Blue Mud Bay - Northern Territory of Australia and Director of

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					Case updates: Blue Mud Bay - Paper given by Romany Tauber – Northern Land Council




Blue Mud Bay - Northern Territory of Australia and Director of Fisheries (NT) v
Arnhem Land Aboriginal Land Trust, Northern Land Council, Native Title Holders,
Northern Territory Seafood Council and Commonwealth of Australia


I would like to start by acknowledging the Ngunnawal people, the traditional owners
of the land on which we stand today.

Today I want to share with you the story of the recent High Court decision in the Blue
Bay case.

I will be talking about the historical context of the case. I’ve got some photos and
maps to give you a better idea of the people and geography of the area. I will give a
summary of the case, and discuss the future implications for Aboriginal people in the
Territory.

The recent High Court decision in the Blue Mud Bay case means that the traditional
owners of the region – together with traditional owners of almost the entire Northern
Territory coastline - have exclusive rights regarding commercial and recreational
fishing in tidal waters overlying Aboriginal land.

This is a land mark decision for Aboriginal people in the Northern Territory. After
years of struggle, the exclusive rights of traditional owners have finally been
recognised by the Australian legal system.




[Blue Mud Bay traditional owners – prepare for dance performance in celebration
of the High Court decision at Garma Festival 2008]

The decision applies to over 80% of the Northern Territory coastline, since Aboriginal
land has been granted as freehold to the low water mark of the coastline since the
1970s.
Case updates: Blue Mud Bay - Paper given by Romany Tauber – Northern Land Council


For those of you who aren’t aware, the intertidal zone is the area below the high-water
mark and above the low-water mark on the coast and in tidal rivers. In northern
Australian waters, the intertidal zones are generally large areas, given the huge tidal
ranges that can vary sea levels by up to 8 metres in a single day. The distance
between high and low water marks can be very large given the tidal range. This is
very different to tides in other parts of Australia.

Most commercial and recreational fishing in the Northern Territory occurs in the
intertidal zone.

Historical context:

Traditional owners have waited for almost 50 years for sea rights to be legally
recognised. In the late 1950s Yolngu1 became aware of people prospecting for
minerals in the area of the Gove Peninsula, and shortly after, discovered that mining
leases had been taken out over 36,000 hectares of their traditional land. Their
response, in 1963, was to send a bark petition to the Commonwealth Government
demanding that their rights be recognised. This resulted in a committee of inquiry into
the affairs of the Yirrkala people. The mining leases went ahead. The people of
Yirrkala then took the Commonwealth to court to try to prevent the mining going
ahead. The case was lost in 1971. That was Milirpum v Nabalco, or the Gove Land
Rights (as it is commonly known), a seminal moment in the land rights campaign.

Although the Yolngu right to their land was then rejected, the case prompted the 1973
Woodward Royal Commission into land rights, and the enactment of the Aboriginal
Land Rights (Northern Territory) Act in 1976. With the passage of the Act the
Arnhem Land Aboriginal Reserve and most other reserves became Aboriginal-owned
land.

Justice Woodward reported that “Aborigines generally regard estuaries, bays, and
waters immediately adjacent to the shoreline as part of their land”, and recommended
“that the definition of Aboriginal land where a coastline is involved should include
both off-shore islands and waters within two kilometres of the low tide line”. This
recommendation was not adopted.

Woodward also stated that “the legitimate interests of Aborigines will be protected if
their traditional fishing rights are preserved and their right to the privacy of their land
is clearly recognised by the establishment of a buffer zone of the sea which cannot
legally be entered by commercial fishermen or holiday makers”.

During the inquiry Yolngu people asserted that their rights extend greater than two
kilometres out to sea. Some Yolngu communities wished to protect not only their
traditional methods of food gathering but also to develop commercial fishing
ventures.

