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The High Court’s decision earlier today in the Blue Mud Bay case sets the cat among the pigeons (or maybe the shark among the barramundi) a little over a week out from the Northern Territory election. The Court has dismissed the NT Labor government’s appeal from a decision of the Full Federal Court, and confirmed that the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) gives Aboriginal Traditional Owners the right to exclude access to the intertidal zone and coastal rivers in the Northern Territory, probably over something like 80% of the NT coastline which comprises Aboriginal Land.
It means the Northern Land Council can implement its own licensing regime charging lucrative licence fees for commercial fishermen to continue earning a livelihood, and can also potentially impose a charge for annually renewable permits for amateur fishermen to be allowed to pursue their precious recreational hobby.
The latter threat especially is political dynamite in a pre-election atmosphere. Every person and their dog in the NT (except yours truly) is a recreational fisherman, and their lobby group AFANT is extraordinarily powerful. Fishing has been every Territorian’s inalienable right until now, subject only to bag limits but certainly with no requirement for a licence or permit. God forbid in this self-styled last bastion of rugged individualism, where real men drink buckets of grog, don’t eat quiche and won’t tolerate open road speed limits or interference with their sacred right to turn Darwin’s suburbs into a Beirut-style war zone every cracker night and for months thereafter.
That’s why the pollies lost no time in staking out their positions on the issue, with CLP Opposition Leader Terry Mills asserting that “strong leadership is needed to ensure free access for Territorians”, while Chief Minister Paul Henderson says that he “will guarantee that that access for recreational fishermen will be based on the fact that you won’t need to have a permit”.
The reality is that Henderson isn’t in any position to provide that or any other guarantee. Traditional owners can impose a permit system if they want, and no Territory government has any power to stop them. The federal government could certainly amend the Land Rights Act if it wished to extinguish the right to exclude access to coastal waters that the High Court has found TOs possess, but it’s unlikely to do so because any such amendment would probably trigger a constitutional entitlement for TOs to be compensated on just terms for acquisition of their property rights. Given that these are potentially very valuable rights over a significant part of Australia’s total coastline, it’s likely that the quantum of compensation would be very steep. Hence Federal Minister Jenny Macklin also lost no time in stating that “it does not look as though compensation will become an issue”. She said this was because all stakeholders were approaching the issue constructively, but what she’s really doing is dampening any expectation that the Commonwealth is going to wave a magic legislative wand and extinguish indigenous rights to control access to coastal waters on Aboriginal Land. That is very unlikely to happen.
Realistically, the only way Henderson will be able to make good on his “guarantee” is if the NT government antes up government funds to pay traditional owners an amount each year equivalent to what they could earn by charging permit fees to amateur fishermen. Otherwise why should anyone imagine that TOs would forego exploiting an extremely commercially valuable right that the High Court’s decision has handed them? If NT political journos know their stuff, the first question they’ll be asking Paul Henderson is how he proposes making good on that “guarantee” to amateur fishermen. The next week or so promises some great politico-legal entertainment here in Darwin.
The ABC coverage misreads the decision in that respect. The High Court certainly held that the Fisheries Act regulatory functions may apply on Aboriginal land as elsewhere. The ALRA does not give Aboriginal people sovereign power over their land. But what the HC decided in the Blue Mud Bay decision was that the Fisheries Act did not even purport to confer permission to fish in any particular place, Aboriginal land or elsewhere. All it did was to specify where you CAN’T fish, maximum bag limits etc. Nevertheless, the ALRA confers inalienable freehold title, and if the Fisheries Act (Northern Territory legislation) had purported to authorise people to enter and fish on ALRA land, it would have been invalid to that extent by paramount force of the land grant under Commonwealth law (a bit like a s109 inconsistency argument). A NT law could not authorise people to enter and fish on private inalienable freehold land created under Commonwealth law, but can operate in other respects to regulate activity on Aboriginal land. Thus, for example, the species bag limits prescribed by the Fisheries Act would apply on Aboriginal land. In that sense at least the Fisheries Act “applies” on ALRA land as elsewhere. But it doesn’t, and can’t, authorise people to fish on Aboriginal land.
gives Aboriginal Traditional Owners the right to exclude access to the intertidal zone and coastal rivers in the Northern Territory, probably over something like 80% of the NT coastline which comprises Aboriginal Land.
Joe
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.
No doubt you’re right on the local politics of the situation, Ken. To us Southerners, however, there is a lot of irony in it.
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.
I agree with the idea of giving national land (and water) to aboriginals as free-hold.
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.
Sounds like the NT should be the Australian version of New Hampshire – all the Libertarians in the country should go there, try to set up their utopia.
And then we cut off their internet access.
I have been known to fish in the inter-tidal zones adjacent to land held under freehold title under the ALRA. I have also witnessed the truck loads of fish taken from these zones, particularly in the river mouths, by commercial fishers. The direct result of the activity of the commercials seems to be the reduction of the chances of catching a for for locals who depend on them for food.
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.
Na, Mangoman, in politics medals for that sort of leadership are always awarded posthumously. Henderson’s doing what he has to do – neither justice nor good policy come into it. Permits may turn out to be a modest impost, but they’ll be a great thing for an opposition to spread fear about.
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.
My bet is there will be a negotiated settlement with the traditional landowners and the whole thing will all blow over soon.
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.
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?
Alphonse
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:
Regulation 4(1) specifies the NT Ministers’ heads of executive authority. Regulation 4(2) provides:
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:
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.