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Brady, Maggie --- "Sea Rights -- The Northern Territory 'Sea Closure': A Weakened Law" [1985] AboriginalLawB 52; (1985) 1(15) Aboriginal Law Bulletin 8


Sea Rights –

The Northern Territory ‘Sea Closure’: A Weakened Law

by Maggie Brady

It is possible forAboriginal people in the Northern Territory who live on Aboriginal owned land adjoining the sea to have some control over the entry of strangers onto that sea.

This right of control of access to the sea came about undera piece of N.T.legislation passed in 1980. the Aboriginal Land Act, 1980. The Aboriginal Land Act was itself 'complementary' legislation provided by the Federal Government's Aboriginal Land Rights (N.T.) Act. The procedure has become known as the 'sea closure' because it enables the Administrator to 'close' the seas within two kilometres of the shores of Aboriginal land, to those people who are not entitled by Aboriginal tradition to enter or use the seas. The legislation means that visitors who may travel by sea, such as tourists or amateur fishermen, must ask permission of the local Aboriginal spokespeople before they may enterwaters within two kilometres of the land. In fact, the seas are not really closed at all, but the entry to them is merely restricted in some cases - and there are many exceptions allowed for in the Act.

It is unfortunate that the term 'sea closure' has become so common, for it gives a grander interpretation of the Act's powers than in fact exist. Indeed, it probably serves to arouse unnecessary antagonism among those (non-Aboriginals) who feel that they will be restricted in their use of seas.

In order to understand why the legislation is not as strong as it sounds, we must look at the circumstances under which it came into being. Mr Justice Woodward's Aboriginal Land (N.T.) Bill of 1975 (the precurserto the Aboriginal Land Rights (N.T.) Act. 1976) originally included the provision of Aboriginal 'sea rights.' Woodward accepted, quite correctly, that the coastal Aborigines perceive there is no real difference between the land and the off-shore sea. Woodward recommended that where Aboriginal land adjoins the seas or internal waters of Australia, that 'that part of the sea... shall ... be deemed to be part of that Aboriginal land'. [section 74(l), Aboriginal Land (N.T.I Bill 1975]. In other words, had Mr Justice Woodward's Bill been passed in its original form into Law, coastal Aboriginals would automatically have had the right under Australian law to decide who could or could not have access to their seas, just as they have the right for Aboriginal land. However. along with the crucial 'needs claim' provision. the sea rights clause was deleted from the final version of the Land Rights (NT) Act. The 'sea closure' item was relegated to the uncertainties and local politics of Northern Territory legislation. The Federal Government s Preferred National Land Rights Model (Feb. 1985), does not specify any changes to the present Aboriginal Land Act clause on the 2 kilometre sea closure.

The greatest weakness in the Aboriginal Land Act and the issue which separates it firmly from the strength of the existing Land Rights Act is the role of the Land Commissioner, the fudge who hears the claims. When the Land Commissioner hears a land claim by Aboriginal people, s/he has considerable powers in that s/he makes a recommendation that the claim be granted or not. In the case of a sea closure, this power is denied, and s/he may only 'report on the matter to the Administrator of the N.T., who may accept or reject the Land Commissioner's report.

The potential disadvantage of this was noted by Mr Justice Toohey in his Government-commissioned review of the Land Rights Act, Seven Years On (Toohey, 1983). In this review, he recommended that the functions of the Land Commissioner when hearing sea closures, should be ‘allied to those under the Land Rights Act. In particular the commissioner should be empowered to make recommendations for closure of seas’ [my emphasis] (Toohey, 1983:11 I). The status of Toohey J.'s recommendations is now less certain than ever, with the recent furore over the Government's Preferred Model.

When a community decides to apply for a sea closure, the application is made to the Adminstrator who may refer it to the Aboriginal Land Commissioner. The relevant Land Council then sends out anthropologists who work alongside the Aboriginal people in orderto collect information which will support their case. The researchers will usually spend several weeks living in and visiting the areas to be included in the closure. Local Aboriginal people will take them to see places of importance at sea, on islands and shorelines, often by boat. It is not necessary for anthropologists to document in detail information about sacred places and dreamingtracks as would be done in a land claim, but it is still important that the Land Commissioner be convinced that the seas and coasts contain significant places about which local Aboriginal people are concerned. The researchers must document the rules in Aboriginal tradition pertaining to the entry of strangers - whether such people needed to ask permission, and whether strangers could go anywhere or only to certain places through the seas. In the sea closure hearings for Milingimbi and other islands off the northern coast of Arnhem Land, the researchers and the Aboriginal people gave evidence that visitors did indeed ask permission before entering certain places. This was to protect visitors from danger, as well as to keep sacred places safe (Toohey, 1981).

