to it. The Act was said to have defined extinguishment in terms of inconsistency with the continued existence or exercise of native title rights. By doing so it addresses the circumstances in which the recognition of native title rights may cease because of extinguishment. Recognition ceases where extinguishment occurs. In Yarmirr HC 208 CLR 1 there could not be, in the words of the joint reasons, a "continued recognition" of native title rights that could not co-exist with the common law. This, it was submitted, is not the language of "non-recognition" and as later said in Ward 213 CLR at [388] the inconsistency identified in Yarmirr HC "extinguished" exclusive native title rights to the sea. 133 It is right to say, as was said in Mabo (No 2) 175 CLR 1, that a change in sovereignty does not extinguish native title. That is consistent with the limited application of extinguishment to native title rights and interests already recognised by the common law. The decision in Yarmirr HC 208 CLR 1, while referring to the limited scope of recognition of native title rights and interests at the point of sovereignty, does not undercut the analysis already undertaken. 134 In our opinion, s 47A does not apply so as to mandate disregard of the omission of the common law to recognise, at the point at which sovereignty was asserted, native title rights and interests conferring exclusive possession in the sea or the inter-tidal zone. In this respect the Native Title Appeal fails. The issue raised by the Commonwealth in its notice of contention concerning the absence of any relevant occupation of the inter-tidal zone for the purposes of s 47A(1)(c) does not fall for decision. The Native Title Appeal - the spouses of clan members 135 The relevant part of the Commonwealth's notice of cross‑appeal claims that Selway J erred in holding that the spouse of a clan member necessarily has a connection with the member's clan estate for the purposes of s 223(1)(b) of the Native Title Act, and in holding that the rights and interests of the spouse are necessarily native title rights and interests as defined in s 223(1). It is said that his Honour should have held that 4.1 spouses of clan members do not, merely by virtue of being spouses, have the requisite connection with his or her spouse's clan estate for the purposes of s 223(1)(b) …; 4.2 spouses of clan members who are merely 'married in' to the clan and have no other relationship with the clan estate under traditional laws and customs, do not have the requisite connection with his or her spouse's clan estate for the purposes of s 223(1)(b) …; and therefore 4.3 spouses of clan members, who are merely 'married in' to the clan and have no other relationship with the clan estate under traditional laws and customs do not hold native title rights and interests in respect of the clan estate of their spouse. 136 These grounds of cross‑appeal are directed to par 3 of the Determination which is in part as follows: The persons who hold the communal, group and individual rights comprising the native title are the Aboriginal persons who: (a) are members of one of the fifteen clans referred to at 2 by virtue of descent through his or her father's father or by virtue of adoption into the clan; … (d) are spouses of persons referred to in sub‑par (a) …. 137 Before Selway J the Commonwealth did not dispute that spouses of clan members had rights in the clan estate of the member under traditional law and custom which enabled them to enter upon and use the resources of the estate. The issue it raised was whether such spouses necessarily had a connection with the land and waters under that law and custom so that s 223(1)(b) was satisfied. It accepted the case propounded by the claimants that the estate of a clan comprises areas of land and waters associated with the mardayin and garma of the clan, and that the basis of the rights possessed by the claimants lies in their rights in or ownership of the mardayin associated with particular areas and the fact that clan members are consubstantial with the mardayin. (The word mardayin means sacred things such as ceremonies, songs, designs and sacred physical objects, all of which are specific to particular areas of land and water, and garma means open or public sacred knowledge.) Relying on the evidence of Professor Morphy, an anthropologist called by the claimants, the Commonwealth claimed that those with a connection to a clan estate are its members and their kin who, under Yolngu law, may expect to be given access to the clan's mardayin, and that those who marry into a clan with which they do not already have a 'kin' relationship do not have an expectation of permission to access and learn about the mardayin of their spouses' clan. It was said to follow from this that spouses who lack any other relationship with the clan estate giving rise to an expectation to access the mardayin of the clan estate do not have the requisite connection for the purposes of s 223(1)(b), and hence do not hold native title in their spouse's clan estate. 138 Selway J (Gumana 141 FCR at [216]) adopted the Commonwealth's description of the "various rights in relation to the claim area, and the traditional mechanisms by which permission might be granted by the relevant clan in relation to its country". So far as is presently material that description is as follows: 135 The rights and interests in relation to land and waters of the claim area which are possessed under the traditional laws and customs are: 135.1 rights of access to, and use of resources on, clan estate areas; and 135.2 rights to control the access to, and use of resources on, clan estate areas. 136 … under the traditional laws and customs of the claimants the following classes of persons have rights and interests in any given estate in the claim area, including in relation to the inter‑tidal zone and rivers: 136.1 clan members: 136.1.1 senior clan members have comprehensive rights of the kind referred to in paragraphs 135[.1] and [135.2] in respect of their estates; 136.1.2 other (non senior) clan members have comprehensive rights of the kind referred to in paragraph 135[.1]. They also have limited rights of the kind referred to in paragraph 135[.2], being only a right to be consulted in relation to decisions about significant uses of their estates, and being obliged to defer to the decision of the senior clan members in any event; 136.2 non‑clan members: … 136.2.4 spouses of clan members: 136.2.4.1 rights in the clan estate of a spouse are of the type referred to in paragraph 135.[1] but subject to a requirement of 'permission' from clan members which is rarely refused (but, in principle, may be refused). There are no rights of the type referred to in paragraph 135[.2]. 