Case: Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1
Outcome: followed
The starting point for consideration of the consolidated proceeding is the NT Act. True though it may be that paragraphs (a) and (b) of s 223(1) are based on the judgment of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1, it is the provisions of the NT Act which the Court must address in any determination of native title. See Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 ( Ward ), at [16], [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 ( Yorta Yorta ), at [32] per Gleeson CJ, Gummow and Hayne JJ; and Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 ( Yarmirr ), at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 49 The High Court reiterated those matters in Yarmirr at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and also in Yorta Yorta at [33]-[35] per Gleeson CJ, Gummow and Hayne JJ. 458 Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 ( Jango ) addressed the same issues. In that case, certain expert anthropologists' reports were the subject of in excess of 1000 objections by the respondents. Sackville J observed at [8] that it was apparent that the reports had been 'prepared with scant regard for the requirements of the [Evidence Act]'. His Honour cited the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Yarmirr , where their Honours noted at [84] that an expert anthropological report had been received in evidence in that case without proof and without objection 'despite it being a document which was in part intended as evidence of historical and other facts, in part intended as evidence of expert opinions the authors held on certain subjects, and in part a document advocating the claimants' case. Although it was not suggested that the mixing of these disparate elements, without any evident delineation between them, ultimately led to any insuperable difficulty in this case, it is a practice which has obvious difficulties and dangers.' 460 His Honour then discussed the submission that it had become common for parties to rely on 'discursive expert reports' prepared without assistance from lawyers, a practice which has its genesis in preparation of claims under the ALR Act. He pointed out that claims under the ALR Act were not subject to the rules of evidence in contrast to s 82(2) of the NT Act. Consequently, his Honour observed at [20] that any such practice 'should have ceased with the enactment of the new s 82 ... . Certainly, the practice of tendering a report containing undifferentiated statements of facts, expressions of opinion and advocacy of a claimants' case should not have survived the observations of the High Court in Commonwealth v Yarmirr.' 936 AFANT, in addition to adopting the Territory's submission on extinguishment, made submissions about tidal waters in the claim area. It contends that the public right to fish and to navigate in tidal waters, discussed in Yarmirr at [60] and [94], meant that the first applicants could no longer properly maintain a right to exclude from the tidal waters all but those exercising those public rights. Whether such a claimed right may be available is a matter of doubt: see the High Court in Ward at [388]; Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 ; Gumana v Northern Territory of Australia [2005] FCA 50 ; (2005) 141 FCR 457; Alyawarr FC . As I am not making a determination of native title rights and interests, I do not have to finally determine the issue.