Aboriginal Land Act (N.T.)
Commencement date: 1 February 1979
CLOSURE OF SEAS

Being a list of all applications to close seas, referred by the Administrator for an inquiry and report under s.12(3) of the Act between 1 February 1979 and 14 June 1985.
Number / Land Council etc
Report number
Application to close seas in the vicinty of:
Position as at 14 June 1985
1
Tiwi Land Council (TLC)
-
Bathurst and Melville Islands
Application to Administrator dated 15 November 1979.
Referral from Administrator undated. Preliminary inquiry 18 February 1980 to determine procedures to be followed; Practice Directions and Reasons issued 21 February 1980. Anthropologist's report nearing completion; applicants may be ready to proceed in 1985.
2
Northern Land Council (NLC)
1
Milingimbi, Crocodile Islands and Clyde River
Application dated 30 November 1979. Inquiry concluded; report submitted to Administrator; seas closed 20 July 1983.
3
Northern Australian Aboriginal Legal Aid Service (NAALAS)
-
Howard Island / Castlereagh Bay
Application to Administrator. December 1981. Referral from Administrator 22 March 1982. Inquiry concluded; report being prepared.
4
NLC
-
Croker Island
Application to Administrator, 27 May 1983. Referral from Administrator, 8 June 1983. Anthropologist's report being prepared.
5
NLC
-
North Groote Eylandt
Application to Administrator dated 7 December 1983. Referral from Administrator 30 January 1984. Practice Directions issued 3 February 1984. Anthropologist's report lodged May 1984. To be heard with Winchelsea Bartalumba Bay (No. 6).
6
NLC
-
Groote Eylandt, Winchelsea, Bartalumba Bay
Application to Administrator dated 30 November 1984. Referral from Administrator dated 30 January 1985. Inquiry date to be fixed. To be heard in conjunction with North Groote Eylandt (No. 5).
Source: Document prepared by the Aboriginal Land Commissioner’s Office.

Many coastal communities have strict rules about not throwing greasy food or tins overboard, or letting blood run into the sea. Local Aboriginal people are often anxious that those who are unaware of these rules (usually Europeans), will break them, and bring about disasters such as cyclones or shipwrecks. Unknowing or thoughtless behaviour at sea or on shore which may desecrate a site, is believed to cause sickness and death, not just to the local community, but through linked dreaming tracks to other coastal communities. It is in order to protect and respect these beliefs that the sea closure legislation is sorely needed.

Local Aborigines may also demonstrate their utilisation of the resources of the sea, coasts and islands. The judge is required to know how Aborigines fish using wire spears or nets, hunt turtles or dugong, and how women collect shellfish such as oysters and mussels. The fudge must be told if strangers or tourists are, by their presence or actions, preventing local Aboriginal people from doing these things. Fishing and hunting for shellfish are often important sources of food for coastal people. In coastal areas of the N.T. Aborigines can provide evidence of fishing boats causing rubbish on beaches, theirengines disturbing peaceful outstations. orof visitors who sometimes land on islands which contain sacred places. All such data is contained in the anthropological report written to support the Aboriginal community's application.

The Land Commissioner visits the area at the time of the hearing, and Aboriginal spokespeople may show the judge sites in the sea (sacred reefs or rocks), on islands or coasts, and explain i n their own way why they want to have the sea closure. The judge will then write a report, but as pointed out earlier, this does not have the power to influence the final decision.

The sea closure legislation protects the interests of licensed fishers, so that even if a sea closure is granted, Aboriginal people still have no power over licensed commercial enterprises such as prawn trawlers or barramundi catchers. Ironically, it is usually the actions of fishers which are most frequently the cause of complaint by Aborigines. Under the Act, these fishers are supposed to tell the Land Council when they plan to go into an area of 'closed' seas. However, it is very difficult to police the areas included in a sea closure. Aboriginal people have asked in some cases for outlying islands to be included, so that each island i ssurrounded by an area of 2km of ‘closed sea’. It is extremey difficult to ensure that no intruders enter these seas or land on islands without permission, for many islands are out of sight of the mainland and have no permanent population residing on them. Coastal Aborigines often visit thier islands in order to care for sites, ‘check up’ on them, and to collect foods such as turtle eggs from isolated beaches.

It is on these occasions that evidence of intrusion is often discovered, beer cans left littering the beach, or rubbish dumped from boats. In the absence of any other legislation, coastal Aborigines are now requesting the closure of the seas under the Aboriginal Land Act with more frequency.

Despite its disadvantages – the difficulty of policing the closure; the automatic protection of licensed fishers and the powerlessness of the Land Commissioner to recommend their findings to the Government – despite all these, the ‘two kilometer law’ for Aboriginal seas provides local people with some limited protection from unwanted visitors. In addition it recognises, however belatedly, that Aboriginal people make no boundary between land and sea, for both land and sea and even reefs under the sea, bear the traces of the dreamings.

References

Toohey, Mr Justice (1981), Closure of Seas: Milingimbi, Crocodile Islands and Clyde River area. Report by the Aboriginal Land Commissioner, Mr Justice Toohey, to the Administrator of the Northern Territory. Nt Govt Printer

Toohey, Mr Justice (1983), Seven Year On, Canberra AGPS

Thanks to Mick Dodson for his comments on an earlier draft.

A modified form of this article will appear in the Federation of Land Councils’ newsletter.


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