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Court and Tribunal Decisions - Australia
High Court of Australia (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ)
30 May 2002
Land rights — definition of ‘Crown Land’ — Claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3(1) areas of the seabed of bays and gulfs within the limits of the Northern Territory — whether the seabed of bays and gulfs amenable to claim — whether ‘land in the Northern Territory’ includes the seabed of bays or gulfs
In May 1997, the Northern Land Council, on behalf of the appellant and others, applied under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act) for determination of a claim. The application, to an Aboriginal Land Commissioner appointed under Part V of the Land Rights Act, claimed unalienated Crown land in the Beagle Gulf Area. The claim was for all that land in the Northern Territory which is adjacent to, and seawards of the low water mark of the seacoast of the mainland from a point in the west described as the northernmost point of the western boundary of an area of Aboriginal land to, in the east, the point where the western bank of the Adelaide River meets the low water mark of the seacoast of the mainland.
The Aboriginal Land Commissioner determined that so much of the area claimed adjacent to, and seaward of, the low water mark of the seacoast of the Northern Territory or of any island adjacent thereto, including the bed of any bays or gulfs of the mainland or of any such islands, is not land which may properly be the subject of an application pursuant to s 50(1)(a) of the Land Rights Act.
The Full Court of the Federal Court dismissed an application to review that decision made under s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). By special leave, the appellant appealed to the High Court.
1. Per Gleeson CJ, Gaudron, Kirby and Hayne JJ: The competency of the claim depended on whether the area claimed fell within the meaning of the words ‘land in the Northern Territory’: [22].
2. Per Gleeson CJ, Gaudron, Kirby and Hayne JJ: The area claimed was not ‘land in the Northern Territory‘ because:
(a) (McHugh, Gummow and Callinan JJ agreeing) The Land Rights Act strongly indicated that the seabed was not included in ‘land’ because the ordinary meaning of the word ‘land’ was not apt to include the seabed, and the text of the Land Rights Act did not require that ‘land’ be so construed: [26], [29], [61], [92], [128].
(b) The nature of the interest granted to a land trust under the Land Rights Act suggest that the seabed is not intended to be included: [32].
(c) (McHugh, Gummow and Callinan JJ agreeing) Any doubts about the construction of ‘land’ are put to rest by consideration of the reports of the Land Commissioner and legislative history of the Land Rights Act which did not refer to any provision for rights in relation to the seabed: [35], [67] ,[84], [128].
3. Per Gummow J: The operation of the Native Title Act 1993 (Cth) in respect of the sea, seabed and subsoil below the low water mark answers the appellant’s contention that a failure to extend the Land Rights Act to the seabed leaves a gap in the federal legislative protection for traditional rights and interests of Aboriginal people in the Northern Territory: [79].
1. The central question in this appeal is whether the seabed of bays or gulfs within the limits of the Northern Territory can be the subject of claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the Land Rights Act‘). This question was answered in the negative by an Aboriginal Land Commissioner (Olney J) and by the majority of the Full Court of the Federal Court of Australia (French and Kiefel JJ; Merkel J dissenting). That answer was correct. The seabed of bays and gulfs within the limits of the Northern Territory cannot be subject to a claim under the Land Rights Act. That is not to say, however, that under the Native Title Act 1993 (Cth) (‘the NTA’) a claim cannot be made to what that Act refers to as ‘land’ or ‘waters’ in that area. Section 210 of the NTA provides that nothing in that Act affects the rights or interests of any person under, among other Acts, the Land Rights Act. Whether any claim made under the NTA would succeed is, of course, a question that was not debated in, and is not decided by, this appeal.
...
5. In order to deal with the issue that now arises, it is necessary to understand the way in which the Land Rights Act operates. Passed in 1976, before the enactment of the Northern Territory (Self-Government) Act 1978 (Cth), the Land Rights Act provides for the making of grants of an estate in fee simple in land to Aboriginal Lands established under the Act. Nothing turns on the amendments that were made in consequence of the Northern Territory attaining self-government.
6. The Land Rights Act provides for the establishment of Aboriginal Land Trusts: ‘to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission’. A Land Trust so established is bound to exercise its functions in relation to land held by it in accordance with directions given to it by the relevant Aboriginal Land Council established under the Land Rights Act.
7. The Land Rights Act requires that Aboriginal Land Trusts be established to hold certain areas referred to in the Act as ‘the Crown land described in Schedule 1’...
...
