The High Court decision in the NT government appeal [Northern Territory of Australia v Arnhem Land Aboriginal Land Trust  HCA 29 (30 July 2008)] against the finding of the full bench of the federal court in Gawirrin Gumana & Ors v Northern Territory (the Blue Mud Bay case) was handed down in the middle of the NT election campaign.
This is unfortunate timing that may elicit a political response to an important judgment that will have significant positive ramifications for Indigenous economic development.
To summarise, the High Court did not question that a grant of freehold as Aboriginal Land under the Aboriginal Land Rights (Northern Territory) Act 1976 extended to the low water mark. And it upheld the view that the NT government did have the power to grant commercial fishing licences. However, the NT government does not have the right to allow commercial fishers entry to tidal waters over Aboriginal-owned land.
This decision is complex, being linked to Northern Territory historical and legal particularities. Part of this complexity is in the interaction between the Aboriginal Land Rights Act passed in 1976, NT fisheries laws, and NT Self Government granted in 1978. The Fisheries Act purported to have authority to grant commercial fishers a right of access to the inter-tidal zone, but this week’s decision quashed this view in favour of the exclusive right of traditional owners over this zone and the marine property within it.
This is clearly an unprecedented situation in Australia whereby the granting of fishing licences will need to be negotiated with Indigenous interests for an intertidal zone that extends for over 5,000 kilometres of the NT coastline. The Northern Land Council, representing Aboriginal traditional owners over this vast coastline, has sensibly allowed commercial and recreational fishers an amnesty of 12 months to allow transition to fisheries arrangements that will require new processes and associated administrative capabilities to be instituted. The NT Seafood Council has responded positively to the High Court decision and the offer of amnesty with a view to a negotiated outcome.
The situation for recreational fishers is somewhat different. The recognition of the intertidal zone as Aboriginal-owned along 80 per cent of the NT coastline means that these fishers will now require a permit from traditional owners to fish. This is no different from the permission that a recreational fisher would require to fish over any other privately-owned land in Australia. Recreational fishers do have the amnesty, but are nevertheless required to apply for a permit that will be automatically issued for now.
The fact that recreational fishers have undertaken such activity without a permit in the past does not justify any calls for compensation from either NT or Commonwealth governments as sought by the NT Amateur Fishers Association. The Northern Land Council Chairman Wali Wunungmurra has made it quite clear that requests for recreational fishers for access to Aboriginal land will need to be conducted on a case-by-case negotiated basis. There are already precedents in place where recreational fishing is allowed without a permit in heavily used fishing spots.
The NT Chief Minister has committed to develop a practical plan that will guarantee the capacity for recreational fishermen to go fishing on affected waters without charge or need for an individual fishing permit. This commitment, made during the current election campaign, could be difficult to deliver as it ultimately will be contingent on the views of traditional owners, many of whom live in very remote areas hardly ever accessed by recreational fishers.
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The High Court decision provides the plaintiffs, Yolngu traditional owners from Blue Mud Bay (and now all traditional owners with coastal estates) with a level of protection of the intertidal zone from commercial and recreational fishers that they have actively sought since the passage of the Land Rights Act. While recognising their exclusive rights to species in the inter-tidal zone, it does not automatically bestow a right to sell inshore species like barramundi or mud crabs commercially. There is clearly room for innovative negotiation to ensure delivery of commercial rights over marine species to Aboriginal owners of the inter-tidal zone.
There is no doubt that this is a very positive outcome for those coastal traditional owners who have argued for decades that commercial and recreational fishing in the inter-tidal zone impacts negatively on their social, cultural and economic interests.
This decision has fundamentally altered the leverage that these traditional owners will be able to exercise in negotiations with either commercial or recreational fishers who want access to Aboriginal-owned waters. There is some concern that traditional owners might exercise this right to exclude all fishers from the intertidal zone.
But analogous right of consent (or veto) provisions in the Aboriginal Land Rights Act with respect to mineral exploration and mining have not seen the widespread exclusion of such activity from Aboriginal-owned land, despite widespread mining industry concerns in the 1970s and 1980s. Perhaps lessons can be learnt from this precedent?
One can envisage a diverse range of responses including closures of the intertidal zone, negotiated access, and much more joint venturing. Each of these options will generate economic development opportunity for Aboriginal people: through enhanced employment in sea country management and as sea rangers implementing fisheries regulation in remote regions; through better access to marine resources for livelihood; from financial returns for negotiated access rights; or from opportunities for joint venture or sole operator involvement in commercial fisheries. The likelihoods of more sustainable use of marine resources and greater utilisation of Indigenous knowledge alongside western science are enhanced.
Whatever happens there is no question that the “property rights” playing field in the NT in relation to marine resources is now far more level. In a policy environment where the Commonwealth and NT governments are making firm commitments to “close the gap” in socio-economic status between Indigenous and other Territorians this must be seen as a positive in attempts to bridge this difficult gap.