Yarmirr, Mary & Ors v The Northern Territory of Australia & Ors [1998] FCA 1185

ral and spiritual knowledge of the common law holders. 6. The native title rights and interests of the common law holders in relation to the sea and sea-bed within the claimed area may be affected by rights and interests in relation to the sea and sea-bed within the claimed area validly granted or which exist or which may hereafter exist pursuant to the laws of the Commonwealth of Australia and of the Northern Territory of Australia. AND THE COURT ORDERS that each party pay its own costs of and incidental to the proceeding including any reserved costs. SCHEDULE

Place: Darwin Date: 4 September 1998 SUPPLEMENTARY REASONS FOR JUDGMENT On 6 July 1998 I published reasons in this proceeding in which I indicated that I proposed making a determination of native title in the following terms:

Communal native title exists in relation to the sea and sea-bed within the claimed area. 2. The native title is held by the Aboriginal peoples who are yuwurrumu members of the Mandilarri-Ildugij, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans (the common law holders).
The native title rights and interests do not confer possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area to the exclusion of all others. 4. The native title rights and interests which the Court considers to be of importance are the rights of the common law holders, in accordance with and subject to their traditional laws and customs to have free access to the sea and sea-bed within the claimed area for all or any of the following purposes: (a) to travel through or within the claimed area; (b) to fish and hunt for the purpose of satisfying their personal, domestic or non-commercial communal needs including the purpose of observing traditional, cultural, ritual and spiritual laws and customs; (c) to visit and protect places which are of cultural and spiritual importance; (d) to safeguard their cultural and spiritual knowledge. 5. The native title rights and interests of the common law holders in relation to the sea and sea-bed within the claimed area are affected by, and to the extent of any inconsistency must yield to, all rights and interests in relation to the sea and sea-bed within the claimed area which exist pursuant to valid laws of the Commonwealth of Australia and of the Northern Territory of Australia including the rights and interests of the lessee of Crown Term Lease No. 1034. For the purpose of complying with s 56(2)(a) of the Native Title Act, I requested that Mary Yarmirr as a representative of the common law holders indicate whether the common law holders intended to have the native title held in trust by - i) nominating in writing given to the Court within 28 days from the publication of my reasons, a prescribed body corporate to be trustee of the native title; and ii) including with the nomination the written consent of the body corporate. The further hearing of the proceeding was adjourned until 12 August 1998 for the purpose of finalising the determination and any other matters arising from the Court's judgment. My expectation was that the parties would wish to have some imput in relation to the final form of the determination. Mary Yarmirr did not nominate a prescribed body corporate within the specified period and upon the matter coming on for further hearing on 12 August 1998 counsel for the applicants indicated that it was not the applicants' intention to have the native title held in trust but rather that a prescribed body corporate would be formed to become a registered native title body corporate to perform the functions mentioned in s 57(3) of the Native Title Act. I was advised that the necessary formalities would be completed within a further 21 days. Accordingly, as required by s 57(2)(a) I requested Mary Yarmirr as a representative of the common law holders to nominate in writing to the Court within 21 days from 12 August 1998, a prescribed body corporate for the purpose of s 57 and Mary Yarmirr has since nominated Injarnyala Corporation for that purpose. In these circumstances, the Court is required by s 57(2)(b) to determine that Injarnyala Corporation is to perform the functions mentioned in s 57(3) of the Native Title Act 1993. In the period intervening between 6 July 1998 and 12 August 1998 written submissions were made by the Commonwealth, the applicants and the fishing industry parties concerning the form of the determination. The Northern Territory indicated that it supported the Commonwealth's submissions. On 12 August 1998 the parties appeared by counsel and I heard argument in support of the various submissions. I indicated that I would settle the form of the determination once the formalities of s 57 had been complied with. The first issue relating to the form of the determination and one on which the parties are in agreement relates to the definition of the boundaries of the claim area. The Commonwealth has provided a detailed description of the boundaries supported by the affidavit evidence of Colin John French, Project Manager of the Australian Marine Boundaries Information System. Mr French was not cross-examined