Northern Territory of Australia v Arnhem Land Aboriginal Land Trust

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,Gummow,Hayne,Crennan JJ,KirbyJ,Heydon,Kiefel J
• Judgment Date: 30 July 2008
• Neutral Citation: 2008-0730 HCA B,[2008] HCA 29
• Docket Number: D7/2007
• Date: 30 July 2008

Northern Territory of Australia & Anor

Appellants

and

Arnhem Land Aboriginal Land Trust & Ors

Respondents

[2008] HCA 29

Gleeson CJ, Gummow, Kirby, HayneHeydonCrennan and Kiefel JJ

D7/2007

HIGH COURT OF AUSTRALIA

Northern Territory of Australia v Arnhem Land Aboriginal Trust

Northern Territory of Australia v Arnhem Land Aboriginal Trust

Aboriginals — Land rights — Rights to exclude persons from tidal waters under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘Land Rights Act’) — Grants of ‘Estate in Fee Simple’ extending to low water mark — Grants subject to Land Rights Act — Subject of grants ‘Aboriginal land’ under Land Rights Act — Under Land Rights Act, s 70(1), a ‘person shall not enter or remain on Aboriginal land’ — Defence under Land Rights Act, s 70(2A), if person enters or remains on land in accordance with that Act, or law of Northern Territory — Under Aboriginal Land Act (NT) relevant Land Council may grant permission to enter and remain on Aboriginal land — Meaning of ‘Aboriginal land’ — Whether, without permission, licensee under Fisheries Act (NT) (‘Fisheries Act’) can fish in ‘intertidal zone’, or in tidal waters within boundaries of grants — Whether fishing in those waters is to ‘enter or remain on Aboriginal land’ — Construction of Land Rights Act, s 70(1) — Whether licensee under Fisheries Act does not contravene Land Rights Act, s 70(1), because enters or remains on land ‘in accordance with … a law of the Northern Territory’.

Statutes — Construction — Whether Fisheries Act, by necessary implication, abrogated any pre-existing common law public right to fish in tidal waters — Whether Fisheries Act permits licensee to enter any place to fish in accordance with licence — ‘Application’ of Fisheries Act — Public rights of navigation — Approach to interpretation — Whether legislation extinguishing Aboriginal rights requires specificity.

Words and phrases — ‘Aboriginal land’, ‘enter or remain on Aboriginal land’, ‘Estate in Fee Simple’, ‘public right of navigation’, ‘public right to fish’, ‘waters of the sea’.

Aboriginal Land Act (NT), ss 4, 5, 12.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 3(1), 70(1), 70(2A), 73(1).

Fisheries Act (NT), ss 10(1), 10(2), 11.

Representation

D F Jackson QC with V B Hughston SC for the appellants (instructed by Solicitor for the Northern Territory)

B W Walker SC with S A Glacken for the first, second and third respondents (instructed by Northern Land Council)

M A Perry QC with G J Kennedy for the fourth respondent (instructed by Cridlands)

D M J Bennett QC, Solicitor-General of the Commonwealth with R J Webb QC for the fifth respondent (instructed by Australian Government Solicitor)

ORDER

• 1. Appeal allowed in part.

• 2. Set aside the order first numbered 2 of the orders of the Full Court of the Federal Court of Australia made on 2 March 2007 and, in its place, order that it be declared that:

Sections 10 and 11 of the Fisheries Act (NT) do not confer on the Director of Fisheries (NT) a power to grant a licence under that Act which licence would, without more, authorise or permit the holder to enter and take fish or aquatic life from areas within the boundary lines described in the Arnhem Land (Mainland) Grant and the Arnhem Land (Islands) Grant made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

• 3. Appellants to pay the first, second and third respondents' costs of and incidental to the appeal to this Court.

1 Gleeson CJ, Gummow, HayneCrennan JJ The central issue arising in this appeal is whether a grant in fee simple, made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the Land Rights Act’), confers rights to exclude from tidal waters within the boundaries of the grant persons who wish to take fish or aquatic life in those waters, including persons holding a licence under the Fisheries Act (NT) (‘the Fisheries Act’). That issue arises in litigation the origins of which can be traced to Aboriginal traditional owners of parts of Blue Mud Bay in northeast Arnhem Land wishing to determine their rights to exclude fishermen and others from waters in that area.