139 In relation to the requirement in s 223(1)(b) that there be a connection with the relevant land and waters by the traditional laws and customs, Selway J said (Gumana 141 FCR at [226]): The Commonwealth submitted the connection had to be a spiritual connection: see Ward HCat 85-86; Yannerat [37]. The Commonwealth submitted that some of the rights possessed in accordance with Aboriginal tradition were not relevantly spiritual and consequently those rights did not have a relevant 'connection' with the land or water. In particular the Commonwealth argued that the rights of spouses were not based upon a spiritual connection, but rather upon their relationship to their spouse. In this regard I note that Professor Sansom was not prepared to describe that entitlement as a 'right'. However, given the breadth of the definition of 'interest' in s 253 of the NTA(see Ward HC at 187), I am satisfied that it is a 'right' or 'interest' for the purpose of the NTA. 140 Then at [228] his Honour said: The problem with the Commonwealth submission is that it treats comments in the cases about what is a factual inquiry as reflecting some legal test. It is probably true to say that the connection between the Aboriginal group and its country in accordance with Aboriginal tradition and custom is ordinarily a 'spiritual' connection. It is also true that that connection is usually reflected in the physical occupation of the relevant land. This does not mean, however, that every right or interest enjoyed by every Aboriginal has to have a 'spiritual' aspect to it. 'Cultural' and 'social' connections may also be sufficient: see Yannerat [38] where the majority comment that 'an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land'. Nor does it mean that every right must be reflected in the physical occupation and use of the land. In this case there is no doubt that the relevant spouses have a 'connection' with the land - most of them live on it. Whether or not the right or interest is a 'spiritual' one is not to the point. As the Commonwealth accepted, the right or interest is one enjoyed under the traditions and customs of the Yolngu people. That, combined with the physical and social connection that the spouses undoubtedly have, is sufficient to meet the requirements of the statutory test. 141 In answer to the Commonwealth's submission recorded at [138], which was repeated on the cross‑appeal, the appellants relied on observations of the Full Court in Alyawarr 145 FCR 442. In that case Mansfield J determined that the communal or group rights comprising the native title were held by the members of one or more of seven landholding estate groups recruited by descent, or by adoption or birthplace affiliation, and their spouses. The argument on appeal was that each group had a particular relationship with a part of the claim area but not with the whole of it. However, given the findings of extensive connections across the seven groups in the observance of a common body of traditional law and custom, the Full Court considered that it was correct to treat the relevant title as communal over the whole of the claim area, rather than as severally held by the groups in respect of their particular estates within that area. That was because the observance of a common body of traditional law and custom by the estate group meant that the necessary connection with country was shown to exist at a communal level. 142 In Alyawarr 145 FCR 442 the Northern Territory propounded a 'spouse' argument substantially to the effect of the Commonwealth's contention in this case. The Full Court rejected it. At [117], under the heading "spousal affiliation", the Court said: The Northern Territory argued that under s 223 the native title holders must not only have rights and interests in relation to the determination area under their traditional laws and customs but must also have a connection with the land and waters by those laws and customs. It was accepted that 'rights and interests in relation to the determination area' and 'connection' with it are not necessarily the same thing. So much accords with the general discussion of the 'connection' requirement earlier in these reasons. In the cases of spouses it was said that unless they have a 'connection' with the country any rights and interests they have cannot be determined as native title. However, where as in this case the rights and interests are held communally the relevant connection is that between the community as a whole and the land and waters the subject of the claim. Although it might be said that spousal connection to the community does not bring with it a connection between the spouse and the land, that is not the connection that is relevant in this case. 143 The key to the operation of s 223(1)(b) lies in the requirement that "the Aboriginal peoples … have a connection with the land or waters". The Aboriginal peoples are those who under the introductory words of sub‑s (1) and par (a) have communal, group or individual rights and interests in relation to land and waters. If the peoples have individual rights and interests, the question under par (b) is whether those individuals have the required connection with land or waters. But if the peoples have communal or group rights and interests, the question is whether that community or group has the required connection. The primary judge may have been addressing the wrong question when he said that spouses have a connection with the land because most of them lived on it. However, the answer to what we consider to be the correct question is not in doubt. Nor could his Honour have considered it to be. The Commonwealth did not contend that the relevant connection did not exist between the community, of which the spouses formed part, and the land and waters. Hence its attempt to distinguish Alyawarr 145 FCR 442 on the ground that in the present case the rights and interests were not held communally. 144 In their application the appellants contended for "a communal native title in the area claimed": Sch A par 1. In Sch E par 6 they asserted that: The native title rights and interests are held communally by all the claimants, albeit that: (a) the capacity of individuals to exercise these rights and interests will vary according to a variety of circumstances, for example age, gender, and physical and mental capacity; (b) some groups or sub‑groups are more closely associated with specific areas of the area claimed; (c) by traditional laws and customs, responsibility for the area claimed is exercised by different individuals in different ways; (d) the rights of an individual, group or sub‑group may, under the traditional laws acknowledged and traditional customs observed by them, be qualified as to place, time, circumstance, purpose, permission or any other factor. 145 The Commonwealth admits the allegations in the statement of claim that: · the claim group comprises a set of interrelated and intermarrying patrilineal clans that are a part of Yolngu society, and · each claimant is a member of one or other of the clans making up the claim group.

