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Federal Court of Australia |
Last Updated: 8 December 2000
Risk v Northern Territory of Australia [2000] FCA 1779
ABORIGINAL AND TORRES STRAIT ISLANDERS - land rights - traditional land claim under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) - claim covering seabed under bays and gulfs within the limits of the Northern Territory - whether seabed amenable to claim - whether the term "land" in s 50 of the Land Rights Act extends to the seabed - ordinary and ordinary legal meaning of "land" - whether includes seabed - operation of Acts Interpretation Act.
Aboriginal Land Rights (Northern Territory) Act 1976 s 50, s 73
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Judiciary Act 1903 (Cth) s 39B
Acts Interpretation Act 1901 (Cth) s 22(1)(c)
The Seas and Submerged Lands Act 1973 (Cth) s 7
Northern Territory Aboriginal Sacred Sites Act 1989 (NT)
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 cited
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 cited
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 referred to
Hampton Urban Council v Southwark & Vauxhall Water Company [1900] AC 3 cited
Goldsworthy Mining Ltd v Commissioner of Taxation [1973] HCA 7; (1973) 128 CLR 199 discussed, cited
Goldsworthy Mining Ltd v Commissioner of Taxation [1975] HCA 3; (1975) 132 CLR 463 referred to
Dampier Mining Co Ltd v Commissioner of Taxation [1981] HCA 29; (1981) 147 CLR 408 discussed
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 2] [1987] HCA 10; (1987) 162 CLR 153 followed
New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337 cited
Rogers v Squire (1978) 23 ALR 111 referred to
Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 referred to
Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 referred to
R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 cited
R v Toohey; Ex parte Attorney-General for the Northern Territory [1980] HCA 2; (1980) 145 CLR 374 cited
R v Kearney; Ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365 cited
Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 cited
Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 cited
Attorney-General of British Colombia v Attorney-General of Canada [1914] AC 153 cited
Lansen v Olney [1999] FCA 1745; (1999) 169 ALR 49 cited
Argyll & Bute DC v Secretary of State for Scotland (1976) SC 248 cited
Re Rivtow Industries v Assessment Commissioner of British Columbia (1986) 24 DLR (4th) 475 cited
WILLIAM MAXWELL RISK V NORTHERN TERRITORY OF AUSTRALIA & THE HON JUSTICE HW OLNEY ACTING AS ABORIGINAL LAND COMMISSIONER
D19 OF 1999
FRENCH, KIEFEL AND MERKEL JJ
8 DECEMBER 2000
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA |
|
NORTHERN TERRITORY DISTRICT REGISTRY |
1. The application be dismissed.
2. The Applicant is to pay the Respondents' costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NORTHERN TERRITORY DISTRICT REGISTRY |
BETWEEN: |
WILLIAM MAXWELL RISK APPLICANT |
AND: |
THE NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT THE HON JUSTICE HW OLNEY acting as ABORIGINAL LAND COMMISSIONER SECOND RESPONDENT |
JUDGES: |
FRENCH, KIEFEL AND MERKEL JJ |
DATE: |
8 DECEMBER 2000 |
PLACE: |
BRISBANE |
French and Kiefel JJ:
Introduction
1 On 19 November 1999, the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 rejected an application raising a traditional land claim extending to the seabed covered by the waters of Beagle Gulf and other waters within the limits of the Northern Territory. He did so on the basis that the seabed is not "land" which can be claimed under the Act. The sole question in this appeal is whether he was correct in so concluding.
Factual Background
2 By an application dated 27 May 1997 lodged with the Aboriginal Land Commissioner under s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976, William Maxwell Risk and nine other persons asserted a traditional land claim in an area covered by the waters of the Beagle Gulf. Beagle Gulf lies between the coast adjacent to the city of Darwin and Bathurst and Melville Islands in the Northern Territory.
3 Following various amendments to the claim made in July 1998 and August 1999 it covered Beagle Gulf, a portion of Fog Bay and a portion of Van Diemen Gulf. The limits of the area were defined by closing lines for the bay and the gulfs which were described with particularity. They were described by reference, inter alia, to the high water mark of the mainland and territorial sea base lines proclaimed under s 7 of The Seas and Submerged Lands Act 1973 (Cth). Certain islands, sandbars, islets, reefs, rocky areas and other formations within the gulfs and bay were also specified.
4 On 3 July 1998 the Aboriginal Lands Commissioner, at the request of the Attorney-General for the Northern Territory of Australia, issued a Notice of Intention to commence an inquiry to determine a preliminary issue. The issue, broadly expressed, was whether the claimed area or any part thereof is land which may properly be the subject of an application pursuant to s 50(1)(a). The questions raised before the Commissioner at the preliminary inquiry, by the Attorney-General, related to the certainty and consistency of the description of the claimed area, whether the "sandbars, islets, reefs, rocky areas and formations" referred to in the claim were properly to be regarded as land and the identification of the bays and gulfs covered and the definition of the relevant closing lines. The major question however, was whether the bed of any bays or gulfs of the mainland and of adjacent islands fell within the description "land in the Northern Territory" for the purposes of the Land Rights Act.
5 It was on that major question that the Commissioner made a determination on 30 November 1999 in the following terms:
"The Aboriginal Land Commissioner determines that so much of the area claimed in the Beagle Gulf Area Land Claim, (Application No 191) as is 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 Aboriginal Land Rights (Northern Territory) Act 1976."
On 24 December 1999 an application was filed in this Court for an Order of Review of the determination under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and for orders under s 39B of the Judiciary Act 1903 (Cth). The Aboriginal Land Commissioner being a judge of this Court, the application must be dealt with by a Full Court albeit in the exercise of original jurisdiction.
The Decision of the Land Commissioner
6 By the time the preliminary inquiry commenced, the amended description of the claim area was as follows:
"All that land in the Northern Territory of Australia which is adjacent to, and seawards of the low water mark of the seacoast of the mainland from, in the west, the northern-most point of the western boundary of Delissaville/Wagait/Larrakia Aboriginal Land (marked on the map by the letter `X'), and from, in the east, the point where the western bank of the Adelaide River meets the aforesaid low water mark (marked on the map by the letter `Y');including, without limitation:
(A) any islands, or part of any island, to low water mark, in the region described above, including any rights, members or appurtenances of such an island, or part thereof;
(B) the bed of any bays or gulfs of the mainland or of an aforesaid island (or part thereof), or part of any such bay or gulf, in the region described above; and
(C) all those sandbars, islands, islets, reefs, rocky areas and other formations enumerated on the map attached to this application;
but excluding:
(D) land which is Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976.
(DA) land, which at the time of lodgement of Beagle Gulf Area land claim, was the subject of claim pursuant to any of the following land claims under the Aboriginal Land Rights (Northern Territory) Act 1976:
* Kenbi Mainland land claim (no 37):
* Kenbi Islands land claim (no 127):
* Port Patterson land claim (no 153):
* Vernon Islands land claim (no 9).
(E) land located within a town within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976;
(F) Northern Territory Portions 3578, 3580, 3581 and 3582."
