The Northern Territory is a Commonwealth territory and hence Commonwealth laws prevail over NT laws by paramount force.

Section 35 of the Northern Territory (Self-Government) Act 1978 (Cth) provides:

” The regulations may specify the matters in respect of which the Ministers of the Territory are to have executive authority.”

Regulation 4(1) specifies the NT Ministers’ heads of executive authority. Regulation 4(2) provides:

“(2) Subject to subregulation (6), a matter specified in subregulation (1) shall not be construed as including or relating to:

(a) the mining of uranium or other prescribed substances within the meaning of the Atomic Energy Act 1953 and regulations under that Act as in force from time to time; or

(b) rights in respect of Aboriginal Land under the Aboriginal Land Rights (Northern Territory) Act 1976 .”

Subregulation 6 inter alia provides that subregulation 2 doesn’t apply where another Commonwealth law grants executive authority to the NT executive government.

Section 73 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) gives the Northern Territory the power to establish and administer a regime for issuing of permits to enter Aboriginal land (including to fish), and it has done so by enactment of the Aboriginal Land Act (NT). However section 70 of the ALRA provides:

(1) A person shall not enter or remain on Aboriginal land.

Penalty: 10 penalty units.

(2) Where a person, other than a Land Trust, has an estate or interest in Aboriginal land:

(a) a person is entitled to enter and remain on the land for any purpose that is necessary for the use or enjoyment of that estate or interest by the owner of the estate or interest; and

(b) a law of the Northern Territory shall not authorize an entry or remaining on the land of a person if his or her presence on the land would interfere with the use or enjoyment of that estate or interest by the owner of the estate or interest.

It’s a fairly convoluted regime, but the net result is that the NT government can only issue permits with the consent of TOs (in fact the Aborigina Land Act (NT) provides for issue of permits by the land councils and by TOs themselves), and the TOs are in a position to block any attempt to authorise fishing on Aboriginal land without that consent, whether by legislative or executive action.

In that sense at least the Fisheries Act applies on ALRA land as elsewhere. But it doesnt, and cant, authorise people to fish on Aboriginal land.

I understand the “doesn’t”, Ken, but not the “can’t”; otherwise what is the “without more” in the court’s getting at?

Why would not an amendment to the Fisheries Act authorising fishing of the intertidal zone within an aboriginal land grant not be a “law of the Northern Territory” under s 70(2A)(h) and thus a defence against entering or remaining without a permit?

And if by some miracle the opposition attained government in the upcoming election, they would not be able to get any better a deal than a re-elected Labor government. I am pretty sure most NT voters understand this.

I am not as convinced as Ken that there will be (metaphorically) bloody insurrection over this one. A lot of people I know up here do not go fishing, and could not care less about it, at least not enough to do anything about it or change their vote. Territory politics is changing and maturing, the ‘wild colonial frontier’ days have largely passed, and simply waving those tired old myths around, like the opposition is doing with statements to the effect of ’strong leadership is needed to defend Territorian’s freedoms’, don’t have anywhere near the power they used to. What are they suggesting the NT government can do? Ignore constitutionally binding legal judgements? Secede from the Commonwealth? Threaten to hold their breath?

All a bit of a storm in a teacup, I suspect, maybe of very slightly more political significance than the speed limits issue, but one which nevertheless will not fundamentally alter the outcome of the NT election.

If the land councils have any sense, though, they’ll play it all down with promises of extreme moderation (“no current intention … just wanted the principle recognised”, etc), at least until after the election. From this distance it sounds to me as though the land councils and recreational fishermen will have a big opportunity later to each get what they want (ie a revenue stream for one and lots and lots of fish for the other) at the expense of the commercial fishermen.

And then we cut off their internet access.

Nah, just get Kevin Andrews to introduce a private member’s bill.

There is now a chance that they will be able to set up a system that will allow the land owners to obtain some benefit from their land from the commercial operators just as everyone else does.

As for the recreational fishers, a permit system would make sense and not be a tremendous impost. You need one everywhere else in Australia and in every other country where I have felt inclined to wet a line. I wouldn’t expect such a permit to be cost much. You already need one for land and they are not expensive.

Hendo would be best advised to pop his penchant for populist pap into his back pocket bringing out when it is really necessary. He would have gained a lot more by showing intelligence, judgement and perhaps even leadership.

And then we cut off their internet access.

But before we get too excited, this country desperately needs to reform the land councils. Preferably abolish them. They help a few bureaucrats and hold back he development of the majority of the aboriginal population.

For ages everybody’s been urging aboriginals to move on from this protected and subsidized womb of reservations towards economic self-sufficiency. Now we have a court decision which may offer an opportunity for such and there’s panic and outrage.

Well, we shouldn’t be too surprised. Mabo and WIC led to similar outcries elsewhere.

The boundaries of ALRA land are generally defined by the low water mark abutting coastal land and by straight lines drawn across the mouths of bays, estuaries, rivers etc. The areas of tidal waters (i.e. between high and low tide marks) inside those lines are the areas in which TOs have been held by the High Court to have exclusive rights to control access. Because tidal variation in the NT is huge (up to 8 metres) the intertidal zone comprises most of the areas where people want to fish. There are certainly reefs and other good fishing spots further out to sea beyond the intertidal zone, but in most places it’s difficult if not impossible to access them without crossing Aboriginal land and waters in the first place. Hence the rights given by the Blue Mud Bay case are very commercially valuable.

Is there a territorial limit?

If NT political journos know their stuff …

That’s where you lost me.