FEDERAL COURT OF AUSTRALIA Gumana v Northern Territory of Australia (No 2) [2007] FCAFC 168 COSTS – land rights – Native Title Act 1993 (Cth) proceedings – costs of appeal – effect of statutory provision – each party to bear its own costs – appeal on Judiciary Act 1903 (Cth) proceedings – appeal successful – costs to follow the event of the appeal – costs at first instance not disturbed Native Title Act 1993 (Cth) Commonwealth v Yarmirr (2000) 101 FCR 171 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 GUMATJ AND OTHER GROUPS) v NORTHERN TERRITORY OF AUSTRALIA, DIRECTOR OF FISHERIES (NT), NORTHERN TERRITORY SEAFOOD COUNCIL INC and COMMONWEALTH OF AUSTRALIA (Intervenor) NTD33 of 2005 FRENCH, FINN & SUNDBERG JJ 9 NOVEMBER 2007 PERTH (HEARD IN DARWIN) IN THE FEDERAL COURT OF AUSTRALIA 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) Appellant AND: NORTHERN TERRITORY OF AUSTRALIA First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent NORTHERN TERRITORY SEAFOOD COUNCIL INC Third Respondent ARNHEM LAND ABORIGINAL LAND TRUST Fourth Respondent JUDGES: FRENCH, FINN & SUNDBERG JJ DATE OF ORDER: 9 NOVEMBER 2007 WHERE MADE: PERTH (HEARD IN DARWIN) THE COURT ORDERS THAT: 1. Each party bear its own costs of the appeal and the cross-appeals. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY NTD 33 OF 2005 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ARNHEM LAND ABORIGINAL LAND TRUST First Appellant NORTHERN LAND COUNCIL Second Appellant GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJ AND OTHER GROUPS) Third Appellants AND: NORTHERN TERRITORY OF AUSTRALIA First Respondent DIRECTOR OF FISHERIES (NT) Second Respondent NORTHERN TERRITORY SEAFOOD COUNCIL INC Third Respondent COMMONWEALTH OF AUSTRALIA Intervenor JUDGES: FRENCH, FINN & SUNDBERG JJ DATE OF ORDER: 9 NOVEMBER 2007 WHERE MADE: PERTH (HEARD IN DARWIN) THE COURT ORDERS THAT: 1. The first and second respondents and the intervenor pay the appellants' costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA 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) Appellant AND: NORTHERN TERRITORY OF AUSTRALIA First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent NORTHERN TERRITORY SEAFOOD COUNCIL INC Third Respondent ARNHEM LAND ABORIGINAL LAND TRUST Fourth Respondent IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY NTD 33 OF 2005 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ARNHEM LAND ABORIGINAL LAND TRUST First Appellant NORTHERN LAND COUNCIL Second Appellant GARWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALLI MARAWILI, DAYMAMBI MUNUNGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJ AND OTHER GROUPS) Third Appellants AND: NORTHERN TERRITORY OF AUSTRALIA First Respondent DIRECTOR OF FISHERIES (NT) Second Respondent NORTHERN TERRITORY SEAFOOD COUNCIL INC Third Respondent COMMONWEALTH OF AUSTRALIA Intervenor JUDGES: FRENCH, FINN & SUNDBERG JJ DATE: 9 NOVEMBER 2007 PLACE: PERTH (HEARD IN DARWIN) REASONS FOR JUDGMENT ON COSTS Introduction 1 On 5 March 2007 the Full Court gave judgment in these two appeals. It dismissed the "Native Title Appeal" in NTD32 of 2005 but allowed cross-appeals by the Northern Territory and the Commonwealth. It allowed the "Land Rights Appeal" NTD33 of 2005. In each case the parties were given leave to file submissions as to the costs of the appeal and, in NTD32 of 2005, the costs of the cross-appeals. 2 The issues raised in the two appeals were as follows: 1. The Native Title Appeal: 1.1 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 of the Native Title Act 1993 (Cth) (Native Title Act) applies to the relevant area; 1.2 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; 1.3 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. 2. The Land Rights Appeal 2.1 whether the grant of an estate in fee simple to the Land Trust under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) conferred a right of exclusive possession to the inter-tidal zone; 2.2 whether the Fisheries Act 1988 (NT) (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 Armhem Land Aboriginal Land Trust (the Land Trust). 