The description also referred to a map and a part of the Port Hurd area which had been withdrawn from the claim. As particularised, the claim excluded:-
(i) land which is the seabed of the high seas;
(ii) land which is the seabed of the twelve nautical mile territorial sea of Australia;
(iii) land which is the seabed of the first three nautical miles of the territorial sea of Australia adjacent to the base lines under the Seas and Submerged Lands Act 1973 (Cth);
(iv) land which is the seabed landward of the aforementioned base lines, but not within the Northern Territory.
There were other exclusions which are not material for present purposes.
7 The Commissioner decided that he would leave to one side questions relating to the precision of the description of the area and whether particulars provided by the claimants purported impermissibly to expand the claim area. He proceeded to consider what he called the specific question identified in the Notice, namely the extent to which the claimed area answers the description of land in the Northern Territory.
8 The islands, sandbars, islets, reefs, rocky areas and other formations mentioned in the application, if within the region described and properly to be regarded as land in the Northern Territory, could be the subject of an application pursuant to s 50(1)(a). The question whether they were within the particular region and whether or not they constituted land were matters which could only be resolved by evidence as to the location and other characteristics of the areas in question and by application of appropriate legal principles. The land description however, raised a different issue altogether in that the area to which it referred was identified as "the bed of any bays and gulfs of the mainland...in the region described above". The Commissioner put it thus:
"The question is quite simple, namely, is the bed of a bay or gulf which is in the Northern Territory, land in the Northern Territory for the purposes of the Land Rights Act." (par 11)
9 The Commissioner referred to Letters Patent of 1863 whereby the Province of South Australia was carved out of the colony of New South Wales. It became the State of South Australia at the time of Federation. When South Australia agreed to surrender the Northern Territory to the Commonwealth in 1907 and the Commonwealth accepted that surrender in 1910, the Territory so surrendered and accepted was described in the same terms as those used in the Letters Patent of 1863. He concluded that the Northern Territory included the land mass located north of the twenty sixth parallel of South latitude between the 129 and 138 meridians of East longitude, together with all bays and gulfs therein and all islands adjacent to any part of the mainland within those limits. The question whether the beds of the bays and gulfs were land in the Northern Territory for the purpose of the Land Rights Act involved an exercise in statutory construction.
10 The Commissioner considered the terms of the Land Rights Act noting that it contained no separate definition of the word "land". The dictionary was of little assistance and the general definitions under the Acts Interpretation Act 1901 (Cth) did not deal with the question of the seabed. Other Northern Territory statutes dealing with land and Crown lands as including the seabed would not necessarily lead to the inference that the ordinary meaning of the word "land" excluded it.
11 He referred to the two reports of the Woodward Royal Commission which had preceded the enactment of the Land Rights Act and had expressly considered the views of Aboriginal clans which regarded estuaries, bays and waters immediately adjacent to the shore line as being part of their land. The Final Report had recommended that the definition of Aboriginal land where a coastline is involved, should include both offshore islands and waters within two kilometres of the low tide line. The Commissioner cited the Second Reading Speech for the Aboriginal Land Rights (Northern Territory) Bill 1975 which did not indicate any proposal that there be a grant of title to the sea or seabed. That Bill did not become law but the Aboriginal Land Rights (Northern Territory) Bill 1976, which was introduced following the election of the Fraser Government, contained neither the proposal in the final Woodward Report nor that contemplated in the 1975 Bill. It did however confer power on the Legislative Assembly of the Northern Territory to make laws providing for sea closures in areas of water within two kilometres of Aboriginal land. Particular areas of land are set out in Schedule 1 to the Act and an obligation imposed on the relevant Minister to recommend to the Governor-General that a grant of an estate in fee simple in those specified areas be made to the relevant Land Trust established under s 4 of the Act. These areas of land are described by reference to their boundaries which for coastal areas were variously described as being "the sea coast" or "the low water mark of the sea coast".
12 The Commissioner also referred to specific exclusions from coastal boundaries mentioned in the Schedule which nevertheless allowed those parts of rivers, streams and estuaries inland from a straight line joining the sea with extremity of their opposite banks to be treated as part of the land described. This was notwithstanding that at low tide these areas would be below the low water mark and thus covered by water. The non-inclusion of any area below the low water mark, apart from those specifically mentioned, coupled with the sea closure provisions, suggested that Parliament did not contemplate that as a general rule Aboriginal title would extend seawards of the low water mark.
13 The Commissioner concluded at par 26:
"Having regard to the context in which the Land Rights Act was developed (including the comments and recommendations in the Woodward Reports) the specific provisions of the Act, (particularly those of the land descriptions in Schedule 1) and the absence of any defining provision that would extend the meaning of "land" to include the bed of bays and gulfs which are part of the Northern Territory, I am of the view that for the purposes of the Land Rights Act the words "land in the Northern Territory" mean the solid part of the earth's surface which is above the line of the low water mark. In reaching this conclusion I have not overlooked the fact that the Land Rights Act is clearly beneficial legislation which in the case of doubt should be construed in a manner favourable to those for whose benefit it is passed. In this case there is no basis to doubt what Parliament intended. Accordingly, I am of the opinion that the bed of any bays or gulfs of the mainland of the Northern Territory and of any islands adjacent to any part of the mainland, is not within the ambit of the definition of "Crown land" in s 3(1) of the Land Rights Act and cannot be the subject of an application made under s 50(1)(a) of that Act. It follows that the Aboriginal Land Commissioner has no function to perform in relation to a claim to the bed of any such bays or gulfs."
The determination under review followed.
Grounds of Review
14 The grounds of the application for review of the determination are as follows:
(1) The Commissioner erred in law in determining that the land within the Northern Territory of Australia but below the low water mark on the coastline was not land which may properly be the subject of an application pursuant to s 50(1)(a) of the Land Rights Act.
(2) The Commissioner erred in failing to hold that he, as Aboriginal Land Commissioner, had functions to exercise pursuant to s 50(1)(a) of the Land Rights Act in relation to any area of land:
(a) which was the subject of an application under s 50 of the Act;
(b) which related to land in the Northern Territory that had not been alienated from the Crown by a grant of fee simple in the land, within the terms of s 3 of the Land Rights Act, and
(c) was "unalienated Crown land", being Crown land in which no person (other than the Crown) had an estate or interest and was not land in a town.
(3) The Commissioner erred in law in importing into the definition of "Crown land" a restriction not to be found in the Land Rights Act, namely, that it be land above the low water mark on the seacoast of the Northern Territory.
15 The relief claimed is an order setting aside the determination of the Commissioner and a declaration in the following terms:
"...that so much of the area claimed in the Beagle Gulf area land claim (Application No 191) as is adjacent to, and seaward of, the low water mark of the sea coast 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, that is within the boundaries of the Northern Territory of Australia may properly be the subject of an application pursuant to section 50(1)(a) of the Land Rights Act."
An order is also sought that the Commissioner exercise his functions in relation to such land in accordance with law and that the Northern Territory pay the claimant's costs of the application.
Background to the Land Rights Act - The Woodward Royal Commission
16 The exercise which the Court must undertake involves the construction of the term "Crown Land" in the Land Rights Act. Before turning to the provisions of the Act it is helpful to have regard to some elements of its history. This may assist in better understanding its purposes. It is by reference to language, context and purpose that a statute is to be construed - Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 312 (Gibbs CJ) and 315 (Mason J).