As to the allegation that the claimants are "collectively the Aboriginal persons who hold native title rights and interests in relation to the claim area", the Commonwealth "admits that the claimants … may be included in the group of Aboriginal peoples who have native title rights and interests in relation to the claim area", but otherwise does not admit the allegation. While there is no distinct admission that the claimants collectively hold the rights and interests in the claim area, the Commonwealth's pleading appears to reserve its position that there may be others, apart from the appellants, who have rights and interests, rather than assert that the appellants do not have a collective entitlement. In any event, neither the pleadings nor Selway J's reasons disclose any claim by the Commonwealth of the type that was a live issue in Ward 213 CLR 1, Neowarra v Western Australia [2003] FCA 1402 and Alyawarr 145 FCR 442, namely that the claim, if it were to succeed, should be clan and not group or community based. 146 Selway J (Gumana 141 FCR at [5]) said that the Aboriginal inhabitants of the area of north‑east Arnhem Land (where the claim area is located): form a distinct cultural group with similar languages, traditions and customs. They are generally described as the 'Yolngu' people. That word … is used in these reasons to refer to that cultural group. The claimants are all Yolngu people. The clans they represent are identified by Yolngu tradition.

His Honour then referred to various agreements and concessions made by the parties in the course of the proceeding. At [35] he noted that the respondents conceded that the appellants had a native title right of exclusive possession to that part of the claim area to the landward of the high water mark excluding rivers and estuaries that are subject to the tides. His Honour recorded at [36] that the appellants conceded that they could not sustain their claim to exclusive possession of the area to the seaward of the low water mark. All they could obtain in that area was a determination of non‑exclusive rights of the type identified in Yarmirr HC 208 CLR 1. His Honour said at [38] that he understood that there was no dispute that the appellants "could and should obtain a determination in relation to the claim area to the seaward of the low water mark in the same general terms as the determination made in Yarmirr HC". He then said at [42] that as a result of agreements and concessions, the contested issues were "largely limited to the inter‑tidal zone and to the djalkiri [spiritual] areas". The djalkiri areas did not feature in the appeal. His Honour then listed the five 'live' native title issues that were in need of resolution. None of them relates to the communal nature of the claim. 147 It is apparent from the matters recorded at [147] that, except as to the inter‑tidal zone (and the presently immaterial djalkiri areas), the Commonwealth and the Northern Territory accepted the appellants' communal claim. The claim in relation to the inter‑tidal zone was contested on grounds that had nothing to do with the communal basis on which it was put forward. 148 Selway J's description of the appellants' rights and interests is to be found in an appendix to his reasons. As we have said, the anthropologist called by the appellants was Professor Morphy. The Northern Territory tendered the report of Dr Cane and the Commonwealth called Professor Sansom. His Honour accepted Professor Morphy's evidence which, he said at [171] was "entirely supported by the Aboriginal evidence". Furthermore, it was largely accepted by the other anthropological experts. As his Honour explained at [173], the result of a "hot tub" discussion between the experts was an agreement as to certain propositions which was adopted by Professor Morphy as part of his evidence. The appendix contains the propositions. On the basis of those propositions his Honour found at [202] that: · the relevant claimant clans had the same system of traditions, laws and customs as at 1788 as they have today · they have observed those traditions and customs continuously since that date · the rights and interests that the clans enjoy today pursuant to those traditional laws and customs are the same rights and interests that they enjoyed in 1788 · they have enjoyed those rights and interests continuously since then. 149 The first of those findings is not that each clan had its own system of traditions, laws and customs. It is that all the clans had the same system. The anthropological propositions make this clear. The following propositions, with emphasis added, were accepted by each expert: · In the present day there is, common to the claimants, a body of laws acknowledged and customs observed by them · This body of laws and customs is not unique to the claimants; it is also acknowledged and observed, with regional variations by people of the Yolngu 'cultural block' · Under that body of laws and customs, each of the claimants is a member of a particular clan … · Under the traditional laws acknowledged and traditional customs observed by the claimants the estate of a clan comprises the country and areas of land and waters ('estate areas') associated with the mardayin and garma of the clan and the constituent properties of the mardayin and garma · By the traditional laws acknowledged and traditional customs observed by them the claimants have rights, interests and responsibilities in relation to the whole of the land and waters of the claim area through the mardayin and garma of the clans associated with the land and waters in the claim area · The whole of the land and waters of the claim area is made up of the estate areas of the clans making up the claim group · Under the traditional laws acknowledged and traditional customs observed by the claimants, members of clans have rights and interests in the estate of their own clan and have reciprocal rights and interests in the estates of other clans to which they have close kinship relations, including: (a) their mother's clan; (b) their mother's mother's clan; (c) their spouse's clan; and such reciprocal rights and interests extend to members of other clans; (d) with neighbouring estate areas; (e) with related wangarr (ancestral creator being)affiliations and ritual authority; and such reciprocal rights and interests in the estates of other clans are subject to the rights and interests of the members of those other clans. 150 Conformably with Selway J's findings set out at [149] and the anthropological propositions at [150], the Determination itself is not clan based but records a communal entitlement. Thus paragraph 1.1 determines that native title exists in the areas of land and waters on the map in Schedule B and described in Schedule A to the Determination. The map shows an undifferentiated claim area, without division into clan estates. There was in evidence a clan estate map showing the various estates by different markings and colours. There was thus a conscious decision not to use that map in the Determination. The metes and bounds description (Schedule A) makes no reference to clan boundaries. The Determination then divides the determination area into three parts: the land and inland waters, the inter‑tidal zone and the outer waters; again with no reference to clan estates. Under the heading "The native title holders", the Determination states that the whole of the determination area comprises parts of the estates of the fifteen named clans. The persons who hold the rights comprising the native title in the determination area are described as the Aboriginal persons who are members of one of the fifteen clans, those who have specified kinship connections to one or more of the clans, the spouses of clan members, and those with non‑descent based connections or spiritual affiliations in or related to the determination area. 151 It is apparent from what we have said at [145] to [151] that: · the appellants pleaded a communal claim · in its defence the Commonwealth did not contest the communal nature of the claim, pleading rather that there may be others with whom the appellants might have to share a collective entitlement · the pleadings do not raise a case that if the appellants were to succeed, they could do so only on a non‑communal basis · Selway J's record of the parties' agreements and concessions discloses that the Commonwealth was content for the appellants to have a land‑based determination on the basis they propounded · the anthropological propositions, accepted by Selway J, reflect and support the appellants' communal claim · Selway J's findings recorded at [149] reflect the appellants' communal claim · the Determination records a communal entitlement. 