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Levy, Ron --- "Who Can Fish in Tidal Waters on Aboriginal Land?" [2001] IndigLawB 22; (2001) 5(7) Indigenous Law Bulletin 17

Who Can Fish in Tidal Waters on Aboriginal Land?

Director of Fisheries (Northern Territory) & anor v Arnhem Land Aboriginal Land Trust & anor
Full Court of the Federal Court of Australia
[2001] FCA 98
Spender, Sackville, and Merkel JJ
Appeal from the decision of Mansfield J in the Federal Court
23 February 2001

By Ron Levy

In 1980, pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the Land Rights Act’), a freehold title to the Arnhem Land Reserve (‘the Reserve’ - proclaimed an Aboriginal reserve since 1931) was granted to the Arnhem Land Aboriginal Land Trust (‘the Land Trust’) for the benefit of traditional Aboriginal owners and other Aboriginals interested in the land. Both the Reserve and the subsequent freehold title (known as Aboriginal land) extended to the low water mark of the seacoast, and included land located in the beds of rivers, streams and estuaries (including land below the low water mark such as near the mouths of these waterways, as fixed by a line across the seaward extremity of their banks).

The Land Trust claimed (inter alia) that because of inconsistency between the grant and the Land Rights Act on one hand, and the common law public right to fish for commercial purposes on the other, the common law right had been abrogated regarding tidal waters located above Aboriginal land. Tidal waters are waters between low and high water marks or in tidal rivers. The Land Trust argued that the Northern Territory had no power to issue commercial fishing licences regarding tidal waters. One issue in the proceeding was whether persons who fished in such tidal waters under commercial licences issued pursuant to the Fisheries Act (NT) exercise that common law right or whether they exercise rights entirely dependent on that Act which had replaced the common law right.

The case proceeded on the basis of agreed facts and questions including that the ordinary use of the land by Aboriginal people included passing over and through the land and overlying waters, and taking fish and other aquatic life from the land and waters. It was also agreed that licences had been issued by the Director of Fisheries for the taking of fish and aquatic life from tidal waters overlying Aboriginal land.

Trial

Justice Mansfield, at first instance,[1] held that the public right to fish had been abrogated by the grant of Aboriginal land in relation to tidal waters located in rivers, streams and estuaries on the landward side of the mean high water mark drawn across their mouths. Accordingly commercial licence holders were not entitled to enter or take fish from such tidal waters without the permission of the Land Trust. In relation to tidal waters located between low and high water marks along the Arnhem Land seacoast Justice Mansfield held that the public right to fish had not been abrogated, the consequence being that commercial licence holders did not require the permission of the Land Trust to enter or take fish from those tidal waters. In reaching this conclusion Justice Mansfield took account of s 73(1)(d) of the Land Rights Act which empowers the Northern Territory to enact laws which regulate or prohibit fishing or entry to seas within two kilometres of Aboriginal land. Both the Director of Fisheries and the Land Trust appealed Justice Mansfield’s decision.

Appeal

The Full Court considered the agreed facts were not sufficiently detailed to provide a basis for the questions to be answered with an unqualified ‘yes’ or ‘no’, and hence they were inappropriate to answer. The Full Court also considered whether it was possible to answer an alternative amended question submitted by the parties during the appeal, but declined to do so for the same reason. Justice Spender went further holding that the Full Court could not amend the questions on appeal. Justice Sackville, with whom Justices Spender and Merkel agreed on this point, considered the course adopted by the parties and Justice Mansfield to be ‘fraught with difficulty’.[2] The Court considered that the questions were ‘unlikely to settle the dispute between the parties’[3] as the answers were ‘likely to depend on factual issues not explored in these proceedings’.[4]

The case was returned to Justice Mansfield for further consideration.

Ron Levy is the Principal Legal Officer of the Northern Land Council.


[1] Arhemland Aboriginal Land Trust v Director of Fisheries (Northern Territory) [2000] FCA 165; 170 ALR 1.

[2] Director of Fisheries (Northern Territory) v Arhemland Aboriginal Land Trust [2001] FCA 98, Para 163.

[3] Ibid para 134.

[4] Ibid para 138.


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