2 On 30 May 1980, pursuant to the Land Rights Act 1, the Governor-General executed deeds of grant of an estate in land to the first respondent (Arnhem Land Aboriginal Land Trust — ‘the Land Trust’) in relation to two areas described in Sched 1 to the Land Rights Act. One grant, the Arnhem Land Mainland Grant (‘the Mainland Grant’), concerned approximately 90,000 square kilometres of the mainland of the Northern Territory between the mouth of the East Alligator River in Van Diemen Gulf (in the west) and the mouth of the Roper River in the Limmen Bight (in the east) but excluding Cobourg Peninsula. The other grant, the Arnhem Land Islands Grant (‘the Islands Grant’), concerned all the islands (except Groote Eylandt) in the Northern Territory generally adjacent to the land the subject of the Mainland Grant.

3 The Yolngu people are the traditional owners of parts of Arnhem Land, including areas of Blue Mud Bay. Blue Mud Bay lies within the Mainland Grant. Before the Land Rights Act came into force, Blue Mud Bay fell within the Arnhem Land Reserve created in 1931 ‘for the use and benefit of Aboriginal native inhabitants’ under the Crown Lands Ordinance 1927 (NT) and under subsequent Northern Territory Ordinances dealing with reserves.

4 Both grants made under the Land Rights Act described the interest granted as ‘an Estate in Fee Simple’. The Land Trust must exercise its powers as owner of the land ‘for the benefit of the Aboriginals concerned’ 2. The Land Trust must act in accordance with the directions of the relevant Land Council 3 — the Northern Land Council — and the functions of the Land Council, under the Land Rights Act, include the protection of the interests of the traditional Aboriginal

owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council 4.

5 Both grants were subject to the provisions of the Land Rights Act and to some conditions, exceptions and reservations. Each extended to low water mark and included areas bounded by straight lines joining the seaward extremities of the banks of rivers, streams and estuaries intersecting the coast. The grants encompass the area of land that is covered and uncovered by water at different times of the day, depending upon the position of the tides (‘the intertidal zone’). In addition, rivers and estuaries are affected by the ebb and flow of the tides and tidal waters therefore extend landward of the straight line boundaries of the grants.

6 The Land Rights Act refers 5 to land the subject of grants, like the Mainland Grant and the Islands Grant, as ‘Aboriginal land’. Section 70(1) of the Land Rights Act provides that ‘[a] person shall not enter or remain on Aboriginal land’ and prescribes a penalty for doing so. The general prohibition in s 70(1) is qualified in several respects by other provisions of the Land Rights Act and it will be necessary to describe and examine those qualifications in more detail. Immediately, however, it is sufficient to notice that in proceedings for an offence against s 70(1) it is a defence 6 if the person enters or remains on the land ‘in performing functions under [the Land Rights] Act or otherwise in accordance with [the Land Rights] Act or a law of the Northern Territory’. One law of the Northern Territory relevant to s 70(1) and the defence for which s 70(2A) provides is the Aboriginal Land Act (NT) (‘the Aboriginal Land Act’). Under the Aboriginal Land Act 7 the relevant Land Council may grant permission to enter and remain on Aboriginal land. Power to enact such a law was given to the

Legislative Assembly of the Northern Territory by s 73(1) of the Land Rights Act 8.

7 This appeal is brought by the Northern Territory and the Director of Fisheries for the Northern Territory against orders of the Full Court of the Federal Court of Australia. That Court made declarations about the application and validity of the operation of the Fisheries Act in areas within the boundary lines described in the Mainland Grant and the Islands Grant and about whether the Fisheries Act confers power to grant a licence which would authorise or permit the holder to enter and take fish or aquatic life from areas subject to those grants.

8 As mentioned at the outset of these reasons, the central issue in this appeal is whether, without permission from the Land Trust, a person holding a licence under the Fisheries Act can fish in the intertidal zone within the boundaries of either the Mainland Grant or the Islands Grant, or in the tidal waters within those boundaries. To resolve that issue it will be necessary to consider two questions. Is fishing in those waters to enter or remain on Aboriginal land? This question should be answered, ‘yes’. Does a person who holds a licence under the Fisheries Act enter or remain on that land ‘otherwise in accordance with … a law of the Northern Territory’, so as to found a defence to contravention of s 70(1) of the Land Rights Act? This question should be answered, ‘no’.

The proceedings below

9 Two proceedings in the Federal Court of Australia were tried concurrently. One proceeding, instituted by the Land Trust (the first respondent in this Court), the Northern Land Council (the second respondent), and the third respondents in this Court (‘the native title holders’), sought declarations of their rights under the grants that have been described and sought orders restraining both the Director of Fisheries and the Northern Territory itself from issuing fishing licences in relation to areas the subject of claims to native title (which

included areas within the boundaries of the grants). The other proceeding was a claim to native title by persons who included...