The mainland coastline of the Northern Territory is 5,100 kilometres long, of which
approximately 72% is Aboriginal land. Offshore islands encompass a further 2,100
kilometres of coastline of which more than 95% is Aboriginal land. Thus

1
    Yolngu refers to Aborginal people of north-east Arnhem Land
Case updates: Blue Mud Bay - Paper given by Romany Tauber – Northern Land Council


approximately 5,670 kilometres, over 80% of the total Territory coastline, is
Aboriginal land.


Blue Mud Bay - Location in NT




Blue Mud Bay is several hundred kilometres south of Yirrkala and of the Nabalco
bauxite mine, which is now owned by Rio Tinto. It includes part of the estates of six
Dhuwa moiety clans. Other clans have interests in the area through ceremonial links,
and by marriage and descent through women of these clans. The ceremonial and
marriage systems connect people widely across the Yolngu region.




Blue Mud Bay – Yilpera



Blue Mud Bay Land Rights Act and Native Title Case
(Gawirrin Gumana v Northern Territory)
Case updates: Blue Mud Bay - Paper given by Romany Tauber – Northern Land Council




The Blue Mud Bay case was lodged in 2002, having been formulated for the purpose
of resolving outstanding Land Rights Act and native title legal issues - including the
legality of commercial fishing in tidal waters above Aboriginal land in Blue Mud Bay.

The claim was formulated to include both land and adjoining seas regarding two bays
within Blue Mud Bay. The purpose of this approach was to maximise the prospect
that the Court would comprehensively appreciate Aboriginal law and custom –
particularly that land and sea country under traditional law are not distinguished.

The case was heard by the late Justice Selway of the Federal Court in August and
September 2004 at Yirrkala, with site visits to Yilpera and other areas at Blue Mud
Bay. Legal submissions occurred in November 2004.


Federal Court Hearing




Garriwin Gumana – principal applicant

On 7 February 2005 Justice Selway delivered his judgement.

In relation to native title, Justice Selway followed Yarmirr v Northern Territory
(2001) and held that native title existed in Blue Mud Bay, and characterised it as ‘non-
exclusive’ and ‘non-commercial’.

In relation to Aboriginal land, Justice Selway considered he was bound by the Full
Federal Court in Yarmirr to hold that commercial fishing could lawfully occur in tidal
waters above Aboriginal land. However Selway J made clear that, if not so bound, he
would have found in favour of the traditional owners and the Land Trust.

In his detailed judgement Justice Selway stated (at para 69 of judgement):
Case updates: Blue Mud Bay - Paper given by Romany Tauber – Northern Land Council




        “The Land Rights Act and the grant made pursuant to it, give to the Land Trust
        an estate in fee simple to the low water mark. If the issue was free of authority
        I would have thought that s 70 of the Land Rights Act excluded persons from
        the waters to the landward of the low water mark. If it were free of authority I
        would also have thought it reasonably clear that the land grant was a grant of a
        right of exclusive occupation over the area (including waters) to the landward
        of the low water mark including the arms of the sea and the tidal foreshore and
        that that right excluded public rights such as the public right to fish or the
        public right to navigate.

        …

        If the issue were free from authority then in my view the grant of a statutory
        fee simple to the low water mark would abrogate the public rights to fish and
        navigate in the inter-tidal zone.”

In expressing this opinion Justice Selway referred to the High Court's comments in
Risk (Risk v Northern Territory (Beagle Gulf Area Land Claim), and the Woodward
reports. Justice Selway drew a distinction between grants of freehold pursuant to the
King's prerogative powers (which are subject to the public right to fish and navigate)
and grants of freehold pursuant to a statute (such as Aboriginal land).

This is the legal distinction relied on by the High Court in Wik whereby it was held
that pastoral leases granted under a statutory scheme did not extinguish all native title
rights.

Justice Selway's detailed analysis regarding the intertidal zone issue provided a strong
basis for appeal to the Full Federal Court, and subsequently to the High Court.


Full Federal Court decision 2 March 2007

On 2 March 2007, the Full Court of the Federal Court (French, Finn and Sundberg JJ)
upheld an appeal and held that a grant of freehold as Aboriginal land includes the
right to exclude commercial fishing from tidal waters.