152 In Alyawarr 145 FCR at [79] to [86] the Full Court observed that the determinations that may be made under s 225 of the Native Title Act cover a range of possibilities which depend upon the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title rights and interests claimed. The Court pointed to Sampi v Western Australia [2005] FCA 777 as an example of a case where members of the relevant society enjoyed "communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans": at [79]. In that case the traditional laws and customs "as explained in the evidence, supported a principle of communal ownership". 153 The Alyawarr Full Court selected De Rose v South Australia (No 2) (2005) 145 FCR 290 as an illustration of a society constituting a cultural bloc whose members were dispersed in groups over a large arid or semi‑arid area. It was pointed out at [80] that in such a case "an inference of communal ownership … may be difficult if not impossible to draw". It was accepted in De Rose (No 2) 145 FCR 290 that a determination could be made in favour of individuals or small groups who held native title under the traditional laws and customs of a society or community of which they are part. As the Full Court in Alyawarr 145 FCR 442 observed, each case will depend on its own facts. 154 The Full Court in Alyawarr then referred to several "multiple group" determinations. In Ward v Western Australia (1998) 159 ALR 483 Lee J found the Miriuwung and Gajerrong groups, "which were territorially adjacent and shared economic and social links, could be regarded as a composite community with shared interests": Alyawarr 145 FCR at [81]. On appeal the Full Court rejected a contention that the evidence did not show that the two groups were a single community. Although there were witnesses whose full array of rights only existed in particular estate areas, this did not preclude the existence of "a Miriuwung and Gajerrong community which acknowledges and observes traditional laws and customs under which members of the community enjoy differing arrays of rights within and outside their particular family or estate country": Western Australia v Ward (2000) 99 FCR 316 at [239]. As the Full Court in Alyawarr 145 FCR 442 said (at [81]): What this says, relevant to the present case, is that a composite community of estate holding groups may comprise a community which enjoys communal ownership of the native title rights and interests albeit there may be intramural allocations between particular family or clan groups or other sub‑sets of the community. 155 The passage just quoted, and that of the Full Court in Ward 99 FCR at [239], are apposite descriptions of the evidence in the present case. 156 Yarmirr TJ 82 FCR 533 was another multiple group case. The applicants were members of five different estate groups. Although each group asserted traditional rights in respect of discrete areas of land and sea, their members saw themselves as a single community and brought their application on that basis. Olney J made a global determination that the native title was held by the members of the several clans. 157 In Neowarra [2003] FCA 1402 Sundberg J rejected the State's contention that native title should be recognised on a dambun or perhaps language level, and found that the evidence identified the relevant society as the Ngarinyin, Wunambal and Worrorra people. His Honour rejected the State's dambun based submission on the ground that it would not accommodate evidence that close relatives of dambun members have rights and interests in the dambun estate. That has relevance to the present case, as appears from the final anthropological proposition at Gumana 141 FCR at [150]. 158 Finally, by way of contrast with the multiple group determination, the Alyawarr Full Court referred to Lardil Peoples v Queensland [2004] FCA 298. There the evidence did not indicate that any of the four groups had rights or interests in the traditional territories of another group. Cooper J made a determination that each group held native title in respect of a defined area of land. 159 What emerges from the discussion at [153] to [159] is the flexible approach adopted by the courts arising out of the flexible language of s 223(1) of the Native Title Act - whether the rights and interests found are "communal, group or individual", and of s 225(a) - who are the persons holding the "common or group rights". The answer will depend upon the evidence. 160 In the present case, Selway J did not expressly say that the rights and interests he found to exist were held for the claimants on a communal basis. Nor does the Determination expressly so state, although it does in [3] speak of the persons who hold the "communal, group or individual rights and interests". That, however, would seem to be but a recitation of those words in the definition of 'native title' in s 223(1). Nevertheless, the matters listed at [152], the findings referred to at [149], the anthropological propositions at [150], the structure and language of the Determination, and the fact that Mansfield J said the Determination was meant to reflect the reasons of Selway J, make it clear that Selway J intended the rights and interests to be held communally by the appellants, and that Mansfield J so determined. Thus, in accordance with Alyawarr 145 FCR 442, there is no occasion to enquire whether there is a connection between a clan member's spouse and the land and waters of the claim area. The relevant question is whether there is a connection between the community as a whole and the land and waters. Clearly there is, and the Commonwealth did not contend to the contrary. Rather, as we have said, it sought to escape the clutches of Alyawarr 145 FCR 442 by treating the present case as involving a non‑communal title. That attempt fails. 161 The Commonwealth did not seek to persuade us that Alyawarr 145 FCR 442 was, in relevant respects, clearly erroneous. Cf what we have said at [61]. In any event, we do not think Alyawarr 145 FCR 442 clearly erroneous. 162 The Commonwealth's ultimate formulation of what is required to constitute "connection" in s 223(1)(b) was that, at least in most cases, the Aboriginal peoples must have responsibilities, under traditional law and custom, in relation to the land or waters in question. The elaborate process of reasoning by which it arrived at that formulation need not detain us. In view of the "communal" facts of this case, we do not need to decide whether it is applicable in a "non‑communal" case. 163 It is a curiosity of the Commonwealth's cross‑appeal that many of the anthropological propositions with which its expert agreed, including vital "communal" propositions that are described in the appendix as being propounded by the Commonwealth (and agreed to by the three experts), lead directly to the failure of the cross‑appeal.