17 In 1971, Blackburn J sitting in the Supreme Court of the Northern Territory, rejected a claim by Aboriginal people of the Gove Peninsular seeking common law recognition of their traditional native title and the invalidation of certain leases granted to Nabalco Pty Ltd - Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. In February 1973 the Commonwealth Government established a Royal Commission under Woodward J who had appeared as Senior Counsel for the plaintiffs in the Gove case to inquire into and report on statutory recognition of Aboriginal land rights in the Northern Territory. The Letters Patent which conferred the commission, required Woodward J to inquire into and report on, inter alia:
"...appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to land, and to satisfy in other ways the reasonable aspirations of the Aborigines to rights in or in relation to land...".
Nothing in the terms of reference as further particularised in the Letters Patent made any explicit reference to seabed claims.
18 In his First Report, dated 19 July 1973, Woodward J noted that a number of Aboriginal communities had raised with him questions of fishing rights. They pointed to traditional dependence on fish, turtles, shellfish, dugong and other forms of sea life and asked whether their land rights would extend out to sea and if so, how far. He said:
"It seems clear that Aboriginal clans generally regard estuaries, bays and waters immediately adjacent to the shore line as being part of their land. So also are the waters between the coastline and offshore islands belonging to the same clan." (par 205)
Some of the communities which spoke to Woodward J were not concerned merely with traditional methods of food gathering but were looking ahead to the development of fishing ventures as a form of commercial activity. They feared that some of the best areas might be fished out before they could put such ideas into practice (par 206). The Royal Commissioner said at par 207:
"In the absence of any clear-cut claims on this subject I do no more than draw attention to it as a matter requiring careful consideration."
19 In his Final Report dated April 1974, Woodward J made detailed recommendations for land rights legislation applicable to the Northern Territory and annexed a Draft Bill. He set out what were in his view, the aims of the recognition of land rights for Aborigines:
"(i) the doing of simple justice to a people who have been deprived of their land without their consent and without compensation,(ii) the promotion of social harmony and stability within the wider Australian community by removing, so far as possible, the legitimate causes of complaint of an important minority group within that community,
(iii) the provision of land holdings as a first essential for people who are economically depressed and who have at present no real opportunity of achieving a normal Australian standard of living,
(iv) the preservation, where possible, of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart of his spiritual beliefs, and
(v) the maintenance and, perhaps, improvement of Australia's standing among the nations of the world by demonstrably fair treatment of an ethnic minority."
These aims would best be achieved by:
"(a) preserving and strengthening all Aboriginal interests in land and rights over land which exist today, particularly all those having spiritual importance,
(b) ensuring that none of these interests or rights are further whittled away without consent, except in those cases where the national interest positively demands it - and then only on terms of just compensation,
(c) the provision of some basic compensation in the form of land for those Aborigines who have been irrevocably deprived of the rights and interests which they would otherwise have inherited from their ancestors, and who have obtained no sufficient compensating benefits from white society, and
(d) the further provision of land, to the limit which the wider community can afford, in those places where it will do most good, particularly in economic terms, to the largest number of Aborigines."
20 In the Final Report, Woodward J referred, under the heading "Fisheries", to a submission by the Northern Land Council that an area stretching twelve miles out to sea should be treated as part of Aboriginal land for the purposes of protection of land rights. He said:
"I accept that Aborigines make traditional claims to most, and probably all, off-shore islands. Their legends link those islands with the mainland because of the passage of mythical beings from one to the other. The effect of this is that the sea between also has significance. Certainly Aborigines generally regard estuaries, bays and waters immediately adjacent to the shore line as being part of their land." (par 422)
He went on to say however that he was unable to endorse a claim to an area of sea as great as twelve miles from the coast (par 423). He considered that the legitimate interests of Aborigines would be protected if traditional fishing rights were preserved and their right to the privacy to the land clearly recognised by the establishment of a buffer zone of sea which could not legally be entered by commercial fisherman or holiday makers (par 423). To give effect to that opinion an arbitrary figure had to be arrived at which he suggested might be two kilometres from low tide (par 424). Since all fishing was done by netting or the use of hand lines in comparatively shallow water, that figure should suffice for the purposes to which he had referred (par 424).
21 In relation to land for which he specifically recommended transfer, being all land contained in Aboriginal reserves, Woodward J said at par 91:
"The proclamation should describe the reserves by their boundaries because in some cases there are doubts about the validity of past reservations or revocations. For reasons which are set out below (paras 422-5), it is recommended that the definition of Aboriginal land where a coastline is involved should include both off-shore islands and waters within two kilometres of the low tide line. I believe that a case could be made out for including also the waters of some of the wider estuaries and of certain enclosed bays, such as Buckingham, Arnhem and Blue Mud Bays. However the definition of enclosed waters for such purposes is a complex matter and I do not anticipate any problems arising in practice."
There was nothing in the Report which in terms contemplated or recommended that land rights should extend to the seabed. The Draft Bill which was appendix D to the First Report did not define "land", or "Crown Land". "Traditional Aboriginal Owners" was defined in the same terms as were ultimately adopted in the Land Rights Act. In particular the Draft Bill did not give effect to the recommendation in par 91 of the Report that the definition of land should include waters within two kilometres of the low tide line. However, s 12 of the Draft Bill proposed direct vesting of parcels of land referred to in Schedule 3 which in turn indicated that the parcels were "to contain descriptions, including where appropriate, offshore interests and waters within two kilometres of seaward of the low tide line..." of specified "reserves and other land areas" set out in the Schedule.
22 The first land rights legislation designed to give effect to the recommendations was introduced by the Labour Government into the Parliament in October 1975 as the Aboriginal (Native Title) Bill 1975. That Bill lapsed upon the dissolution of Parliament. The coalition government which came into power in November 1975 introduced a new Bill in 1976 which became the Land Rights Act. The 1975 Bill did not adopt Woodward J's recommendation for the inclusion of a two kilometre off-shore zone in the title of land referred to in Schedule 3 of the draft Bill. Rather it provided for adjacent waters, to two kilometres from the boundary of the Aboriginal land to be deemed to be part of that land for the purposes of s 70 which related to control of entry (s 74).
Statutory Framework - The Aboriginal (Land Rights) Act 1976 (Cth)
23 The long title of the Act is "An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes". The Office of Aboriginal Land Commissioner is established by s 49. The functions of the Commissioner are set out in s 50(1) which, in the relevant parts, is as follows:
"50(1) The functions of a Commissioner are:(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being un-alienated 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:
(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and
(ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12.
There is a sunset provision, subs 50(2A), which provides thus:
"(2A) A Commissioner shall not perform a function under paragraph (1)(a) in respect of an application made after the expiration of 10 years after the commencement of this subsection."
Subsection 50(3) requires the Commissioner, in making a report under s 50(2), to have regard to the strength or otherwise of the traditional attachment by the claimants to the land claim. The Commissioner is required to comment on each of the following matters:
"(a) the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part;
(b) the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part;
(c) the effect which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage in the region; and
(d) where the claim relates to alienated Crown land - the cost of acquiring the interests of persons (other than the Crown) in the land concerned."
24 The term "land" is not defined in the Act. However, the terms "Crown land", "alienated Crown land" and "unalienated Crown land" are all defined in s 3 as follows:
" "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."