on his affidavit and, subject to the variation referred to below, I am prepared to accept his description of the boundaries of the claim area as being appropriate. The determination will reflect the detailed description provided by Mr French. In the course of preparing the determination it became apparent to me that there was an error in the fourth paragraph of the Commonwealth's description of the boundary of the claimed area. As presented to the Court the relevant part of the description reads: The boundary then proceeds in a north of west direction along the Cobourg Marine Park border past Guialung Point and through Bowen Strait to that point on the Cobourg Marine Park border with latitude 11°03'08.2" South, longitude 132°21'19.1" East. This point is located slightly to the north of west of Palm Bay, Croker Island. I had my Associate communicate my concern to the Australian Government Solicitor and subsequently I was advised that the passage in question should have read: The boundary then proceeds in a north of west direction along the Cobourg Marine Park border past Guialung Point and through Bowen Strait to that point on the Cobourg Marine Park border which has latitude 11°03'08.2" South, longitude 132°21'19.1" East. This point is located slightly to the north of west of Palm Bay, Croker Island. I understand that this variation has been communicated to the solicitors for the other parties and that none has any concern about the alteration. It is obvious that the meaning intended has now been more appropriately expressed and I will adopt the variation in the determination. Although no party has suggested a formulation which would do other than express the intention disclosed in my reasons, there is some divergence of views as to the extent to which the determination should contain material which is unnecessary in order to satisfy the definition of a "determination of native title" in s 225. After careful consideration I have decided to adhere to the format of s 225 and to refer only to those matters which are strictly necessary. In particular, it is my opinion that to the extent that s 225 requires the Court to indicate "those native title rights and interests that it considers to be of importance", the statute does not call for any statement as to rights that may have been claimed but which have not been established nor does it contemplate that the Court will make an exhaustive statement of the native title rights and interests of the common law holders. It should be emphasised that this matter is being dealt with pursuant to s 225 in the form originally enacted and before the 1998 amending statute has come into force. In the course of dealing with this matter I have noticed an inconsistency in my reasons of 6 July 1998 which I will rectify in the determination. In sub-paragraph (iii) of my summary of conclusions in paragraph 161 I refer to the right of access to the claim area "to fish, hunt and gather" for certain purposes but in the corresponding part of the proposed determination in paragraph 162 no reference is made to gathering. In paragraph 117 I made a finding in relation to the activity of gathering and it was intended that the determination should reflect that finding. Section 225(b)(iv) calls for a determination of "the nature and extent of any other interest in relation to the land and waters that may affect the native title rights and interests". Presumably "any other interest" refers to interests in the land and waters which are not native title rights and interests. It is impossible to anticipate with any precision what other interests may affect the native title rights and interests. Interests which have already extinguished native title are not within the scope of the paragraph but interests about which there is doubt could well be covered by it. In my original formulation of the determination I referred in general terms to inconsistent rights to which the native title rights must yield and also to the specific rights of the lessee of Crown Term Lease No 1034. The latter was included because it had been the subject of evidence and argument. But so had the rights of various licencees under Commonwealth and Territory fishing legislation and other statutes. After careful consideration of the terms of s 225(b)(iv) I am inclined to avoid making reference to rights which may have already accrued under existing grants or licences and I propose to adopt in substance the general description of other interests suggested by the applicants. This has the advantage of avoiding complications that could arise in the event of legislative changes or indeed in the event of the future act provisions of the Native Title Act applying to an activity within the claim area. I turn now to consider the question of costs. Counsel for the applicants has sought an order that the respondents pay the applicants' costs. This order is sought on the basis that the applicants have been successful in obtaining a determination in their favour. On the other hand, the fishing industry parties have sought costs against the applicants on the basis that the applicants failed to obtain a determination of