9. ... the Land Rights Act also provides for claims to be made to, and for grants to be made of, areas other than those described in Sched 1 to the Act. Application may be made to an Aboriginal Land Commissioner by, or on behalf of, Aboriginals claiming to have what the Land Rights Act refers to as ‘a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals’. On such an application being made, the Commissioner is bound to ascertain whether those Aboriginals, or any other Aboriginals, are the traditional Aboriginal owners of the land, and then to report his findings. Where the Commissioner finds that there are Aboriginals who are the traditional Aboriginal owners of the land, the Commissioner makes recommendations to the relevant Minister for the granting of the land, or any part of it, in accordance with the Act.
10. ... the provisions of the Act which deal with claims to areas other than those described in Sched 1 use terms (particularly the terms ‘traditional land claim’ and ‘traditional Aboriginal owners’) to which the Land Rights Act assigns particular meanings. (Each definition is expressed to be subject to a contrary intention appearing, but it was not suggested that it was necessary, in this case, to depart from the meaning assigned by the Act.) Several of these definitions must be noted. First, because s 50(1) provides for the making of claims by or on behalf of ‘Aboriginals claiming to have a traditional land claim to an area of land’ the definition of ‘traditional land claim’ is important. It is defined as: ‘a claim by or on behalf of the traditional Aboriginal owners of the land arising out of their traditional ownership.’
In turn that directs attention to the expression ‘traditional Aboriginal owners’. That is defined as:
a local descent group of Aboriginals who:
(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and
(b) are entitled by Aboriginal tradition to forage as of right over that land.
It will be noted that the definition of ‘traditional Aboriginal owners’ has two elements — spiritual affiliation and entitlement by Aboriginal tradition to forage as of right over the land.
11. ‘Aboriginal tradition’ is also a term defined in the Act. It is defined as: ‘the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.’
12. Claims may be made under s 50(1) of the Land Rights Act only to unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals. ‘Crown land’ is defined. ... ‘Crown Land’ means land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple in the land, or land that has been so alienated but has been resumed by, or has reverted to or been acquired by, the Crown, but does not include:
(a) land set apart for, or dedicated to, a public purpose under an Act; or
(b) land the subject of a deed of grant held in escrow by a Land Council.
Both ‘alienated Crown land’ and ‘unalienated Crown land’ are so defined as to exclude land in a town from the land that may be the subject of a claim under the Land Rights Act ...
...
14. If an Aboriginal Land Commissioner makes a recommendation, in a report made under s 50(1)(a), that an area of Crown land should be granted to a Land Trust, and the Minister is satisfied that the land should be granted, the Minister is obliged to take certain steps. Those steps are: to establish a Land Trust or Trusts, to ensure that estates and interests in the land not held by the Crown are acquired by the Crown, and then to make a recommendation to the Governor-General that a grant of an estate in fee simple in the land be made to the relevant Land Trust or Trusts. A deed of grant made pursuant to a recommendation of the Minister is to be expressed to be subject to certain reservations of rights to minerals and rights to explore for minerals, and shall exclude land on which there is a road over which the public has or, at a specified earlier time, had a right of way. On the application of a Land Trust to which the deed of grant of an estate in the land is delivered, the appropriate officer under the laws of the Northern Territory relating to the transfer of land is then bound to register, and otherwise deal with, the deed of grant under that law according to its terms. By this path, the relevant Land Trust would become registered as the owner of an estate in fee simple in the land (subject to the reservations and exceptions earlier mentioned).
15. Land held by a Land Trust for an estate in fee simple (and land the subject of a deed of grant held in escrow by a Land Council) is defined as ‘Aboriginal land’ in the Land Rights Act. Part VII of the Land Rights Act makes a number of provisions affecting what may be done with, or on, that Aboriginal land. It may not be resumed, compulsorily acquired, or forfeited under any law of the Northern Territory. Roads may not be constructed over Aboriginal land ...
16. Particular reference must be made to the provisions regulating entry on, and use or occupation of, Aboriginal land. Section 70(1) provides that: ‘Except in the performance of functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory, a person shall not enter or remain on Aboriginal land.’ Contravention of that prohibition is an offence attracting a monetary penalty, but it is a defence ‘if the person charged proves that his entry or remaining on the land was due to necessity’.
17. Section 71 of the Land Rights Act qualifies the operation of s 70(1). It provides that an Aboriginal, or group of Aboriginals, is entitled to enter upon Aboriginal land, and use or occupy that land ‘to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land’.
18. The Land Rights Act further provides for what is described (in the heading to s 73 of that Act) as ‘Reciprocal legislation of the Northern Territory’. The Legislative Assembly of the Northern Territory is given power to make certain kinds of law. Those laws include laws providing for the protection of sacred sites in the Northern Territory, laws regulating or authorising the entry of persons on Aboriginal land ‘but so that any such laws shall provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition’, and laws providing for protection or conservation of wildlife on Aboriginal land.