""alienated Crown land" means Crown land in which a person (other than the Crown) has an estate or interest, but does not include land in a town;"
""unalienated Crown land" means Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town."
25 Reference should also be made to the definitions of "traditional Aboriginal owners", "traditional land claim", "Aboriginal tradition", and "Aboriginal land" in s3 which are as follows:
""traditional Aboriginal owners", in relation to land, means 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;"
""traditional land claim", in relation to land, means a claim by or on behalf of the traditional Aboriginal owners of the land arising out of their traditional ownership;"
""Aboriginal tradition" means the body of traditions, observances, customs and beliefs of Aboriginals or 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;"
""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;"
26 The Act provides for the Minister, upon the Commissioner's recommendation, to establish a land trust or trusts for the area the subject of recommendation and for the Governor-General to make a grant to the trust or trusts of that land (ss 11 and 12). In respect of traditional land claims the Act contemplates a process of application, inquiry, recommendation to the Minister, recommendation by the Minister to the Governor-General and grant. Certain areas were designated for grant by virtue of s 4 of the Act and were set out in Schedule 1. The phrases used to describe the boundaries of the areas in Schedule 1 relative to the sea, where they abut the sea, are as follows:
Alligator Rivers (No 2): |
"...thence by the said sea coast..." |
Arnhem Land (Islands): |
"...thence generally northwesterly by the low water mark of the seacoast of Mountnorris Bay...thence generally northeasterly and westerly along low water mark of the seacoast of the mainland of Australia..." |
Arnhem Land (Mainland): |
"...thence north to the low water mark of the seacoast of Mountnorris Bay; thence generally easterly and southwesterly by the low water mark of the seacoast of Mountnorris Bay...thence generally northerly by the said low water mark..." |
Bathurst Island: |
"...being the whole of Bathurst Island above a line along the low water mark and all other islands above a line along the low water mark lying within 5.56 kilometres of the low water mark of Bathurst Island;..." |
Daly River: |
"...thence generally northwesterly and northeasterly by the said low water mark..." |
Melville Island: |
"...being all those parts of Melville and Buchanan Islands and all other islands lying within 5.56 kilometres of low water mark of Melville island above a line along the low water mark surrounding the said islands;..." |
Wagait: |
"...to its intersection with the low water mark of the seacoast of the Timor Sea; thence generally northeasterly by the said low water mark..." |
27 Section 73 of the Act confers power on the Northern Territory Legislature to make laws for the creation of off-shore buffer or closure areas as follows:
"73(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;"
The Act makes no reference to the seabed nor to grants of rights associated with waters save what might be provided by laws made pursuant to s 73.
Statutory Framework - Other Relevant Provisions
28 Reliance was placed upon s 22(1)(c) of the Acts Interpretation Act 1901 (Cth) which provides that:
"In any Act, unless the contrary intention appears:.
.
.
(c) Land shall include messuages tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein;"
29 Other statutes were also mentioned for the purposes of contrast and comparison. At the time of the passage of the Land Rights Act the Crown Lands Ordinance 1931 included in s 5 a definition of Crown lands thus:
""Crown Lands" means all lands of the Crown or the Commonwealth in the Northern Territory other than reserved or dedicated lands;"
The words, to the "bed of the sea within the territorial limits of the Northern Territory" were inserted by the Crown Lands Ordinance (No 2) 1969. The purpose of the provision, as appears from the Second Reading Speech in the Legislative Council of the Northern Territory on 15 May 1969, was to enable the bed of the sea to be placed under the control and management of the Port Authority - L.C. Parl. Deb. 15.5.69 p 458. The Crown Lands Act 1992 (NT) enacted pursuant to the Northern Territory (Self Government) Act 1978 (Cth) supplanted the Crown Lands Ordinance and defined Crown lands in s 3 thus:
" "Crown lands" means all lands of the Territory, including the bed of the sea within the territorial limits of the Northern Territory, and including an estate in fee simple that is registered in the name of the Territory, but does not include reserved or dedicated lands."
In the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) land is defined as:-
" "land" includes land covered by water (including such land in the Territorial sea) and the water covering land;"
The Meaning of "land" in the Land Rights Act
30 The term "land" not being defined in the Act, nor exhaustively defined in the Acts Interpretation Act, it is useful to take as a point of departure, its ordinary English meaning which according to the Second Edition of the Oxford English Dictionary, vol 8 is, relevantly for present purposes:-
"1a The solid portion of the earth's surface, as opposed to sea, water. Cf firm land.2 Ground or soil, esp. as having a particular use or particular properties. Often with defining word, as arable land, corn-land, plough-land, stubble land.
3a A part of the earth's surface marked off by natural or political boundaries or considered as an integral section of the globe; a country, territory. Also put for the people of a country
4a Ground or territory as owned by a person or viewed as public or private property;"
31 The legal sense in which "land" is used is reflected in the dictionary definition. Sir Edward Coke defined it thus:
"Land", Terra, in the legall signification, comprehendeth any ground, soil, or earth whatsoever; as meadows, pastures, woods, moores, waters, marishes, furses and heath, ..." - Coke on Litt. 4a.
Coke drew the distinction between land and waters and referred to the fiction that required water to be treated as land in possession actions. But the waters of which he spoke were not the sea. This is made explicit by Blackstone who adopted Coke's definition and added:
"It is observable that water is here-mentioned as a species of land, which may seem a kind of solecisim; but such is the language of the law: and I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; ...but I must bring my action for the land that lies at the bottom, and must call it 20 acres covered with water." - Bl. Comm. II p 18.
The term "land covered by water" appears in various statutory contexts including rating Acts -Hampton Urban Council v Southwark Water Company [1900] AC 3. That term, as Lord Halsbury said is used "...as one of the ordinary subjects of the Queen using his own mother tongue in the ordinary sense" would do.
32 By virtue of s 22(1)(c) of the Acts Interpretation Act the term "land", used in Commonwealth statutes, covers all estates and interests therein unless a contrary intention appears. The section uses terms used in the Interpretation Acts of the various States and the Northern Territory. Those terms are derived ultimately from Lord Brougham's Act 13 and 14 Vict c21 s4 embodied in the Interpretation Act 1889 52 and 53 Vict c63. The operation of s 22(1)(c) will be further considered below. The various kinds of interests to which it refers were discussed by Jacobs J in Re Lehrer and The Real Property Act (1961) SR(NSW) 365 which concerned the interaction of the like definition in s 21(e) of the Interpretation Act 1897 (NSW) with provisions relating to subdivisions in the Local Government Act 1919 (NSW). A messuage is a house and a tenement, "everything in which a man can have an estate of freehold and which is connected with the land"(370). Hereditament is "an even wider word describing interests in real property" (370). The definition of land in the Interpretation Act "... includes freehold and leasehold corporeal and incorporeal interests of every description". It extends to "every interest which in law is, or savours of, realty" (370).