exclusive fishing rights and the right to control access to the waters of the claimed area. Whilst there is no question that the Court has power at the present time to make an order for costs, I am of the view that in the circumstances of this case it is appropriate that there be no such order. The applicants have succeeded to the extent that they have obtained a determination of native title, but it is a determination which falls far short of what they sought and advocated throughout the proceeding. In substance they have achieved very little in practical terms and certainly have failed to establish any exclusive rights which was their major objective. The Commonwealth and the Northern Territory challenged the Court's jurisdiction to make a determination in relation to waters below the low water mark and although they were unsuccessful, that particular issue is one which is of general interest and was being argued for the first time. The fishing industry parties clearly had a legitimate interest in opposing the making of a determination of exclusive rights, but they also supported the Commonwealth and Territory case as to the Court's jurisdiction. It cannot be said that any of the parties was completely successful nor can it be said that any party was completely unsuccessful. In this new field of litigation there are many issues yet to be resolved and it would be undesirable for litigation, supported almost exclusively by public funds, to be inhibited by the prospect that lack of success may be accompanied by a crippling financial burden in the form of a costs order. As a matter of discretion having regard to both the particular circumstances of this case and what I consider to be an appropriate general principle that should apply in this type of litigation, I decline to make any order for costs. I note that the 1998 amending Act, when it comes into force after 30 September 1998, will limit the Court's power to order costs to cases where a party's conduct has been unreasonable and has caused another party to incur costs in connection with the institution or conduct of the proceeding. Whilst the yet to be proclaimed s 85A can have no bearing upon the exercise of my discretion in this case, I am nevertheless of the view that it expresses a general principle that is appropriate to apply in the present context. The only remaining matter has to do with paragraphs 12 and 13 of orders I made on 4 July 1996. Those paragraphs provide: 12. If at the time of filing any document referred to in these directions, or any amendment to such documents, the applicants so request, those documents will automatically be subject to the following restrictions unless and until the Court gives a specific direction amending or rescinding those restrictions, namely: (c) that the document not be photocopied, and (d) that the contents of the document not be communicated to any person other than for the purposes of the proceeding. 13. All reports and maps served on the respondents pursuant to these directions or any subsequent directions are to be returned to the applicants at the conclusion of the proceeding. Counsel for the fishing industry parties has requested that paragraphs 12 and 13 be varied in two respects. First, I am told that some of the documents in question now bear notations made by counsel and/or solicitors for the respondents to which the applicants ought not be privy and that it is therefore inappropriate for the documents to be returned to the applicants. To overcome this difficulty I propose to vary paragraph 13 to provide, as an alternative to returning the documents, that the documents may be destroyed in which case the party in question will be required to notify the applicants' solicitors to that effect. Second, to accommodate the prospect that my decision may be the subject of an appeal, paragraph 12 will be varied to facilitate the copying of documents to satisfy any requirement to provide copies in the course of the appellate process and paragraph 13 will be varied to postpone the obligation to deliver up or destroy the documents until after all appeals have been concluded. I certify that this and the preceding 6 pages are a true copy of the Supplementary Reasons for Judgment of the Honourable Justice Olney Associate: Dated: Heard: 12 August 1998 Place: Darwin Judgment: 4 September 1998 Counsel for the applicants: Mr J. Basten QC and Mr K.R. Howie Solicitor for the applicants: Northern Land Council Counsel for the first respondent: Mr T. Pauling QC and Ms R. Webb Solicitor for the first respondent: Solicitor for the Northern Territory Counsel for the second respondent: Dr G. Griffith QC, Dr M. Perry and Mr S. Lloyd Solicitor for the second respondent: Australian Government Solicitor Counsel for the third, fourth Mr G. Hiley QC and Mr N. Henwood and seventh respondents: Solicitor for the third, fourth Cridlands and seventh respondents: Counsel for the eighth respondent: Mr M. Storey Solicitor for the eighth respondent: North Australian Aboriginal Legal Aid Service Inc. The fourth and fifth respondents were not represented.

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Judgment (18 paragraphs)