The Commonwealth and Northern Territory cross appeals - control of access as against other Aboriginal persons 164 Paragraph 7 of the Determination describes the rights and interests of the native title holders in the inter‑tidal zone and outer waters: (a) the right to hunt, fish, gather and use resources within the area (including the right to hunt and take turtle and dugong) for personal, domestic or non‑commercial exchange or communal consumption for the purposes allowed by and under traditional laws and customs; (b) the right to access, use and travel over and visit any part of the area in accordance with and for the purposes allowed by and under their traditional laws and customs, including: (i) to access the area for religious, spiritual or cultural purposes or to engage in religious, spiritual or cultural practices; (ii) to visit, have access to, and maintain sites, places and areas of religious, spiritual or cultural importance or significance within the area; (c) the right to make decisions about access to and use and enjoyment of the area by Aboriginal people who recognise themselves as governed by the traditional laws and customs acknowledged and observed by the native title holders. 165 The Commonwealth and the Northern Territory have cross‑appealed against sub‑par (c) of par 7. The Commonwealth's cross‑appeal claims that: The Court erred in failing to hold that, where native title rights to control access to and use of an area are not recognised, no native title rights to make decisions which have the effect of controlling use and enjoyment of the area by other people (whether Aboriginal or non‑Aboriginal) can be recognised. The Northern Territory's cross‑appeal claims that: Mansfield J erred in holding that a right to make decisions about access to and use and enjoyment of the area by Aboriginal people who recognize themselves as governed by the traditional laws and customs acknowledged and observed by the native title holders is a native title right capable of inclusion in a determination of native title where the native title rights as determined do not amount to possession, occupation, use and enjoyment of the area to the exclusion of all others. Although the verbiage differs, the essential point is the same in each cross‑appeal. The cross‑appellants seek the deletion of par 7(c) from the Determination. 166 Although the primary judge did not formulate a determination, at [275] he made the following "comment" that is relevant for present purposes: (d) In general terms the native title rights of the native title holders as against third parties is [sic]: (i) As to the 'land' other than the inter-tidal zone (meaning the area of the foreshore and the area of rivers and estuaries affected by the ebb and flow of the tides) - a right of exclusive possession: (ii) As to the sea and the inter-tidal zone - rights similar to those identified in Yarmirras further explained in Lardil. 167 In the body of his reasons, under the heading Recognition by the Common Law - the Inter‑tidal zone, Selway J said (Gumana 141 FCR at [232]‑[234]): … the only aspect of the applicants' traditional rights which was said not to be recognised by the common law in 1788 was the claimed exclusive right of the clans to occupy the waters (including the inter-tidal zone) of the claim area. Given the concessions made by the parties … I am satisfied that the applicants' exclusive rights to occupy the area to the seaward of the low water mark was not recognised by the common law as at 1788 because that right was inconsistent with the public rights to fish and to navigate. Although not subject to agreement, the same conclusion necessarily follows in relation to the tidal waters to the landward of the low water mark: see Lardilat [166]-[167]. 168 In his reasons for orders, Mansfield J said (Gumana v Northern Territory (No 2) [2005] FCA 1425 at [72]): The applicants in their proposed par 7(c) seek to control access to certain sites in relation to those Aboriginal people who are governed by traditional laws and customs. It is correct that no such right was recognised in either the Yarmirr determination or the Lardil determination. However, the amended application before the Court sought the right to speak for and to make decisions about the use and enjoyment of the claim area. I accept that thereafter there was limited reference in submissions to the particular claimed right, and that (as his Honour found at [239]), there was no evidence directed particularly to the claimants having any separate rights distinct from the right of exclusive possession, or insufficient evidence to satisfy him that such separate rights existed. … However, I regard the proposed right to be declared as an aspect of the claimed right to exclusive possession to those parts of the claim area, subsequently qualified by the concessions made by the parties before his Honour. 169 His Honour then referred to Ward 213 CLR 1 at [52] and [192] where it was said that a native title right to control access to or use an area is extinguished by the grant of a pastoral lease because the grant is inconsistent with so much of the native title rights and interests as amounts to the right to control access to the land the subject of the grant, so that any traditional right to control access no longer exists. His Honour noted that this approach was recognised in the non‑exclusive rights referred to in Lardil [2004] FCA 298 and Yarmirr HC 208 CLR 1. He continued (at [74]): In my view, Selway J had that circumstance in mind in addressing the nature and content of the proposed native title rights. A right to make decisions about access to and use and enjoyment of an area by Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by native title holders was ultimately rejected in Attorney-General (NT) v Ward. In my view the proposed par 7(c) is not fully consistent with his Honour's determination and should be permitted to remain only on the basis that it is expressed to refer to those Aboriginal people who recognise themselves as governed by those traditional laws and customs. It cannot operate more extensively. A similar right was recognised in De Rose v State of South Australia (No 2) [2005] FCAFC 110 at [168]-[170]. 170 There are aspects of the reasoning set out at [169] and [170] with which we have difficulty. However, on the view we take of this issue they need not be pursued. We can state shortly why we have concluded that par 7(c) cannot remain in the Determination. It is settled by the highest authority that 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 s 223(1)(c): Yarmirr 208 CLR 1. Aboriginal people are part of the public, whether they do or do not recognise themselves as governed by the traditional laws and customs acknowledged and observed by the appellants, and accordingly have, since the assertion of sovereignty, had the right to fish in and navigate the inter‑tidal zone and outer waters. Accordingly s 223(1)(c) precludes the existence of the "right to make decisions about access to and use and enjoyment of the inter‑tidal zone and outer waters" in par 7(c) of the Determination. 171 In the passage quoted (Gumana [2005] FCA 1425 at [170]) Mansfield J said that a "similar right was recognised" in De Rose (No 2) 145 FCR 290. However the right there did not refer to "access" to the land. Further, as appears from [168] to [170] of that case, although one party unsuccessfully argued that the 'similar right' might be inconsistent with the right of access granted to Aboriginal people by s 47 of the Pastoral Land Management and Conservation Act 1989 (SA), it was, unsurprisingly, not argued that the right was inconsistent with the public right to fish and navigate, since the claim area there did not include inter‑tidal zone or outer waters. The two issues of direct relevance here were thus not addressed in that case, and accordingly De Rose (No 2) 145 FCR 290 does not assist the native title claimants. 172 In Alyawarr 145 FCR at [141] to [148] the Full Court deleted sub‑pars (e) and (f) of the determination there in question. These were (e) the right to make decisions about access to the land and waters and (f) the right to make decisions about the use and enjoyment of the land and waters and the subsistence and other traditional resources thereof, in each case by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters. After referring to Neowarra [2003] FCA 1402 at [475] and [477] and Ward 213 CLR 1 in the High Court at [62], [192] and [194], the Full Court said (at [148]): Having regard to what was said in the High Court it seems that the right to control access cannot be sustained where there is no right to exclusive occupation against the whole world. The underlying rationale for that conclusion is that particular native title rights and interests cannot survive partial extinguishment in a qualified form different from the particular native title right or interest that existed at sovereignty. The rights set out in para 3(e) and (f) of the determination do not resemble the holistic right of exclusion which went with exclusive possession and occupation at the time of sovereignty. As submitted by the Northern Territory, there is no evidence in the present case that at sovereignty there existed two traditional rights to make decisions about access to and use and enjoyment of the sea and inter‑tidal zone, one exercisable only against those who were governed by the same traditional laws and customs as the then native title holders and another exercisable against other persons. There was only the one holistic right, and that is the right that is to be compared with the public right to fish and navigate. See also Yarmirr in the High Court, 208 CLR at [94] to [98]. Conclusion on the Native Title Appeal 173 The traditional owners' appeal is dismissed. The Commonwealth's spouse cross‑appeal is dismissed. The Commonwealth's and Northern Territory's access cross‑appeals are allowed.