21. ... the Land Rights Act’s definition of ‘Crown Land’ is the starting point for considering the question at issue in this case. The claim that gives rise to the present matter must fail if what is claimed is not ‘unalienated Crown land’ or ‘alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals’. It not being suggested that what is claimed is alienated land, is it, or could it be, unalienated Crown land? That is, is it, or could it be, ‘land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple in the land’ or having been so alienated ‘has been resumed by, or has reverted to or been acquired by, the Crown’?
22. As is noted earlier, the area claimed was described as ‘land in the Northern Territory’ within certain limits. Whether the whole of the area within the limits given in the application is an area within the Northern Territory is a question the Aboriginal Land Commissioner did not resolve. Rather, attention was directed to whether the bed of any bays or gulfs of the mainland and of adjacent islands is ‘land in the Northern Territory’. It is to that issue which most attention was directed in determining, as a separate issue, whether the claimed area, or any part of it, is land which may be the subject of an application pursuant to s 50(1)(a) of the Land Rights Act ...
23. The Northern Territory Acceptance Act 1910 (Cth) provided for the acceptance of the Northern Territory, as a Territory under the authority of the Commonwealth, and for the carrying out of the agreement that had been made between South Australia and the Commonwealth for the surrender of the Territory by the State to the Commonwealth ...
24. For present purposes, what is notable is that, but for whatever may be the consequence of the inclusion within the geographic limits of the Northern Territory of ‘the bays and gulfs therein, and all and every the islands adjacent to any part of the mainland ... with their rights, members, and appurtenances’, the geographical limits of the Territory ordinarily end at low water mark. Of course, within those limits there will be areas that are permanently inundated, but apart from the bays and gulfs in the mainland, there is no seabed within the areas of the Northern Territory, only the inter-tidal zone on the coast. With that in mind, how is the expression ‘land in the Northern Territory’ to be understood when it is read in the definition of ‘Crown Land’ in the Land Rights Act?
25. There are at least three reasons to conclude that ‘land in the Northern Territory’ does not mean the seabed of bays or gulfs. First, there are strong textual indications in the Land Rights Act that ‘land in the Northern Territory’ does not include the seabed. Secondly, the nature of the interest which is granted to a Land Trust suggests that the seabed is not ‘land in the Northern Territory’. Thirdly, any remaining doubt about the matter is put to rest when regard is had to relevant extrinsic material and the legislative history which lies behind the Land Rights Act.
26. No doubt ‘land’ is a word that can be used in a way that would encompass the seabed. It may be doubted, however, that the word would ordinarily be understood as encompassing the seabed. The distinction between ‘land’ and ‘sea’ is often made. It is only when particular attention must be paid to distinguishing between the two that the distinction can be seen to be attended by the same kind of difficulty as arises in distinguishing between ‘night’ and ‘day’. In each case, the legal geometer who seeks to define the line may find it blurred and indistinct. But that is not to deny either that there is a distinction, or that ‘land’ is ordinarily used in a way that would not include the seabed.
27. Next, there is the fact that (for the reasons given earlier) the ordinary operation of the Land Rights Act will be in relation to areas of land, not in relation to any area of seabed. If it did operate in relation to areas of seabed, that would be exceptional.
28. By far the most important textual indication is, however, to be found in s 73(1)(d). It may readily be accepted that, as the appellant submitted and was recognised in the Full Court of the Federal Court, Aboriginal tradition does not distinguish between ‘land’ and ‘sea’ and that ‘country’ can include ‘sea country’. It must, however, also be recognised that s 73(1)(d) of the Land Rights Act does make the distinction between ‘land’ and ‘sea’. And the evident purpose of s 73(1)(d) is to provide for laws regulating the use of parts of the sea adjoining Aboriginal land while, at the same time, permitting traditional use of those waters.