33 The question whether "land" could comprehend seabed arose in Goldsworthy Mining Ltd v Commissioner of Taxation [1973] HCA 7; (1973) 128 CLR 199. The lease, for dredging purposes, of the seabed of a harbour, not including the superjacent waters, was thought by Mason J, sitting at first instance, to be a lease of "land" for the purposes of s 88 of the Income Tax Assessment Act 1936. That section provided for the deductibility of expenditure by lessees of "land used for the purpose of providing assessable income". Mason J noted that there might be "some question" whether the seabed answered the description of land in every sense in which that word is used. He said:
"...in general the word in its legal signification includes any ground, soil or earth." (210)
His Honour referred to the long history of leases granted for the purposes of mining strata of land underlying the sea (210). He concluded that the property which was the subject of the lease was "land within the general acceptation of that expression, notwithstanding that it has the character of sea-bed" (211). Later in the judgment he said:
"The word "land" is defined in the absence of a contrary intention, by s 22 of the Acts Interpretation Act 1901-1966, in such wide and general terms as would enable it to comprehend a part of the sea-bed. There is, I think, nothing in the context of s 88(2) which would require that it should be read in a more restricted sense. I conclude, therefore, that the dredging lease was a lease of land within the meaning of s 88(2)." (215)
In that case his Honour was sitting as a single judge hearing an appeal in the original jurisdiction of the High Court under s 187 of the Income Tax Assessment Act. His judgment, which was to the effect that the taxpayer had not used the seabed for the purpose of producing assessable income, was affirmed by the Full Court in Goldsworthy Mining Ltd v Commissioner of Taxation [1975] HCA 3; (1975) 132 CLR 463 on the assumption, which did not have to be agitated, that the seabed was land the subject of the leases. The artificiality of that usage was acknowledged by Mason and Wilson JJ in Dampier Mining Co Ltd v Commissioner of Taxation [1981] HCA 29; (1981) 147 CLR 408 at 428. That was a case, which like Goldsworthy involved deductibility of expenses under a dredging lease but did not have to determine the question whether the seabed was land. Indeed, so much was conceded by the Commissioner for the purposes of an argument that the so called lease was a licence. The question whether the term "land" in its ordinary legal meaning extends to the seabed is thus free of binding authority. Neither in Goldsworthy nor in Dampier was the question in contention and, given the basis in which each of those decisions was made, the proposition advanced by the applicants forms no part of their ratio.
34 The question raised in this case is not answered by the definition of "land" in s 22(1)(c) of the Acts Interpretation Act. That definition makes clear that land includes all manner of interests in land. What it means simply is that "[i]n the absence of a contrary context the term includes estates or interests in land" - Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 2] [1987] HCA 10; (1987) 162 CLR 153 at 163. The only "contrary intention" relevant to that definition would be an intention to exclude some class of estate or interest from the content of the word "land" as used in the definition. Section 22(1)(c) therefore does not have any bearing upon the question at issue in this case. If the passage from the judgment of Mason J in Goldsworthy Mining at p 215 is to be taken as supporting the contrary proposition, we respectfully disagree with it. It seems to us, with respect, that the true operation of the provision is as set out in the joint judgment of Brennan, Deane, Dawson and Toohey JJ in Jennings Construction at 163. In our opinion the ordinary and ordinary legal meaning of "land" does not extend to the seabed of coastal waters beyond the low water mark.
35 This is not a case in which it is necessary to review the common law relating to Crown ownership of the seabed of coastal waters, ownership which did not apply to the Australian colonies whose boundaries ended at low water mark - New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (The Seabeds case) at 392 (Gibbs J.) and see also McNeil - Common Law Aboriginal Title - Clarendon Press Oxford (1989) at pp 103-105. The waters with which the Court is concerned in this case are assumed to lie within the limits of the Northern Territory as "bays and gulfs therein" within the meaning of the Letters Patent of 6 July 1863 defining the extended colony of South Australia which then included what is now the Northern Territory. The process of annexation and subsequent surrender of the Northern Territory is discussed in Rogers v Squire (1978) 23 ALR 111 at 116-119, (Gallop J) and Yarmirr v Northern Territory (1998) 82 FCR 533 at 551-552 (Olney J) which considers the criteria for determining the bays and gulfs which lie within the limits of the Territory. And see also, the joint judgment of Beaumont and Von Doussa JJ in Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 at 452-457.
36 The beneficial purpose of the Land Rights Act is apparent from the events that led to its enactment, from its long title and from its terms. The first Aboriginal Land Commissioner, Toohey J, wrote in his Report on the Yingawunarii (Old Top Springs) Mudbura Land Claim, AGPS Canberra 1980 at par 70:
"Essentially the object of the Act is to give standing, within the Anglo-Australian legal system to a system of traditional ownership that has so far failed to gain recognition by the Courts."
The Act provides for the restoration of some areas of land to Aboriginal control and gives legislative recognition to Aboriginal rights and interests in that land - R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 355 (Brennan J). Its beneficial purpose is, however, limited to certain categories of land - R v Toohey; Ex parte Attorney-General of the Northern Territory [1980] HCA 2; (1980) 145 CLR 374 at 389. It necessarily involves the reconciliation of competing interests. It was not intended to interfere with existing estates and interests already obtained under the law by persons other than Aborigines - R v Kearney; Ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365 at 372 (Gibbs CJ). On the other hand, s 50 is not to be construed as though contained in "a textbook on traditional land tenure in the feudal system". Its context is the novel concepts and arrangements that entered into Australian law initially through the provision of statutory land rights - R v Toohey; Ex parte Attorney-General (NT) at 392 (Wilson J). Statutory land rights, while providing a legal framework within which traditional owners could exercise their rights under indigenous law and custom, did not operate as a model of such rights. Having regard to the nature of traditional ownership, described by Brennan J in Re Toohey; Ex parte Attorney-General (NT) as "primarily a spiritual affair rather than a bundle of rights" (358) they could not. Recognition of traditional ownership provided by statutory land rights was necessarily limited and qualified by the non-indigenous legal system from which they sprang. Even the recognition of customary native title at common law can never be more than a qualified and limited recognition which has to be accommodated within the framework or skeleton of the common law. The grant of statutory land rights potentially impacts on other interests and from the viewpoint of the legal system requires a degree of clarity and specificity in the definition of their limits. In the end statute law defines those limits on policy grounds which reflect the beneficial purpose of the Act and the interests of other land users.
37 The granting of title to the seabed in the bays and gulfs forming part of the Northern Territory is an issue of importance and sensitivity which appears not to have been the subject of any judicial determination or Commissioner's recommendation in the twenty four years of the Act's operation. It has implications for public fishing rights at common law. Those rights extend to "...the right to fish in tidal waters and estuaries, in tidal rivers and in the sea, except where the Crown or a subject has acquired a proprietary right exclusive of that public right or where the parliament has restricted the common law rights of the public" - Borroloola Land Claim (No 1) Report 1979 Toohey J (par 154). The Woodward Report made no mention of the concept of seabed as a category of land available for grant. Given the artificiality of the extension of the concept of land to encompass the seabed it is unlikely that that extension was intended or contemplated sub silentio in the report. The right to use the seas and the seabed thereunder is a matter which involves the reconciliation of competing interests. The express and limited provisions in the Act in relation to the specific grants defined in Schedule 1 and the absence of any express provisions relating to the seabed indicate an absence of any legislative intention to so provide. The definition of "land" in the Acts Interpretation Act 1901 does not answer the question because it is inclusive and does not address the issue whether land in its legal meaning is to be taken as including seabed.