I certify that the preceding one hundred and seventy three (173) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Finn and Sundberg.

Counsel for the Appellants: Mr B Walker SC and Mr S Glacken Solicitor for the Appellants: Northern Land Council

Counsel for the First Respondent in NTD32 of 2005 and NTD33 of 2005 and the Second Respondent in NTD33 of 2005: Mr V Hughston SC and Ms S Brownhill Solicitor for the First Respondent in NTD32 of 2005 and NTD33 of 2005 and the Second Respondent in NTD33 of 2005: Solicitor for the Northern Territory Counsel for the Second Respondent in NTD32 of 2005 and the Intervenor in NTD33 of 2005: Ms R Webb QC and Mr G Laughton Solicitor for the Second Australian Government Solicitor Respondent in NTD32 of 2005 and the Intervenor in NTD33 of 2005: Mr G Hiley QC and Mr G Kennedy Counsel for the Third Respondent in NTD 32 and 33 of 2005: Cridlands Lawyers Solicitor for the Third Respondent:

Date of Hearing: 14 and 15 August 2006

Date of Judgment: 2 March 2007

NORTHERN TERRITORYDISTRICT REGISTRY NTD 6035 OF 2002

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, MARRAKULU 1, MARRAKULU 2, WANAWALAKUYMIRR MARRAKULU, DJARRWARK 1, DJARRWARK 2, AND NURRURAWU DHAPUYNGU (DHURILI/DURILA) GROUPS

AMATEUR FISHERMENS' ASSOCIATION OF THE NORTHERN TERRITORY

JUDGE: MANSFIELD J DATE OF ORDER: 11 OCTOBER 2005

There be a determination of native title in the terms of the determination set out below.

An Aboriginal corporation whose name is to be provided within 12 months, or such other time as the Court may allow, is to:

(a) be the prescribed body corporate for the purposes of subs 57(2) of the Native Title Act 1993 (Cth) ('the Act);

(b) perform the functions outlined in subs 57(3) of the Act after becoming a registered native title body corporate.

Each party and the intervenor bear their or its own costs of the proceeding.

1.1. Native title exists in the areas of land and waters depicted on the map comprising Schedule B and described in Schedule A hereto ('the determination area'), the determination area being made up of:

(a) the areas described in item 1(a) of Schedule A ('the land and inland waters');

(b) the areas described in item 1(b) and (c) of Schedule A ('the inter-tidal zone'); and

1.2. In the event of inconsistency between Schedules A and B, Schedule A prevails.

1.3 In this determination, unless the contrary intention appears:

(1) 'land' and 'waters' bear the meanings given by s.253 of the Act;

(2) 'low water mark' and 'high water mark' refer to the mean low water mark and the mean high water mark;

(3) 'resources' does not include minerals, petroleum, natural gas and any other natural resource to the extent to which native title has been extinguished or affected pursuant to valid laws of the Northern Territory and Commonwealth of Australia.

The whole of the determination area comprises parts of the estates of the eight Yirritja Moiety clans and the seven Dhuwa Moiety clans known as:

(a) Yirritja moiety clans: (1) Yarrwidi Gumatj, (2) Manggalili, (3) Gumana Dhalwangu, (4) Wunungmurra (Gurrumuru) Dhalwangu, (5) Dhupuditj Dhalwangu, (6) Munyuku, (7) Yithuwa Madarrpa, (8) Manatja.

(b) Dhuwa moiety clans: (1) Gupa Djapu, (2) Dhudi Djapu, (3) Marrakulu 1, (4) Marrakulu 2, (5) Djarrwark 1, (6) Djarrwark 2, (7) Galpu. 3. The persons who hold the communal, group and individual rights comprising the native title are the Aboriginal persons who: (a) are members of one of the fifteen clans referred to at 2 by virtue of descent through his or her father's father or by virtue of adoption into the clan; (b) are the guardians of or successors to the rights of a clan and its members in relation to a clan's estate; (c) have kinship connections to one or more of those clans by virtue of the fact that his or her mother (ngandi) or mother's mother (mari) is or was a member of such clan; (d) are spouses of persons referred to in sub-par (a); or (e) have non-descent based connections to part or parts of the determination area by virtue of: (1) his or her place of spirit conception being in the determination area; (2) being a member of a clan (other than one of the fifteen clans referred to at 2), which clan has one or more estate areas adjacent to one or more of the estate areas that comprise the determination area and that person has relations with one or more of the fifteen clans and their estates through kinship or marriage; or (3) related spiritual (wangarr) affiliations or ritual authority in or related to the determination area; (4) being a member of one of the clans known as Ngaymil, Datiwuy, Guyula Djambarrpuyngu and Marrangu who are at times entitled to access places in the determination area associated with ceremony and known as ringgitj places. Native Title Rights in Land and Inland Waters 4. In relation to the land and inland waters, the native title rights and interests that are possessed under the traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, possession, occupation, use and enjoyment to the exclusion of all others. Other Interests in Land and Inland Waters 5. The other interests in relation to the land and inland waters are: (a) the interests of the Arnhem Land Aboriginal Land Trust under the two deeds of grant dated 30 May 1980 made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); (b) the rights of a holder of a permit granted under Part II of Aboriginal Land Act 1978 (NT) and the rights of a person to otherwise enter or remain on or use the area permitted by ss.69-71 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), Part II of the Aboriginal Land Act 1978 (NT) and Parts IV and V of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (c) the rights and interests of Telstra Corporation Limited: (1) as the owner and operator of telecommunications facilities installed within the determination area, being, the Warralwuy Radio Site situated on Northern Territory Portion 5748(A), the Durabudboi Radio Site situated on Northern Territory Portion 5752(A), and certain customer radio terminals and as the holder of a carrier licence under the Telecommunications Act 1997 (Cth), including the right for its employees, agents or contractors to have access to the telecommunications facilities for the purposes of maintaining and operating the telecommunications facilities; and (2) pursuant to the lease to Telstra Corporation Limited from the Arnhem Land Aboriginal Land Trust in relation to NT Portion 5748(A), registered 31 May 2000, in respect of the Warralwuy Radio Site. (d) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties; (e) the interests of persons to whom valid and validated rights and interests have been: (1) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or (2) otherwise conferred by statute. 6. The relationship between the native title rights and interests and the other interests in relation to the land and inland waters is as follows: (a) the other interests and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests, but do not extinguish them, and the existence and exercise of the native title rights and interests do not prevent the doing of the activity; (b) to the extent that the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other interests during the currency of those interests; (c) if those other interests are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have effect. Native Title Rights in the Inter-Tidal Zone and Outer Waters