The Court's decision also applied to amateur fishing. It became unlawful for an
amateur fisher to take fish or aquatic life from tidal waters overlying Aboriginal land
without a licence from the Land Trust and a permit from the NLC.

The Amateur Fishing Association of the Northern Territory (AFANT) was not a party
to the case because amateur fishing does not occur at Blue Mud Bay. However legal
argument in support of the public right to fish, and amateur fishing, was put to the
Court by the NT Government.

The Full Court also held that the Territory has no power to grant fishing licences
regarding such waters, since that power is vested by Commonwealth legislation in the
relevant Land Trust. The Full Court relied on the legislative history of the Land
Case updates: Blue Mud Bay - Paper given by Romany Tauber – Northern Land Council


Rights Act including the Woodward reports to support its judgement. (Native title
issues were also raised on appeal which are not presently relevant.)

The Full Court also held that the NT Fisheries Act was invalid.

The Territory and Director of Fisheries applied for a stay of the Full Court's decision
in favour of the status quo. All parties, including the Aboriginal parties, consented to
the stay. In that regard the Aboriginal parties have publicly stated for some years that,
if successful in this proceeding, there will be an amnesty of at least 12 months in
favour of the status quo so as to enable an ordered and consultative transition to an
alternative licensing scheme.

On 16 March 2007 the Full Court held that it had no power to suspend the effect of its
decision, on the basis that a Court cannot logically suspend its declaration of the law.
Accordingly, in the alternative, the parties agreed in principle to implement an
alternative mechanism in favour of the status quo until the High Court resolved any
appeal.

By 2 April 2007, the NLC announced that agreement had been reached with the NT
Government and the NT Seafood Council as to an interim licensing scheme which
ensures commercial and recreational fishing in tidal waters overlying Aboriginal land.

The Northern Land Council shortly issued interim and conditional fishing licences so
as to achieve the outcome. This involved the grant by Land Trusts of interim
commercial fishing licences to the industry regarding tidal waters overlying
Aboriginal land, and also permits and licences being similarly issued to recreational
fishers on request. These licences include conditions which to the extent feasible
incorporate the environmental and fisheries protection provisions in and under the
Fisheries Act 1988.

The Amateur Fishing Association of the Northern Territory (AFANT) responded to
the decision of the Full Federal Court with outrage, arguing that 40,000 recreational
fishers would be adversely affected.

However, the interim commercial/recreational fishing scheme implemented by the
NLC ensured that all licences and permits were free of charge. There was also no
waiting period as a licence/permit is valid from the moment the application is
received by the NLC.

Commercial licences/permits were automatically granted to all commercial operators,
backdated to 2 March 2007 (the date of the Court's decision).

Recreational licences/permits were granted to all persons who made an application.

Prior to the introduction of the interim scheme, the Northern Territory was the only
remaining state/territory in Australia which did not have a licence or permit system
for recreational fishing.

On 10 April 2007 the Country Liberal Party (CLP) announced it would introduce
legislation into the NT Legislative Assembly to override the Full Federal Court's
Case updates: Blue Mud Bay - Paper given by Romany Tauber – Northern Land Council


decision and authorise recreational fishing in all tidal waters overlying Aboriginal
land. To that end the CLP sought an urgent amendment to the Aboriginal Land Act.

The NT Solicitor-General advised that the NT Legislative Assembly had no power
under the Northern Territory (Self Government) Act 1978 (Cth) to achieve this
outcome, since the right to take fish from tidal waters overlying Aboriginal land is
vested in Land Trusts under Commonwealth legislation (ie the Land Rights Act). Only
the Commonwealth Parliament can alter this law. Section 73(1)(d) of the Land Rights
Act empowers the NT Legislative Assembly to make laws regarding entry to
Aboriginal land, not to take fish from that land (thus the Aboriginal Land Act (NT)
deals only with the right to enter Aboriginal land, not the taking of fish).