38 Section 73(1)(d) of the Land Rights Act does not assist the applicants. It applies both to the closures where they exist and the inter-tidal zone where a grant to low water mark has been made - Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 at 11 (Mansfield J). Mansfield J in that case accepted as consistent with that construction of s 73(1)(d) the remarks of Kearney J, as Aboriginal Land Commissioner, in his report on "Closure of the Seas: Castlereagh Bay/Howard Island Region of Arnhem Land" (1988) at par 67(c):
""Land" in its ordinary meaning connotes the solid part of the surface of the earth. In my opinion "land" as appearing in the Land Rights Act bears that meaning and although it comprehends the beds of rivers and streams flowing through the land, it does not extend to the seabed of offshore waters. Section 73(1)(d) of the Land Rights Act specifically addresses the topic of certain waters of the sea, in the context of their traditional use by Aboriginal people. It provides that entry into the 2 kilometre zone of waters adjoining Aboriginal land, and activities within that zone may be regulated; and contemplates that the zone may include waters of the territorial sea of Australia."
Conclusion
39 To define "land" as used in s 50 of the Land Rights Act as covering the seabed of bays and gulfs within the limits of the Northern Territory is artificially to extend the ordinary and ordinary legal meaning of the word. In so concluding, it may be accepted that there may be examples when the word "land" is so extended in particular statutory contexts. The history of the Act and its beneficial purpose must be recognised. But it must also be recognised that the Act applies only to certain categories of land and that it represents a balance of interests. It is inconceivable that the Act was intended to extend to the seabed of bays and gulfs within the Territory and yet failed to make that explicit. Moreover there are express and limited references to waters which have already been canvassed. In our opinion, the Commissioner was correct in his conclusions and the application should be dismissed.
I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French and Kiefel |
Associate:
Dated: December 2000
IN THE FEDERAL COURT OF AUSTRALIA |
|
NORTHERN TERRITORY DISTRICT REGISTRYDISTRICT REGISTRY |
D 19 of 1999 |
BETWEEN: |
WILLIAM MAXWELL RISK APPLICANT |
AND: |
THE NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT THE HON JUSTICE HW OLNEY acting as ABORIGINAL LAND COMMISSIONER SECOND RESPONDENT |
JUDGES: |
FRENCH, KIEFEL AND MERKEL JJ |
DATE: |
8 DECEMBER 2000 |
PLACE: |
BRISBANE |
MERKEL J:
Background
40 On 30 November 1999 the second respondent (Olney J), acting as Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"), made the following determination:
"The Aboriginal Land Commissioner determines that so much of the area claimed in the Beagle Gulf Area Land Claim (Application No 191) as is 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 Aboriginal Land Rights (Northern Territory) Act 1976."
41 The determination was based on his Honour's conclusion that "land" in the Northern Territory, for the purposes of the Land Rights Act, meant "the solid part of the earth's surface which is above the line of the low water mark" and therefore excludes the seabed of any bays or gulfs adjoining the mainland or any islands within the Northern Territory.
42 The applicant has applied to review the determination pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and ss 39B(1) and 39B(1A) of the Judiciary Act 1903 (Cth). Senior counsel for the applicant outlined the ground for review as being that Olney J erred in law in concluding that the seabed of bays and gulfs within the Northern Territory may not, properly, be the subject of a traditional land claim to "an area of land" under s 50(1)(a) of the Land Rights Act. The applicant contends that the seabed of any bay or gulf within the Northern Territory is "an area of land" within the Northern Territory and can therefore be the subject of a traditional land claim under the Land Rights Act. The question arising in the present matter had not previously arisen for decision.
43 The term "land" was not defined in the Land Rights Act. However, s 22(1)(c) of the Acts Interpretation Act 1901 (Cth) provides:
"(1) In any Act, unless the contrary intention appears:...
(c) Land shall include messuages tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein."
44 The question of whether the definition of land in s 22(1)(c) includes a part of the seabed was considered in Goldsworthy Mining Ltd v Federal Commissioner of Taxation [1973] HCA 7; (1973) 128 CLR 199. Goldsworthy Mining concerned the entitlement of a taxpayer to claim allowable deductions for improvements which were required to be made under the provisions of a lease "of land" used for the purpose of producing assessable income. In considering whether a dredging lease of part of the seabed of the Port Headland harbour was a lease of land, Mason J (at 210-211) said:
"There is no reason for thinking that, at common law, a lease cannot be granted of a portion of the sea-bed, provided that the property the subject of the grant is defined with sufficient certainty. There may be some question whether the sea-bed answers the description of `land' in every sense in which that word is used. But in general the word in its legal signification includes any ground, soil or earth (Halsbury's Laws of England, 3rd ed., vol. 32, p. 249). There is a long history of leases for mining purposes of strata of land underlying the sea, which supports the view that a lease may be granted of portion of the sea-bed."
45 His Honour then considered the definition of "land" in s 22(1)(c) of the Acts Interpretation Act at 215:
"The word `land' is defined, in the absence of a contrary intention, by s 22 of the Acts Interpretation Act 1901-1966, in such wide and general terms as would enable it to comprehend a part of the sea-bed. There is, I think, nothing in the context of s. 88(2) which would require that it should be read in a more restricted sense. I conclude, therefore, that the dredging lease was a lease of land within the meaning of s. 88(2)."
46 On appeal ((1975) [1975] HCA 3; 132 CLR 463) the Full Court affirmed the decision of Mason J to disallow the taxpayer's claim to be entitled to an allowable deduction on the ground that the expenditures in making improvements were not deductible because the land leased had not been used for the purpose of producing assessable income. Although the Commissioner did not contend that a lease of a portion of the seabed was not a lease of land, the judgments on appeal appeared to assume the correctness of the views of Mason J on that issue.
47 The issue also arose in Dampier Mining Co Ltd v Federal Commissioner of Taxation [1981] HCA 29; (1981) 147 CLR 408. Although the Commissioner did not argue that a lease of a portion of the seabed was not a lease of land, none of the judgments cast any doubt on the view expressed by Mason J in Goldsworthy Mining that a dredging lease in respect of the seabed was a lease of land: see Gibbs CJ at 413, Stephen J at 418, Mason and Wilson JJ at 427-428 and Murphy J at 439. Mason and Wilson JJ (at 428), in discussing the right of exclusive possession conferred under the leases to part of the seabed, observed that "it is somewhat artificial to speak of the seabed as `land'". Notwithstanding that observation, it was not suggested that the broad inclusive definition of land in s 22(1)(c) did not apply to the seabed.
48 In the absence of any authority doubting the correctness of Mason J's observations in Goldsworthy Mining concerning the meaning of "land" in s 22(1)(c) of the Acts Interpretation Act, it is appropriate to adopt his Honour's approach to s 22(1)(c). Accordingly, the question to be determined is whether there is anything in the context of s 50(1)(a) of the Land Rights Act which requires that the words "an area of land" be read in a more restricted sense, so as to exclude from its ambit claims to any part of the seabed of the bays and gulfs within the Northern Territory. For present purposes the context includes other provisions of the Act, its preamble, the pre-existing state of the law, other statutes in pari materia and the mischief which the statute was intended to remedy: see Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 per Viscount Simonds, K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315 per Mason J.
The Northern Territory
49 The limits of the Northern Territory were considered at first instance by Olney J in Yarmirr v Northern Territory (1998) 82 FCR 533 at 551-558 and on appeal by the Full Court in Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 at 449-471 per Beaumont and von Doussa JJ and at 534-535 per Merkel J.