29. This provision, permitting the Northern Territory legislature to create a two kilometre ‘buffer zone’ of sea adjoining Aboriginal land assumes that the buffer zone thus created is not itself ‘Aboriginal land’. That is, s 73(1)(d) assumes that the strip of sea up to two kilometres wide is not ‘land held by a Land Trust for an estate in fee simple’ or ‘land the subject of a deed of grant held in escrow by a Land Council’. Yet s 73(1)(d) also assumes that there may be Aboriginals who, in accordance with Aboriginal tradition, may enter, and use the resources of, those waters. Those Aboriginals who, in accordance with Aboriginal tradition, may enter, and use the resources of, those waters may not fall within the definition of ‘traditional Aboriginal owners’ in the Land Rights Act. Aboriginal tradition may extend the right to enter and use the resources of an area to individuals, other than the traditional owners of the area. But if the appellant’s contention that there are traditional owners of the area the subject of this claim is right, it would follow that the provision for a two kilometre buffer zone is unnecessary to protect their interests. They are entitled to seek a grant of the land. Nor would it be necessary to protect the interests of those Aboriginals who, though not owners, are entitled to use the waters. Entry by persons in this latter category would not be contrary to s 70 of the Land Rights Act, being an entry of the kind permitted by s 71. It follows that, if the appellant is right, s 73(1)(d) would have little if any useful work to do.
30. This may be reason enough to reject the appellant’s central contention ...
31. ... it may be observed that there is nothing in the Land Rights Act which appears to limit the rights of the holder of an estate in fee simple in land granted under the Act to rights over only the solid substance of the earth’s crust, as distinct from those parts of the superjacent fluid (be it liquid or gas) which can ordinarily be used by an owner. And in the end it may be doubted that the appellant limited the claim that had been made to a claim to the seabed alone, for to do so would deny the existence of one of the two essential elements of the Act’s definition of ‘traditional Aboriginal owners’ as a local descent group of Aboriginals who ‘are entitled by Aboriginal tradition to forage as of right over [the land in question]’. On the face of things, in its primary meanings, the word ‘forage’ seems inapt to activities upon under-sea land, at least when that land is more than a few metres from the shore line. But if the expression ‘forage ... over that land’ is to have application to submerged land, it must be understood as extending at least to fishing in and taking the resources of the sea. The assertion of entitlement to forage over the area the subject of the claim which gives rise to this appeal (an assertion necessarily implicit in the claim) seems contrary to any narrow understanding of the subject of the present claim as being only the seabed, as distinct from the superjacent waters.
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33. Any remaining doubt about the proper construction of the expression ‘land in the Northern Territory’ is put to rest when regard is had, first, to the two reports of the Aboriginal Land Rights Commission which preceded the introduction into the Parliament of the Aboriginal Land (Northern Territory) Bill 1975 (‘the 1975 Bill’) which lapsed on the double dissolution of Parliament on 11 November 1975, and the later enactment of the Land Rights Act, and, secondly, the legislative history of the 1975 Bill and the Land Rights Act ...
34. The 1975 Bill, therefore, provided (in part) that:
... where Aboriginal land adjoins the territorial sea, or internal waters of Australia, appertaining to the Northern Territory, that part of the territorial sea or internal waters so appertaining that is within 2 kilometres of the boundary of the Aboriginal land shall, for the purposes of section 73, be deemed to be part of that Aboriginal land.
But when, following a change of government, the Bill that became the Land Rights Act was introduced, a different solution was adopted. No longer did the Act provide that where Aboriginal land adjoined the territorial sea or the tidal waters of Australia, that part of the sea or waters within two kilometres of the boundary of the Aboriginal land was deemed to be part of it; instead, provision was made in the form of what is now s 73(1)(d). And attempts to amend the Bill for the Land Rights Act by introducing the former provision were rejected. The legislative history of the Land Rights Act, therefore, runs contrary to the appellant’s submissions.
...
36. All this being so, ‘land in the Northern Territory’ when used in the definition of ‘Crown Land’ in the Land Rights Act does not include the seabed of bays or gulfs.
37. The appeal should be dismissed with costs.
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40. The issue in this appeal is whether the bed of a bay or gulf in the Northern Territory is ‘land’ for the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the Land Rights Act’).
41. The Land Rights Act does not define ‘land’ ... s 22(1)(c) of the Acts Interpretation Act 1901 (Cth) ... throws no light on whether the term ‘land’ in federal statutes includes the sea-bed.
42. In its ordinary meaning, ‘land’ means the ‘solid portion of the earth’s surface, as opposed to sea, water’. In certain statutory contexts, however, ‘land’ is capable of referring to the sea-bed. In Goldsworthy Mining Ltd v Federal Commissioner of Taxation, Mason J held that, for the purpose of s 88 of the Income Tax Assessment Act 1936 (Cth), a lease for dredging purposes of the sea-bed was a lease of land. Hence, whether or not land in the Land Rights Act includes the sea-bed depends on the history, context and purpose of the Land Rights Act ...
