Yarmirr v The Northern Territory

REASONS FOR JUDGMENT (ON APPELLANTS' NOTICE OF MOTION)

THE COURT: 1 Before the Full Court is a notice of motion by the appellants seeking the following orders: "1. That the Full Court of the Federal Court reconsider the order made on 3 December 1999:- (1) Appeal dismissed. (2) No order for the costs of the appeal. 2. That the judgment and orders be re-opened for the purpose only of considering and determining ground two of the Notice of Appeal in this matter set out at Appeal Books, Vol. 8, p. 2103. 3. That the order of the Court be varied to the extent necessary to give effect to a determination on the matter raised in that ground." 2 In support of their motion, the appellants rely upon the affidavit of their solicitor, Mr R M D Levy, sworn 21 December 1999. 3 The background to the motion is as follows: 4 In the majority judgment, Beaumont and von Doussa JJ said (at para 98): "The deed of grant of these Islands does not directly describe the seaward limits of the land granted; but, as his Honour correctly in our view held (at 545 - 546), it does so indirectly: the deed of grant describes the area by reference to Compiled Plan 4182; and that Plan refers to "Arnhem Land (Islands) ... being all those islands above low water mark…". The Arnhem Land land grant also identified its boundary by reference to the low water mark. His Honour held, correctly we think, that the land of the inter-tidal zone was thus excluded from the claim, but the question remained for his Honour whether the waters of that zone might be claimed (at 546). We will return to this specific question. Before doing this, reference should be made to the descriptions of the region by cartographers and geographers." 5 The majority later said (at paras 202 - 203): "As noted, the application before Olney J excluded land and reefs already granted under the Land Rights Act, but the question remained for his Honour whether the waters of the intertidal zone were also excluded from the claim, bearing in mind that the land so granted extended to the low water mark, i.e. the normal low water baseline. His Honour referred to the statutory definition of "waters" in s 253 of the NTA. It will be recalled that this definition, which is extensive, 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 (a). Of the application of this definition in the present context his Honour said (at 546): "On a literal application of the definition a claim in relation to 'waters' would relate to either the sea etc or to the sea-bed etc but not both. It may be because of this perceived problem that the application expressly refers to the 'seas and sea-beds' in the defined area. If it is legitimate to treat the sea-bed separately from the sea which covers it, (and the definition suggests that it is) then it would appear to be open to claim a determination in respect of the sea of the intertidal zone of the islands without making a similar claim in respect of the sea-bed of that zone (that is the land of the intertidal zone when it is covered by the sea). The application as originally framed, in seeking a determination in relation to all of the sea within the claimed area, extends to the waters of the intertidal zone." We agree. Such an outcome accords with the terms of the Land Grants and also with the position at common law in any event." 6 We went on to order, by majority, that the appeal be dismissed. That order has not yet been formally entered. 7 In his affidavit, Mr Levy said: "5. The conclusion of the learned trial judge, that the waters over the inter-tidal zone were claimed, may have been reached simply on the construction of the application, namely that all waters within the defined area were claimed. However, it may also have been reached on the basis that the fee simple estate granted under the Land Rights Act did not include the column of water over the land, to the extent that the land included the inter-tidal zone. 6. Ground 2 of the appeal (AB, Vol. 8, p. 2103) was formulated on the assumption that his Honour had in fact ruled that the column of water over the inter-tidal zone was not within the terms of the grant of land under the Land Rights Act. The written submissions before this Court of both the Appellants and the Northern Territory addressed this issue: Appellants' submissions, part 5 at pp. 34-35; submissions of First Respondent, part D, paras. 39-54, Appellant's submissions in reply, part 2 at pp. 2-5. 7. In the majority judgment in this Court, the matter was noted in the following terms (at para. 98): 'His Honour held, correctly we think, that the land of the inter-tidal zone was thus excluded from the claim, but the question remained for his Honour whether the waters of that zone might be claimed (at 546). We will return to this specific question.' The matter is further considered at paras. 202 and 203, but in terms which failed to resolve the issue raised by ground 2 of the Notice of Appeal and agitated in the written submissions of the parties. The matter is also adverted to in the judgment of Merkel J at para 294. 8. It is clear from the orders made by the majority that the issue has been effectively resolved adversely to the Appellants. However it does not appear from the judgments that the matter sought to be agitated has been expressly addressed. The Appellants joined the Ninth Respondent (the Arnhem Land Aboriginal Land Trust) so that no issue could be raised as to the failure to have all the relevant parties before the Court. However, now that the relevant parties were before the Court, an estoppel (probably by way of res judicata) will arise from the order of the Court. With respect, it appears that this may have occurred inadvertently, without the relevant submissions of the parties being addressed. This may have consequences for other litigation presently pending involving the water column over the inter-tidal zone. 9. If my understanding of the judgment of the majority of the Court is correct, I respectfully request that the judgment may be re-opened for the limited purpose of addressing this specific issue." 8 Ground 2 of the notice of appeal was as follows: "2. 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." 9 The Arnhem Aboriginal Land Trust ("the Trust") was not a party to the proceedings at first instance, and did not seek to intervene in those proceedings. During the hearing of the appeal, as Mr Levy said, upon the appellants' application, the Trust was added, without opposition from the then parties, as a respondent to the appeal, but again did not appear in the proceedings. Nor did the Trust appear on the present motion. 10 Before the Court at first instance was an application by the appellants for the determination of native title in respect of waters that included the waters of the subject inter-tidal zone. The Trust did not seek to resist this claim. The trial Judge upheld the appellants' claim, upon the basis that their native title rights and interests were not exclusive. The appellants' appeal was an appeal in the strict sense, so that the question for us was whether the judgment under appeal was correct when given (see, e.g. Duralla Pty Ltd v Plant (1984) 2 FCR 342). For the reasons we gave on 3 December 1999, we were not persuaded of any appellable error in the judgment at first instance in the present respect. We remain of that view. As has been said, the claim extended to the inter-tidal waters. It was upheld, at first instance, albeit on a non-exclusive basis. The Trust was not then a party and did not then, or ever, seek to intervene in these proceedings to contradict the appellants' claim in any respect. As mentioned, we see no appellable error in the primary Judge's conclusion that the claim to the inter-tidal waters be upheld on the basis stated. 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. 11 In the result, we would make no order on the notice of motion, save that we would reserve liberty to any party to apply for costs of the motion by written submission filed and served within twenty-one days. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.