50 The limits of the Northern Territory were defined in Letters Patents dated 6 July 1863 that annexed the territory, which now constitutes the Northern Territory, to South Australia. This situation still existed at the time of Federation on 1 January 1901. The Northern Territory was surrendered to the Commonwealth in 1911 and remained under Commonwealth control until the granting of self government in 1978. The Letters Patent defined the limits of the Territory as including "the bays and gulfs" within the defined areas. While there may be some dispute about whether particular areas of sea constitute a "bay" or a "gulf", any bay or gulf within the area defined has, since 6 July 1863, been part of the Northern Territory. Accordingly, when the Land Rights Act was enacted in 1976 the territorial limits of the Northern Territory included the bays and gulfs, as well as the islands, within the area described in the Letters Patent. Generally, the limits otherwise only extended to, but not beyond, the low water mark of the coastline of the mainland and those islands.
The decision of Olney J
51 Olney J, correctly in my view, found that dictionary definitions of "land" were of little assistance in determining whether "an area of land" includes the seabed of bays and gulfs, because they were equally open to construing "land" as extending to either the whole of the earth's solid surface (including the submerged part), or only to the exposed part.
52 His Honour also found the general definition of "land" in s 22(1)(c) of the Acts Interpretation Act to be of little assistance because it did not address the question of whether land includes the seabed of bays and gulfs. Unfortunately, it does not appear that his Honour was referred to the decision of Mason J in Goldsworthy Mining Ltd that the definition of "land" in s 22(1)(c) can include the seabed.
53 Olney J made extensive references to the reports of Justice Woodward, which formed the basis for the introduction of the Land Rights Act, and to the subsequent legislative history of the Land Rights Act and said at [25]:
"Paragraph 91 of the final Woodward Report recommended that the proposed legislation include a definition of Aboriginal land which included both offshore islands and waters within 2 kilometres of the low tide line, and although the drafting instructions do not contain such a definition, the recommendation is reflected in the proposed Schedule 3. Not only did governments both before and after November 1975 not act on this recommendation, the law ultimately passed by Parliament gave the Northern Territory responsibility for controlling access to the areas of sea adjacent to Aboriginal land which Justice Woodward recommended should be vested in the relevant Aboriginal communities as part of their land. In these circumstances Parliament answered unequivocally in the negative the Aboriginal communities' question referred to at para 205 of the final Woodward Report namely, whether their land rights will extend out to sea."
54 His Honour expressed his conclusion at [26]:
"Having regard to the context in which the Land Rights Act was developed, (including the comments and recommendations in the Woodward Reports) the specific provisions of the Act, (particularly those of the land descriptions in Schedule 1) and the absence of any defining provision that would extend the meaning of `land' to include the bed of bays and gulfs which are part of the Northern Territory, I am of the view that for the purposes of the Land Rights Act the words `land in the Northern Territory' mean the solid part of the earth's surface which is above the line of the low water mark. In reaching this conclusion I have not overlooked the fact that the Land Rights Act is clearly beneficial legislation which in the case of doubt should be construed in a manner favourable to those for whose benefit it was passed. In this case there is no basis to doubt what Parliament intended. Accordingly, I am of the opinion that the bed of any bays or gulfs of the mainland of the Northern Territory and of any islands adjacent to any part of the mainland, is not within the ambit of the definition of `Crown land' in s 3(1) of the Land Rights Act and cannot be the subject of an application made under s 50(1)(a) of that Act. It follows that the Aboriginal Land Commissioner has no function to perform in relation to a claim to the bed of any such bays or gulfs."
55 Although his Honour may not have directly addressed the issue of whether "land" was used in s 50(1)(a) of the Land Rights Act in a more restricted sense than in s 22(1)(c) of the Acts of Interpretation Act, it is fairly clear that he concluded from the legislative history of the Land Rights Act that it was. The issue is whether he erred in law in doing so.
The Land Rights Act
56 The long title of the Land Rights Act is "an Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes".
57 The manner in which the Act operates to grant title to Aboriginal land has been considered in a number of High Court decisions. In The Queen v Toohey; Ex parte Attorney-General (NT) [1980] HCA 2; (1980) 145 CLR 374 at 384-385 Stephen, Mason, Murphy and Aickin JJ said:
"Whether or not the land here in question is indeed land to which s. 50 (1) applies, so that application may be made to the Commissioner in respect of it, depends upon the meaning to be given to that sub-section's description of land to which it applies. The relevant part of s. 50 (1) is as follows:`The functions of the Commissioner are -
(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have 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 -'
There then follow details of what the Commissioner is to do in relation to such applications.
The description, in par.(a) of s. 50 (1), of land which may be the subject of an application to the Commissioner is replete with defined terms. Their meanings, appearing in s. 3 (1) of the Act, in turn employ words having defined meaning. When account is taken of the interaction of these various definitions, the description of that class of land to which the section applies appears to be as follows:
Land in the Northern Territory of Australia (i) which is not currently held for an estate in fee simple; (ii) which is not set apart for or dedicated to a public purpose under any statute; (iii) which is not the subject of a deed of grant held in escrow by a Land Council; (iv) which is not in a "Town" as defined in section 3; and in which any estates or interests not held by the Crown are all held by, or on behalf of, persons who are members of the Aboriginal race of Australia."
58 It was not suggested at the hearing that the seabed of the bays and gulfs, the subject of the Beagle Gulf Area Land Claim, falls within any one of the express exclusions referred to in the joint judgment.
59 It was common ground that the Land Rights Act is both remedial and beneficial and, therefore, is to be construed liberally. In determining whether the seabed of bays and gulfs was to be excluded from the rights and interests the Act can confer upon traditional Aboriginal owners of land in the Northern Territory, it is appropriate to consider the nature of those rights and interests. Brennan J, in The Queen v Toohey: Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 ("Meneling Station") at 354-360, explained those rights and interests as follows:
"The Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") was enacted by the Parliament of the Commonwealth consequent upon the final Report made by the Hon. Mr. Justice A. E. Woodward under a Commission to inquire into and report upon, inter alia, the appropriate means to recognize and establish the traditional rights and interests of Aboriginals in and in relation to land. (at 354)...
The Act provides for the restoration of some areas of land within the Northern Territory to Aboriginal control and gives legislative recognition to Aboriginal rights and interests in that land. The Act does not confer or authorize the Crown to confer proprietary rights upon particular Aboriginals beneficially: Land Trusts are created to hold the title to an estate in fee simple in Aboriginal land (s. 4). `Aboriginal land' is defined by s. 3(1) to mean -
`(a) land held by 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;' (at 355)
...The granting of land under the Act vests in the hands of Aboriginal Land Trusts proprietary rights which, unlike the traditional usufructuary rights which Blackburn J held not to be property, are recognized by the common law. Those proprietary rights are carved out of the Crown's radical title. (at 355)
...
The Act provides for the grant of title to two classes of Crown land. The first class consists in the parcels of land described in Sch. 1 (ss. 10 and 12). That land substantially comprises the Aboriginal reserves in the Northern Territory. The second class consists in other areas of Crown land in respect of which the Aboriginal Land Commissioner has made a recommendation to the Minister under s. 50(1)(a) that that area be granted to a Land Trust (ss. 11 and 12). (at 355)
...