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50. If a Commissioner makes a report under s 50(1)(a) [of the Land Rights Act] and recommends that an area of Crown land be granted to a Land Trust for the benefit of Aboriginals, the Minister must establish a Land Trust or Land Trusts under s 4 to hold the land, provided the Minister is satisfied that the land should be granted. Upon the fulfilment of all relevant conditions, the Minister must ‘recommend to the Governor-General that a grant of an estate in fee simple in that land be made to that Land Trust.’ The functions of a Land Trust include holding title to land vested in it in accordance with the Land Rights Act. A Land Trust must not exercise its functions in relation to land that it holds ‘except in accordance with a direction given to it by the Land Council for the area in which land is situated’. Where a direction is given, the Trust must ‘take action in accordance with that direction.’ ...
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54. The Land Rights Act also empowers the Minister to establish Aboriginal Land Trusts to hold the Crown land that is described in Sched 1 to the Land Rights Act. Six of the areas referred to in Sched 1 have boundaries that abut the sea. The boundaries are described in terms that make it clear that they do not extend beyond the low water mark of the relevant area. Some of the areas — Bathurst Island, Melville Island and the Arnhem Land Islands — as their names indicate are islands.
...
56. ... s 73 of the Land Rights Act empowers the Northern Territory Legislature, inter alia, to create offshore buffer zones or to close sea areas. It provides:
(1) The power of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 in relation to the making of laws extends to the making of:
...
(d) laws regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition; ...
57. ‘Aboriginal land’ means:
(a) land held by a Land Trust for an estate in fee simple; or
(b) land the subject of a deed of grant held in escrow by a Land Council;
58. However, a law made under s 73 is effective only if it is ‘capable of operating concurrently’ with the Land Rights Act, the laws of the Commonwealth, the National Parks and Wildlife Conservation Act 1975 (Cth) and the regulations, schemes and things done under those Acts.
59. The Northern Territory Legislative Assembly has exercised the power conferred by s 73 by enacting the Aboriginal Land Act (NT). Section 12(1) empowers the Administrator of the Territory to ‘close the seas adjoining and within 2 kilometres of Aboriginal land to any persons or classes of person, or for any purpose’ other than to certain Aboriginal groups. Section 3 gives ‘Aboriginal land’ the same meaning that it has under the Land Rights Act. Section 15 empowers the Land Council for the area to issue permits to enter the seas ‘subject to such conditions as the Land Council thinks fit.’ The section also empowers the ‘traditional Aboriginal owners of an area of Aboriginal land adjoining closed seas’ to issue entry permits subject to conditions. Those who enter or remain on ‘closed seas’ without a permit commit an offence against the Act.
60. No provision of the Land Rights Act refers to the sea-bed. Nor does it expressly authorise the making of applications for rights in respect of the use of waters otherwise than by applications authorised by laws made under s 73. All of its provisions are consistent with the term ‘land’ meaning that solid portion of the earth’s surface above the low water mark of the sea surrounding the Northern Territory and its adjacent islands.
61. It is against this background that the question arises as to whether the term ‘land’ in the Land Rights Act nevertheless encompasses claims in relation to the sea-bed. In my opinion, nothing in the Land Rights Act gives any ground for supposing that ‘land’ in that Act includes the sea or the sea-bed below the low water mark. Indeed, s 73(1)(d) strongly suggests that closure orders made by the Administrator were to be the Act’s only mechanism for protecting the rights of the traditional Aboriginal owners to their ‘sea country’. Section 73(1)(d) operates on the assumption that the ‘waters of the sea’ are not ‘Aboriginal land’ within the meaning of s 3 of the Land Rights Act. That paragraph is almost a conclusive indicator that the sea and sea-bed in the two kilometre buffer zone is not land that can be the subject of a determination under s 50 of the Act. If that is so, it is impossible to conclude that the sea and sea-bed beyond the buffer zone is land that can be the subject of a s 50 determination.
62. There are other indications — although far from conclusive — that the legislation was concerned with land as a solid portion of the earth’s surface above the low water mark. Thus, s 3 makes it an essential condition of the definition of ‘traditional Aboriginal owners’ that they are ‘a local descent group of Aboriginals who ... are entitled by Aboriginal tradition to forage as of right over that land’. The term ‘forage’ includes ‘the act of searching for provisions of any kind’. In that sense, it is wide enough to include fishing in the seas below the low water mark and the recovery of clams, oysters and other edibles attached to or on the sea-bed. But the more natural meaning of the term ‘forage’ is the search for food on land above the low water mark. The historic and primary meaning of the term was and still is ‘food for horses and cattle’. Although in s 3 ‘forage’ obviously has a wider meaning than obtaining food for horses and cattle, it requires a strained construction of the term to regard it as including fishing or the recovery of edibles on or attached to the sea-bed. The natural meaning of ‘forage’ and its association in s 3 with a ‘right over that land’ indicates that ‘land’ in the Land Rights Act is referring to land above the low water mark.