In relation to the inter-tidal zone and outer waters the native title rights and interests that are possessed under the traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the rights and interests by the native title holders, rights of access to, and use of resources in or on, clan estate areas, being: (a) the right to hunt, fish, gather and use resources within the area (including the right to hunt and take turtle and dugong) for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed by and under their traditional laws and customs; (b) the right to access, use and travel over and visit any part of the area in accordance with and for the purposes allowed by and under their traditional laws and customs, including: (i) to access the area for religious, spiritual or cultural purposes or to engage in religious, spiritual or cultural practices; (ii) to visit, have access to, and maintain sites, places and areas of religious, spiritual or cultural importance or significance within the area; (c) the right to make decisions about access to and use and enjoyment of the area by Aboriginal people who recognise themselves as governed by the traditional laws and customs acknowledged and observed by the native title holders.

The native title rights and interests do not confer on the native title holders possession, occupation, use and enjoyment of the inter-tidal zone and outer waters to the exclusion of others.

The other interests in the inter-tidal zone are:

(a) the interests of the Arnhem Land Aboriginal Land Trust under the two deeds of grant dated 30 May 1980 made under theAboriginal Land Rights (Northern Territory) Act 1976 (Cth);

(b) the rights of a holder of a permit granted under Part II of the Aboriginal Land Act1978 (NT) and the rights of a person to otherwise enter or remain on or use the area permitted by ss.69-71 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), Part II of the Aboriginal Land Act 1978 (NT) and Parts IV and V of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);

(c) the rights of the persons holding licences to fish granted under the Fisheries Act 1988 (NT) and the regulations made thereunder or any other legislative scheme for the control, management and exploitation of the living resources within the area;

(d) the right of members of the public to fish otherwise than under the rights specified at (c) above; (e) the rights of members of the public to navigate; (f) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties; (g) the interests of persons to whom valid and validated rights and interests have been: (1) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or (2) otherwise conferred by statute.

The relationship between the native title rights and interests and the other interests referred to at 9(a) (b), (c) (f) and (g) in relation to the inter-tidal zone is as follows:

(a) the other interests and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests, but do not extinguish them, and the existence and exercise of the native title rights and interests do not prevent the doing of the activity;

(b) to the extent that the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other interests during the currency of those other interests;

(c) if those other interests are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have effect to that extent.

The relationship between the native title rights and interests and the other interests referred to at 9(d) and (e) in relation to the inter-tidal zone is as follows:

(a) the other interests co-exist with the native title rights and interests;

(b) the determination does not affect the validity of those other interests;

(a) the rights of the persons holding licences to fish granted under the Fisheries Act 1988 (NT) and the regulations made thereunder or any other legislative scheme for the control, management and exploitation of the living resources within the area;

(b) the right of members of the public to fish otherwise than under the rights specified at (a) above;

(c) the right of members of the public to navigate; (d) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties; (e) the interests of persons to whom valid and validated rights and interests have been: (1) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or (2) otherwise conferred by statute

The relationship between the native title rights and interests and the other interests referred to at 12 in relation to the outer waters is as follows:

(a) the other interests co-exist with the native title rights and interests;

(b) the determination does not affect the validity of those other interests;

The native title rights and interests are subject to and exercisable in accordance with the valid laws of the Northern Territory of Australia and the Commonwealth of Australia.

There are no native title rights and interests in:

(a) minerals as defined in s.2 of the Minerals Acquisition Act 1953 (NT);

(b) petroleum as defined in s.5 of the Petroleum Act (NT);

(c) prescribed substances as defined in s.5 of the Atomic Energy Act 1953 (Cth) and s.3 of the Atomic Energy (Control of Materials) Act 1946 (Cth).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. Schedule A

The determination area is portrayed by way of illustration on the map contained in Schedule B and comprises all that land and waters bounded by the bold lines on the map, being:

(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;

(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.

(1) The south-western point of the boundary commences at a point on the coastline of Jalma Bay at about 135.56.19e and -13.02.33n and thence proceeds in a generally south easterly direction along the low water mark of the coastline of Jalma Bay until it reaches the southern most point at low water mark at Grindall Point.

(2) From Grindall Point the boundary proceeds generally in an easterly direction across the bight of Grindall Bay to the southern most point of Round Hill island at low water mark, and thence continues across the bight of Grindall Bay until it reaches the southern most point at low water mark at Point Blane.

(3) From Point Blane the boundary continues in a generally easterly direction across the bight of Myaoola Bay until it reaches the southern most point at high water mark at Cape Shield at about 136.19.58e and -13.19.34n.

(4) From Cape Shield the boundary follows generally the high water mark of the coastline of Myaoola Bay until it reaches a point in Myaoola Bay at about 136.21.20e and -13.03.07n and then proceeds inland generally in a north - westerly direction to a point near Wyonga River at about 136.19.41e and - 12.55.34n.

(5) From the point near Wyonga River the boundary proceeds inland generally in a south-westerly direction to a point near Gan Gan at about 135.56.19e and -13.02.33n, and from there the boundary proceeds inland generally in a southerly direction until it reaches the south-western point of the boundary of the determination area on the coastline of Jalma Bay at about 135.56.19e and -13.02.33n.