On 21 June 2007 the High Court granted leave to the Northern Territory to appeal the
Full Federal Court's decision.

High Court appeal

The Northern Territory's appeal was heard in December 2007. The Commonwealth
and the NT Seafood Council made submissions in support of the Northern Territory.
The High Court reserved its decision.




Blue Mud Bay traditional owners attend their hearing at the High Court in December 2007

On 31 July 2008 the High Court dismissed the Northern Territory's appeal by a
majority of 5 to 2. Gleeson CJ, Gummow, Hayne, Crennan and Kirby JJ were in the
majority, with Heydon and Kiefel JJ in dissent.

The High Court held that Aboriginal land in the Northern Territory includes exclusive
rights regarding commercial and recreational fishing in tidal waters overlying
Aboriginal land in the intertidal zone and tidal rivers to the low water mark.

It was a joyful day for traditional owners.
Case updates: Blue Mud Bay - Paper given by Romany Tauber – Northern Land Council




Outside the high court registry in Darwin. L to R: Bobby Wunumurra,
Samuel Bush-Blanasi (NLC Deputy Chairman), Waka Munungurr,
Wali Wunnumurra (NLC Chairman), Djambuwa Marawili



The High Court also held that a licence from a Land Trust is required to enter to fish
in tidal waters overlying Aboriginal land because:
• the common law public right to fish in tidal waters was extinguished by NT
     fisheries legislation some decades ago; and
• a commercial fishing licence granted under the Fisheries Act (NT) does not
     authorise entry to tidal waters overlying Aboriginal land to take fish.

The High Court also agreed with the parties that the environmental protection and
other provisions in the Fisheries Act apply regarding all waters in the Northern
Territory, including in relation to Aboriginal land, and upheld the appeal to that
extent.

This means that commercial and recreational fishing can only occur in tidal waters
overlying Aboriginal land pursuant to a licence from a Land Trust and with the
permission of the traditional owners.

Commercial operators will still need a commercial fishing licence under the Fisheries
Act (NT), and all environmental protection and policing provisions apply.

The 3 relevant Land Councils, Northern, Tiwi, and Anindiliyakwa have confirmed
that the interim licensing regime will be extended for at least 12 months so as to
enable good faith negotiations between all stakeholders.

This means that traditional owners must now be included in any discussions and
agreements about fishing, or any other business, on their lands to the low water mark.
It also means that traditional owners can protect sacred sites in the sea and take better
care of country.
Case updates: Blue Mud Bay - Paper given by Romany Tauber – Northern Land Council


As traditional owner Djambawa Marawili said recently – “there has to be real contact
with the landowners so both Yolngu and balanda2 are looking after the land, doing
hand-in-hand, partner-to-partner, together”.




[Traditional owners perform a fire ceremony. The fire represents eradicating
previous arrangements to make way for a new scheme which is beneficial
to traditional owners. ]

Most importantly, this means Yolngu and other Aboriginal people along the Territory
coastline will for the first time be able to develop a true partnership regarding
commercial and recreational fishing to achieve a win-win outcome for all Territorians.

The historic implications of the questions facing the High Court in the Blue Mud Bay
case were not lost on Justice Michael Kirby. In his separate decision in agreement
with the majority, Justice Kirby stated: “the Court does not operate in an ivory tower.
The National Apology [by Prime Minister Rudd on 13 February 2008] acknowledges
once again, as the preamble to the Native Title Act 1993 already did, the wrongs done
in earlier times to the indigenous peoples of Australia, including by the law of this
country. Those wrongs included the non-consensual denial and deprivation of basic
legal rights which Australian law would otherwise protect and uphold for other
persons in the Commonwealth. In the case of traditional Aboriginals, these right
included rights to the peaceful enjoyment of their traditional lands and to navigate and
to fish as their ancestors had done for aeons before British sovereignty and
settlement.”




2
 Balanda refers to non-Indigenous people. Balanda comes from Hollander as a result of early contact
with dutch traders.

				
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