63. Section 11(3) declares that a reference ‘to land shall be read as not including any reference to any land on which there is a road over which the public has a right of way.’ Section 11 also refers to ‘the land, or a part of the land’ and to ‘different parts of the land’. Section 11(1AF) deals specifically with recommendations for grants of land comprised in a road over which the public right of way has ceased to exist. Section 18 deals with the vesting of an estate in fee simple in land in a Land Trust where ‘the land is being occupied or used by a mission with the licence or permission of the Crown’. These sections support the view that in the Act ‘land’ is an entity separate from the sea and the sea-bed.
64. Section 23(2) describes one of the functions of a Land Council as including ‘schemes for the management of wildlife on Aboriginal land’. Significantly, there is no reference to schemes for managing fishing or the taking of edibles from the sea or sea-bed.
65. Section 46, which deals with the terms and conditions on which a grant of mining interests in respect of Aboriginal land may be made, requires an intending miner to make a statement to the relevant Land Council concerning certain matters. They include the ‘amount of vehicular access to and within the affected land with reference to any proposals to construct roads, landing strips or other access facilities’ and ‘the water, timber and other requirements to be obtained from the affected land’. The section is clearly dealing with that part of the earth’s surface that is not covered by the sea. Significantly, the Act makes no provision for mining in the sea or the sea-bed.
66. All of the above sections suggest or at all events confirm that ‘land’ in the Land Rights Act is confined to the solid portion of the earth’s surface above the low water mark.
67. Moreover, the Reports of the Royal Commission and the subsequent history of the legislation in the Federal Parliament strongly confirm this conclusion. They suggest that the Parliament did not intend to confer any rights on Aboriginals to claim title to the seas or sea-bed adjoining those solid portions of the earth’s surface of which they were the traditional owners. Given the terms of the Reports, Parliament must be taken to have known ‘that Aboriginal clans generally regard estuaries, bays and waters immediately adjacent to the shore line as being part of their land.’ Parliament also knew that ‘the waters between the coastline and offshore islands belonging to the same clan’ were regarded as part of their land. Yet not only did the Parliament omit to define ‘land’ as including off-shore areas, it rejected so much of the Royal Commissioner’s draft Bill as gave title to ‘off-shore islands, and waters within two kilometres of seaward of the low tide lines’ in relation to the areas described in Sched 3. Instead, it gave the Legislature a general power to make laws regulating or prohibiting the entry of persons and the controlling of fishing and other activities in sea waters within two kilometres of Aboriginal land. The terms of s 73 and the other sections to which I have referred make an almost unanswerable case for concluding that neither the sea nor the sea-bed below the low water mark is land for the purpose of this Act.
68. The appeal should be dismissed with costs.
69. This appeal from the Full Court of the Federal Court (French and Kiefel JJ; Merkel J dissenting) raises a question of construction of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the Act’) ...
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73. The circumstances leading up to the introduction of the Act and the scheme of the Act appear from the judgment of Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd. The circumstances identified by his Honour included the second and final Report (‘the Report’) made by Sir Edward Woodward under a Commission to inquire into and report, among other things, upon the appropriate means to recognise and establish the traditional rights and interests of Aboriginals in and in relation to land. In construing the Act, it is appropriate to have regard to the recommendations of the Report ...
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77. There is no definition of ‘land’. The majority of the Full Court determined that (a) the ordinary legal meaning of ‘land’ does not extend to the seabed of coastal waters beyond the low water mark and (b) to define ‘land’ as used in s 50 of the Act so as to cover the seabed of bays and gulfs within the limits of the Northern Territory would be artificially to extend the ordinary legal meaning of the word.
78. After the decision of the Full Court, this Court delivered judgment in The Commonwealth v Yarmirr. It was determined in Yarmirr that the native title rights and interests with which the Native Title Act 1993 (Cth) (‘the Native Title Act’) is concerned may extend to rights and interests in respect of the sea, seabed and subsoil beyond the low water mark. The Native Title Act was enacted after the Act but does not purport to repeal it in any way. To the contrary, s 210 of the Native Title Act specifies that nothing in that statute ‘affects the rights or interests of any person under ... the Aboriginal Land Rights (Northern Territory) Act 1976’.
