Yarmirr, Mary & Ors v The Northern Territory of Australia & Ors [1998] FCA 771

Federal Court of Australia|1998-02-27|Before: Olney J

See finding of Moynihan J quoted by Toohey J, 175 CLR 1 at p 191. [6] The spelling of some of the Aboriginal names varies from that used in the application. In these reasons the spelling used in the applicants' anthropological report is adopted. [7] The deceased applicant is referred to by name on several occasions in the anthropologists' report but having regard to Aboriginal custom concerning the avoidance of naming recently deceased persons he is referred to in these reasons as Mary Yarmirr's father. [8] Section 84(2) of the Native Title Act provides that a person may seek leave to be joined as a party to proceedings if the person's interests are affected by the matter or may be affected by a determination in the proceedings. Ms Henwood is an Aboriginal person whose family origins are in another part of the Northern Territory but who was taken to the mission at Croker Island as one of the "stolen generation". She holds a number of licences issued under the Fisheries Act 1988 (NT) which entitle her to undertake commercial fishing activities within, inter alia, the claimed area. [9] Minjilang is not shown on the Commonwealth map. It is the main settlement on Croker Island, located near Mission Bay.

76 FCR 492. [11] Attorney-General (UK) v Chambers (1854) 4 De GM & G 206 (43 ER 486); Blundell v Catterall (1821) 5 B & Ald 218(106 ER 1190); Delap v Hayden (1923) 4 DLR 1102; Bowen v Minister for Urban Affairs and Planning (1996) 90 LGERA 368.

175 CLR 1 per Mason CJ and McHugh J at p 15.

175 CLR 1 at p 59. [15] For examples of circumstances in which the non-extinguishment principle applies see Native Title Act ss 23(3), (4); s 25(1); s 46; s 47(3).

138 CLR 346. [17] The sources of the information include a report entitled "Croker Island Seas Native Title Claim Area: Review of historical and archaeological information regarding non-Aboriginal use of the sea and seabed" (exhibit NT3) and various official records tendered by the Commonwealth.

161 CLR 475. [19] 161 CLR 475 at p 483. See also similar comments per Mason and Brennan JJ at pp 488-9; per Deane J at p 492; per Dawson J at pp 495-6.

Transcript p 502-503.

ibid., at p 993-995.

ibid., at p 1069. [24] Yuwurrumu membership can be acquired by the process of adoption. Jim Wauchope, who is referred to in the discussion of the Mandilarri-Ildugij estate group, was born in central Australia but was taken away from his mother at an early age and at about the age of 9 was taken to the Methodist Mission on Croker Island where, after World War II he developed a close relationship with an Ildugij man Bob Mangarnawu who taught him about the local cultural landscape and customs. He has since been recognised as a member of the Mandilarri-Ildigij yuwurrumu as are his children. He knows nothing of the country of his parents. Compare Jim Wauchope's position with that of the eighth respondent who also grew up at the Mission on Croker Island about whom Mary Yarmirr said - "She has no rights. Her yuwurrumu is totally different from mine. She is not a Mandilarri woman" (Transcript p 528 (22-3)). The following exchange then took place: His Honour: Just to clarify that, I think really what Ms Henwood was saying was not only that she lived here but she was forced to live here. From what I understand you to say, that would not make any difference, whether she lived here voluntarily? Mary Yarmirr: No, that wouldn't make any difference, your Honour, because, as I've said ... His Honour: Her country is somewhere else? Mary Yarmirr: Her country is somewhere else (Transcript 528 (24-29)).

Peterson and Devitt, pp 18-19.

Transcript p 72 (8-9).

ibid., at p 72 (29-30).

ibid., at p 80 (8-10).

ibid., at p 85 (21) - 86 (22).

ibid., at p 99 (13-28).

ibid., at p 632 (15-17).

ibid., at p 633 (1).

ibid., at p 570 (6-10).

ibid., at p 571 (27) - 572 (4).

ibid., at p 659 (2) - 660 (2).

ibid., at p 715 (17-21).

ibid., at p 476 (20-27).

ibid., at p 613 (10).

ibid., at p 612 (23).

ibid., at p 618 (8). [44] Section 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 provides that unless the contrary intention appears: "traditional Aboriginal owners", in relation to land, means a local descent group of Aboriginals who: (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by Aboriginal tradition to forage as of right over that land.

Applicants' written submission (12 November 1997) para 10.1.2.

Transcript p 49 (28-29).

ibid., at p 194 (7-10).

ibid., at p 194 (28-31).

Applicants' proposed determination, paragraph (c).

Transcript p 54 (17) - 55 (2).

ibid., at p 55 (3-22).

ibid., at p 515 (27) - 516 (18).

ibid., at p 49 (20-23).

ibid., at p 554 (9-11).

ibid., at p 554 (24-25).

ibid., at p 50 (20-23).

ibid., at p 65 (21) - 66 (7).

ibid., at p 54 (3-7.

ibid., at p 51 (8-14).

ibid., at p 52 (11-31).

ibid., at p 52 (32) - 53 (28).

ibid., at p 730 (9-26).

Applicants' statement of facts issues and contentions dated 24 October 1996; paragraph 6 (e), (f) and (g).

Peterson and Devitt, pp 18-19.

Transcript p 92 (22) - 93 (8).

ibid., at p 529 (15-30).

ibid., at p 559 (11) - 560 (3).

ibid., at p 138 (19) - 139 (24); 255 (28) - 256 (16).

Peter and Devitt, pp 22-23.

175 CLR 1; per Mason CJ and McHugh J at p 15.

ibid., per Brennan J at p 64 and per Toohey J at p 195.

The Wik Peoples v The State of Queensland and others (Wik) 187 CLR 1 per Toohey J at p 133.

18 Halsbury's Laws of England (4th Ed) para 604.

ibid., at pp 124-125.

168 CLR 314 at p 330.

Unreported; delivered 27 February 1998.

Evidence Act 1995(Cth)ss 73, 74

Native Title Act 1993(Cth)ss 3, 6, 10, 13, 17, 23, 26-44, 62, 81, 82, 213, 223, 235, 238, 253

Seas and Submerged Lands Act 1973(Cth)ss 7, 10, 11, Schedule

Atomic Energy (Control of Minerals) Act 1946(Cth)

Fisheries Act 1878(SA)

Fisheries Act 1904(SA)

Fisheries Amendment Act 1980(Cth)s 11

Fish and Fisheries Act 1979(NT)

Northern Territory Crown Lands Act 1890(SA)

Northern Territory (Self Government) Act 1978(Cth)

Offshore Waters (Application of Territory Laws) Act 1985(NT)s 3

Validation of Titles and Actions Act 1994(NT)

Northern Territory Land Act 1872(SA)

Northern Territory Crown Lands Consolidation Act 1882(SA)

(Cth), the Atomic Energy Act 1953(Cth)

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