3 As noted above, the Land Rights Appeal succeeded but the Native Title Appeal failed. The cross-appeals in the Native Title Appeal succeeded to the extent that the right to control access to the inter-tidal zone by other Aboriginal people was so removed from the Determination which had been made at first instance. Statutory framework – costs under the Native Title Act 4 The Native Title Act provides, in s 85A: (1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs. The contentions as to the costs of the Native Title Appeal 5 The appellants in the Native Title Appeal submitted that each party in that appeal should bear its own costs. They relied upon the terms of s 85A of the Native Title Act. They referred to the mixed outcomes of the Native Title Appeal. 6 The Northern Territory and the Commonwealth both submitted that all parties should bear their own costs. Their submissions seemed to assume that the appellants were seeking the orders set out in their notices of appeal, namely that the respondents pay the appellants' costs of the appeal and proceedings below. The Northern Territory Seafood Council repeated and adopted the submissions of the Northern Territory. 7 In our opinion the appropriate disposition of the Native Title Appeal is that each party bear its own costs. The Land Rights Appeal 8 In the Land Rights Appeal, which related to proceedings under the Judiciary Act 1903 (Cth) for declaratory relief, the appellants seek the costs of the appeal. They seek no order in relation to the costs below. 9 The costs order at first instance by Mansfield J on 11 October 2005 was that each party bear its own costs. The appellants argued before his Honour that both the Native Title and the Land Rights proceedings raised matters of public interest. There was a public interest in their outcome. This, they submitted, was reflected in the interests represented by the parties and intervenor. The respondents did not resist the order proposed at first instance. 10 The Northern Territory submitted that the public interest consideration relied upon by the appellants held good for the appeal. They should not be permitted, it was said, to depart from the position put to the Court at first instance. In particular, they should not seek to have the orders below overturned by this Court. As to that, we note that the appellants sought in their submissions only to have the costs of the appeal. 11 The Commonwealth, which was an intervenor in the appeal, contended that the appellants were not wholly successful. They pointed to the refusal by the Court of a negative declaration sought on the appeal. Reference to the appellants' change of position in the original proceedings was also made. This may have been relevant to the question of costs at first instance. It does not, however, affect the exercise of the discretion to award costs on the appeal. 12 The Commonwealth relied upon the public interest dimension of the case. The appellants, it was said, were essentially seeking to have the law settled as to the nature and extent of rights in respect of the inter-tidal zone conferred by a grant of fee simple under the Land Rights Act. The respondents, in resisting the appeal, were relying upon the law as it had been declared to that point by the Full Court in Commonwealth v Yarmirr (2000) 101 FCR 171. 13 In our opinion the costs of the appeal should follow the event of the appeal. The question was one of great public interest. It was no doubt their perspective on the public interest that led the governments concerned to resist the appeal. That the costs of the appeal should be met by the public in the ordinary exercise of the Court's discretion on the basis that the costs follow the event is, in the circumstances, quite appropriate. 14 There will be an order in the Land Rights Appeal that the first and second respondents and the intervenor pay the costs of the appeal. The orders made at first instance will not be disturbed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Finn and Sundberg. Associate: Dated: 9 November 2007 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 Ms R Webb QC and Mr G Laughton Respondent in NTD32 of Australian Government Solicitor 2005 and the Intervenor in Mr G Hiley QC and Mr G Kennedy NTD33 of 2005: Cridlands Lawyers Solicitor for the Second Respondent in NTD32 of 2005 and the Intervenor in NTD33 of 2005: Counsel for the Third Respondent in NTD32 and 33 of 2005: Solicitor for the Third Respondent in NTD32 and 33 of 2005: Date of Written Submissions: 16 March 2007 Date of Judgment: 9 November 2007