79. It is accepted, for the purposes of this appeal, that the issues respecting the construction of that statute arise independently of the issues of construction of the Native Title Act determined by Yarmirr. However, the operation of the Native Title Act in respect of the sea, seabed and subsoil beyond the low water mark answers the contention by the appellant that, unless ‘land’ for the purposes of the Act has the meaning he supports, there will be a gap in federal legislative provision for the Northern Territory respecting the traditional rights and interests of Aborigines.
80. The decision of the Full Court upholding the determination by the Commissioner gave to s 50 of the Act a correct construction. It follows that the appeal should be dismissed.
81. In Dampier Mining Co Ltd v Federal Commissioner of Taxation, in the course of construing provisions of the Income Tax Assessment Act 1936 (Cth) (‘the Tax Act’), Mason and Wilson JJ said that it was ‘somewhat artificial’ to speak of the seabed as being ‘land’. However, they went on to refer to the judgment of Mason J in an earlier case construing the Tax Act, Goldsworthy Mining Ltd v Federal Commissioner of Taxation. There, his Honour had referred to the long history of leases for mining purposes of strata of land underlying the sea, but also had observed that there may be some question as to whether the seabed answers the description of ‘land’ in every sense in which that word is used.
82. The definition of ‘land’ in s 22(1) of the Interpretation Act is of no particular assistance. It derives from the definition in s 3 of the Interpretation Act 1889 (UK) and states that in any Act of the Parliament, unless the contrary intention appears: Land shall include messuages tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein. There is, as Jacobs J put it, brought within a definition in the terms of that in s 22(1) ‘every interest which in law is, or savours of, realty’ so that ‘[p]robably the easement, and certainly the profit a prendre and the rent charge, are ‘land’ within the definition’. But the present case concerns not particular interests in realty (if a grant may be made in respect of the seabed, the Act directs that it be of a fee simple) so much as the geographical situation of ‘land’ as a portion of the surface of the earth. The distinction between land and real interests was drawn, in the context of the law of vendor and purchaser, by Barwick CJ in Travinto Nominees Pty Ltd v Vlattas.
83. The question of construction upon which this appeal turns is to be resolved, as always, by regard to the text of the statute as a whole, and the subject, scope and purpose of the statute and against the legislative history and antecedent circumstances, including the recommendations made in the Report.
84. The Report was presented in April 1974. It contained no recommendations that the land rights which it proposed should extend to the seabed. That is a significant circumstance for any consideration of the subsequent legislative history ...
...
87. The Act makes no reference to the seabed nor to grants of rights associated with waters, save for what might be protected by Northern Territory laws made pursuant to s 73. The legislative compromise reflected in s 73 was to confer certain powers upon the Legislative Assembly for the Northern Territory to make ordinances under what was then s 4U of the Northern Territory (Administration) Act 1910 (Cth). Section 73 was later amended by substituting a reference to the power of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 (Cth). Section 73(1) provides that the power of that legislature extends to the making, among other things, of:
(d) laws regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition).
88. However, this conferral of power is qualified by the concluding provision in s 73(1):
but any such law has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular, with this Act, the National Parks and Wildlife Conservation Act 1975 and any regulations made, schemes or programs formulated or things done, under this Act, or under that Act ...
...
90. Section 14(1) creates an offence for persons who enter onto or remain on ‘closed seas’ without the issue of a permit to do so in accordance with Pt III. This specific provision respecting ‘closed seas’ may be contrasted with the federal offence created by s 70 of the Act. This is directed to persons who ‘enter or remain on Aboriginal land’ other than in the performance of functions under the Act or otherwise in accordance with the Act or a law of the Northern Territory (s 70(1)). The term ‘Aboriginal land’ is defined in s 3(1) of the Act as meaning:
(a) land held by a Land Trust for an estate in fee simple; or
(b) land the subject of a deed of grant held in escrow by a Land Council.
91. Had it been proposed to authorise the grants of a fee simple in the seabed in areas such as those covered by the present claim, then it would be expected that a central provision of the legislative scheme such as s 70 would contain detailed provisions for exemption and defences to balance the competing interests involved. The succeeding sub-sections to s 70(1) do contain detailed qualifications to the interdiction of s 70(1), but in terms which presuppose that the ‘Aboriginal land’ concerned will not be located beneath the sea.
92. The scheme of the Act is that legislation enacted pursuant to s 73(1)(d) would provide the regime for the entry of persons into and the control of fishing and other activities in waters of the sea adjoining and within two kilometres of Aboriginal land. The Act stopped short of making the further provision (such as that for a 12 mile zone supported by the Northern Land Council) canvassed but not recommended in the Report. It should be added that the Northern Land Council had not proposed a seaward reach of land grants with the scope of that advanced by the present appellant.