3 The low water mark boundary lines of the determination area correspond with the low water mark boundary lines specified in two deeds of grant of fee simple made under ss.10 and 12 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) held by the Arnhem land Aboriginal Land Trust, namely:

(a) the Deed of Grant encompassing the mainland in the claim area known as the Arnhem Land (Mainland) Deed of Grant (the Mainland Grant); (b) the Deed of Grant encompassing islands in the claim area known as the Arnhem Land (Islands) Deed of Grant (the Islands Grant); registered in Volume 23, Folios 135 and 136 of the register maintained by the Registrar General of the Northern Territory. Without limiting the low water mark boundary lines so identified, they may be described as:

(i) in relation to the Mainland Grant, a line along the low water mark of the seacoast of the determination area but excluding from the said line those parts along the low water mark of all intersecting rivers, streams and estuaries inland from a straight line joining the seaward extremity of each of the opposite banks of each of the said rivers, steams and estuaries so that the aforesaid boundary line follows that part below low water mark of each of the aforesaid straight lines across each of the aforesaid rivers, streams and estuaries;

(ii) in relation to the islands grants, a line along the low water mark of Round Hill Island.

Crown Lands Ordinance 1927(NT)

Aboriginals Ordinance 1918(NT)s 19

Welfare Ordinance 1953(NT)ss 44

Social Welfare Ordinance 1964(NT)s 17.

Northern Territory (Self Government) Act 1978(Cth)

Native Title Amendment Act 1998(Cth)

Part II of Aboriginal Land Act 1978(NT)

Land Rights (Northern Territory) Act 1976(Cth)

Minerals Acquisition Act 1953(NT)

Gumana v Northern Territory of Australia [2007] FCAFC 23

ABORIGINES - land rights - grant of fee simple estate to land trust - effect of grant in inter-tidal zone - whether exclusive possession - whether excludes power of Northern Territory Director of Fisheries to grant fishing licences in area NATIVE TITLE - inter-tidal zone - non-recognition at sovereignty of exclusive rights of possession in inter-tidal zone - whether a form of extinguishment - whether amenable to operation of s 47A of Native Title Act 1993 (Cth) mandating conditional disregard of extinguishment - native title holders - membership of group - spouses of clan members - access - non-exclusive possession - whether right to control access by other Aboriginal people Aboriginal Land Rights (Northern Territory) Act 1976 Judiciary Act 1903 (Cth) Fisheries Act 1988 (NT) Native Title Act 1993 (Cth) s 47A Aboriginal Land Act 1978 (NT) Northern Territory (Self Government Act) 1978 (Cth) Coastal Waters (Northern Territory Powers) Act 1980 (Cth) Northern Territory Acceptance Act 1910 (Cth) Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 cited Gumana v Northern Territory (2005) 141 FCR 457 cited Commonwealth v Yarmirr (2000) 101 FCR 171 not followed Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141 cited Risk v Northern Territory (2002) 210 CLR 392 considered Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 cited Haruo Kitakoka v Commonwealth (unreported, NT Supreme Court, No 14 of 1937) cited Wik Peoples v Queensland (1994) 49 FCR 1 cited SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 cited Yarmirr v Northern Territory (No 2) (1988) 82 FCR 533 not followed Yanner v Eaton (1999) 201 CLR 351 cited Yarmirr v Northern Territory of Australia [2000] FCA 48 cited Commonwealth v Yarmirr (2001) 208 CLR 1 applied Fejo v Northern Territory (1998) 195 CLR 96 cited Wik Peoples v Queensland (1996) 187 CLR 1 cited Attorney-General v Chambers (1854) 4 De G M & G 206 cited Blundell v Catterall (1821) 5 B & Ald 258 cited Fowley Marine (Emsworth) Ltd v Gafford [1967] 2 QB 808 cited Svendsen v State of Queensland [2002] 1 Qld R 216 cited Cooper v Phibbs (1867) LR 2 HL 149 cited Harper v Minister for Sea Fisheries (1989) 168 CLR 314 cited Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 cited Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 cited Potter v Minahan (1908) 7 CLR 277 cited Malika Holdings Pty ltd v Stretton (2001) 204 CLR 290 cited Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 cited R v Janceski (2005) 64 NSWLR 10 cited Coco v The Queen (1994) 179 CLR 427 cited Daniels Corporation v Australian Competition and Consumer Commission (2002) 213 CLR 543 cited Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited Al Kateb v Godwin (2004) 219 CLR 562 cited R v Secretary of State for Home Department; Ex parte Simms [2002] 2 AC 115 cited CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 cited Anderson v Alnwick District Council [1993] 1 WLR 1156 cited O'Neill v Mann (2000) 175 ALR 742 cited Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 cited Lipohar v The Queen (1999) 200 CLR 485 cited Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 cited Grant v Henry (1894) 21 R 358 cited Northern Territory v Alyawarr (2005) 145 FCR 442 followed Western Australia v Ward (2002) 213 CLR 1 cited Mabo v Queensland (No 2) (1992) 175 CLR 1 cited Western Australia v The Commonwealth (1995) 183 CLR 373 cited Neowarra v Western Australia [2003] FCA 1402 considered Sampi v Western Australia [2005] FCA 777 considered De Rose v South Australia (No 2) (2005) 145 FCR 290 considered Ward v Western Australia (1998) 159 ALR 483 considered Western Australia v Ward (2000) 99 FCR 316 cited Lardil Peoples v Queensland [2004] FCA 298 considered Gumana v Northern Territory [2005] FCA 1425 cited Gray and Gray, Elements of Land Law, 2.2 ff (4th Ed 2005) Megarry & Wade, The Law of Real Property, 3-041 ff (6th Ed, 2000) Bonyhady. The Law of the Countryside, Ch 8 (1987) Butt, Land Law, Ch 2 (5th Ed, 2006) Perry & Lloyd, Australian Native Title Law (Law Book Co, 2003) GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJ AND OTHER GROUPS) v NORTHERN TERRITORY OF AUSTRALIA, COMMONWEALTH OF AUSTRALIA, NORTHERN TERRITORY SEAFOOD COUNCIL INC AND ARNHEM LAND ABORIGINAL LAND TRUST NTD 32 OF 2005 ARNHEM LAND ABORIGINAL LAND TRUST , NORTHERN LAND COUNCIL and GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJI AND OTHER GROUPS v NORTHERN TERRITORY OF AUSTRALIA, DIRECTOR OF FISHERIES (NT), NORTHERN TERRITORY SEAFOOD COUNCIL INC and COMMONWEALTH OF AUSTRALIA (Intervenor) NTD 33 OF 2005

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