93. The appeal should be dismissed with costs.
94. It should be added that nothing decided by this litigation denies the efficacy of grants under the Act in respect of areas including rivers and estuaries. The determination by the Commissioner was not directed to such matters.
...
104. ... In order to determine the appeal it is necessary to analyse the relevant provisions of the Act [the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)] ...
...
114. It is sufficient to note in passing that s 70 of the Act which prohibits (subject to some limited exceptions) entry without authorisation upon Aboriginal lands, does not, as would be appropriate if land includes sea waters, make any provision for the passage across, moving or fishing in, or access for any other purposes to the sea ...
...
116. Section 74A deals with the funding of applications for closure of seas, which may be made under Northern Territory legislation. It says nothing about the meaning to be given to the word ‘land’ which is used in the Act in many places. By contrast, there is only one reference in the Act to the sea and that appears in sub-s 73(1)(d)
117. That sub-section provides, in my opinion, a strong indication that ‘land’ as used in the Act does not embrace the sea. Indeed, it indicates, first, that sea waters require and are given separate statutory treatment from land; secondly, that waters of the sea (and presumably the bed under them) adjoin, are separate from, and are not therefore part of, ‘Aboriginal land’; and, thirdly, that special provision for the pursuit of Aboriginal activities in seawaters, which would otherwise not be necessary if they were claimable lands, was necessary.
118. It may be accepted that in some contexts land may embrace the seabed ...
...
123. But, that in different situations, and under different legislation enacted for different purposes, the seabed and what is above or below it may, or should be regarded as ‘land’ cannot be determinative of its meaning in this Act. That meaning has to be ascertained by reference to the language and discernible purpose of this Act, read as a whole. And there are, as will appear further indications yet of a statutory intention to exclude sea waters and the seabed in other sections of the Act.
124. Section 50(3)(c) requires the Commissioner, in making a report, to comment on the effect that acceding to a claim would have on the existing, or proposed ‘patterns of land usage in the region’ a phrase neither immediately nor readily applicable to the fishing and navigation of sea waters. Nor is it without significance that the Commissioner is not obliged to comment on, if not patterns of the usage of the seas, at least the means and frequency of resort to, and exploitation of them.
125. Section 50(4) refers to places where Aboriginals are living ‘on’ traditional country and to the aim ‘[of] acquir[ing] secure occupancy’, again expressions more naturally appropriate to land, than to the seabed or the sea.
126. The respondents also point to the use of the word ‘forage’ in sub-s 3(1) of the Act, the establishment of the right to which is one of the conditions for the obtaining of a grant. The notion of ‘foraging’ on the seabed permanently covered by water, irrespective of its depth, or in the sea itself is an unlikely one. The word ‘foraging’ may in some circumstances have a contemporary meaning extending to the act of searching for provisions of any kind, or of wandering in search of supplies, or of hunting or searching about on sea or on land, but it certainly does not have a primary meaning of fishing or exploiting the seas or seabeds. A description of fishing as foraging has the appearance of a metaphor rather than of an accurate statement of fact. The primary and preferable meaning that the word conveys is of activities on land.
127. It is also important to bear in mind that the Act was enacted against the background of existing public rights, including of fishing and navigation, being public rights which qualify the Crown’s rights in respect of the seabed and the space above it. Necessarily, a right of fishing may involve not only the fishing of the seas, but also the use of the seabed, by standing on it, or anchoring in it to fish, placing nets in, below and on it, and the taking of some forms of sedentary aquatic life (not so attached to be considered a permanent part of the solum) from it.
128. The structure and text of the Act in the respects to which I have referred, and the legislative history of the Act, in particular the decision by the legislature not to adopt the substance of the recommendations of Woodward J with respect to an area delineated by the two kilometre mark and Aboriginal use and occupation thereof, point inexorably in my opinion, to the conclusion that the Act does not authorize the claiming and granting of title to seawaters or the seabed beneath them. Land, in the Northern Territory, as referred to in the Act does not extend to the beds of the bays and gulfs of the Territory. The appeal should therefore be dismissed with costs ... ?
Counsel for the Appellant:
J Basten QC
Solicitor for the Appellant:
S A Glacken
Counsel for the First Respondent:
T I Pauling QC, Solicitor General for the Northern Territory with R J Webb
Solicitor for the First Respondent:
The Solicitor for the Northern Territory
No Appearance for the Second Respondent
Counsel for the Northern Territory Seafood Council
H Fraser QC with N J Henwood
Solicitor for the Northern Territory Seafood Council
Cridlands
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2002/30.html