To understand the nature of [the] functions [of the Commissioner under s 50(1)(a)], it is necessary to appreciate the concept of `traditional Aboriginal owners', a term defined in s. 3(1). As that definition requires reference to `Aboriginal tradition', defined in the same sub-section, it is convenient first to refer to the definition of that term:
`Aboriginal tradition' means 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 . . .'
Aboriginal traditions, observances, customs and beliefs applied in relation to sites and areas of land are different from non-Aboriginal traditions, observances, customs and beliefs. Upon the evidence placed before him in Milirrpum, Blackburn J. commented [(1971) 17 FLR, at p 167]:
`As I understand it, the fundamental truth about the [A]boriginals' relationship to the land is that whatever else it is, it is a religious relationship.'
The religious relationship of particular Aboriginal groups with their `country' (the term customarily used to describe the land with which there is a traditional connexion) invests the country of each group with a unique significance for that group. (at 356)
...
..the statutory definition of `traditional Aboriginal owners'...reflects the spiritual and cultural significance of land for Aboriginals. The term `traditional Aboriginal owners' is defined by s. 3(1) to mean -
`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. . .' . (at 357)
Owners of land under Anglo-Australian law are understood to be vested with a bundle of rights exercisable with respect to land: (cf. per Rich J. in Minister for the Army v. Dalziel [(1944) [1944] HCA 4; 68 CLR 261, at p 285]. The term `traditional Aboriginal owners' has a very different connotation. A traditional right to forage is the only `right' included as an element in the definition, but even that right is not necessarily exclusive of the foraging rights of others. Foraging rights apart, the connexion of the group with the land does not consist in the communal holding of rights with respect to the land, but in the group's spiritual affiliations to a site on the land and the group's spiritual responsibility for the site and for the land. Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights. (at 357-358)
...
...if the Aboriginal Land Commissioner finds that `there are Aboriginals who are the traditional Aboriginal owners of the land' and recommends that land be granted in accordance with ss. 11 and 12, and if the land is granted under s. 12 and becomes Aboriginal land, any Aboriginal has or any Aboriginal group have his or their traditional rights restored - not in a form unrecognized by law, but in the form of rights conferred by statute. Subject to the proprietary rights of third parties (not being a Land Trust or an Aboriginal Council or corporation) Aboriginals are entitled to their traditional rights of entry, occupation and use with respect to Aboriginal land (s. 71). Section 71(1) provides:
`Subject to this section, an Aboriginal or a 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, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor.'
The Act thus protects the exercise of those usufructuary rights which Aboriginal tradition either required certain groups of Aboriginals to exercise or allowed certain groups to enjoy with respect to land." (at 358-359)
60 In summary, the Land Rights Act was enacted in order to restore areas of land within the Northern Territory to Aboriginal ownership and control in recognition of traditional Aboriginal rights and interests in that land. The rights and interests that are recognised include those that reflect the spiritual and cultural significance of the land for the traditional Aboriginal owners. When land is granted under s 12 of the Land Rights Act it becomes "Aboriginal land" and, as was said by Brennan J, "any Aboriginal has or any Aboriginal group have his or their traditional rights restored". The restoration of those rights is protected by s 71(1), which provides for Aboriginal persons to enter upon Aboriginal land and use and occupy that land "in accordance with Aboriginal tradition".
61 The rights and interests granted under the Act are intended to apply to any area of land within the Northern Territory which does not fall within one of the express exclusions and which can be used or occupied according to Aboriginal tradition. In that context I can discern no reason why a broad definition of land "in its legal signification", which includes any "ground, soil or earth", whether submerged or not, (see Goldsworthy Mining at first instance at 210-211 per Mason J) should not be regarded as an area in respect of which traditional rights and interests may be granted under the Land Rights Act. As the land must have "traditional Aboriginal owners" (s 50(1)(a)), it is implicit from the definition of that term that it must be an area over which "foraging" in accordance with "Aboriginal tradition" can occur. Likewise it is implicit that it must be an area which can be "entered upon" and "used or occupied" in accordance with Aboriginal tradition (see for example, s 71(1)). The material before the Court does not establish that parts of the bed of, or reefs within, bays and gulfs of the Northern Territory are areas that are not capable of being used or foraged upon in accordance with Aboriginal tradition. Indeed, the nature of traditional activities of Aboriginal people appearing in the material suggests the contrary.
62 Clearly, difficulties can arise in a particular case as to whether a part of a seabed, or of a reef, has been "used" or was the subject of "foraging" in accordance with Aboriginal tradition. The difficulties may result in that particular claim not being established. However, difficulties in establishing a claim in respect of an area cannot exclude the area from the operation of the Act.
63 Furthermore, there is nothing about the nature of an estate in fee simple that makes it inapplicable to the seabed: see Attorney-General of British Colombia v Attorney-General of Canada [1914] AC 153 at 168-171. Plainly, the Crown has radical title to the seabed to the extent it has not been alienated by Crown grant or otherwise. As was explained by Brennan J at 335 in Meneling Station, the proprietary rights granted under the Land Rights Act "are carved out of the Crown's radical title". See also Lansen v Olney [1999] FCA 1745; (1999) 169 ALR 49 at 63-65. Also, s 3 of the Crown Lands Ordinance 1931 (NT) was amended in 1969 to add to the definition of "Crown Lands" the "bed of the sea within the territorial limits of the Northern Territory" (see s 2 of the Crown Lands Ordinance (No 2) 1969 (NT)). Part IV of the Ordinance provides that grants in the fee simple may be made in respect of Crown Lands. Accordingly, there appears to be no conceptual reason for concluding that the Crown cannot grant an estate in fee simple in the seabed.
64 The Court was taken to an extensive body of material, including other statutes and the reports of Justice Woodward. However, I have been unable to discern from that material any intention that the recognition and protection of the body of traditions, observances, customs and beliefs of Aboriginals in the Northern Territory by the Land Rights Act was to be limited to "the solid part of the earth's surface which is above the line of the low water mark" within the Northern Territory. Nor am I able to discern from the material any legislative intention that the rights capable of being conferred under the Act exclude usufructuary rights or rights to forage in relation to the seabed of the bays or gulfs that form part of the Northern Territory. Furthermore, the definition of "land" contended for by the first respondent being the exposed part of the earth's surface, is itself fraught with difficulty. For example, it was unlikely that the Act intended to exclude from its operation the beds of rivers, lakes and estuaries within the Northern Territory.
65 Considerable reliance was placed by Olney J, and by the Northern Territory, upon the legislature not adopting Justice Woodward's proposals for the definition of Aboriginal land. The proposals would have provided that where a coast line is involved, Aboriginal land includes "both off-shore islands and waters within two kilometres of the low tide line": see Aboriginal Land Rights Commission, Second Report, April 1974 at [91] and s 12 and Sch 3 Col 1 of the draft legislation, which appeared as an appendix to the Report and defined Aboriginal land as including "waters within two kilometres of seaward of the low tide lines" in the defined areas. It was contended by the Northern Territory that the failure to adopt this definition was a rejection of Justice Woodward's recognition of the significance of offshore areas for traditional activities of Aboriginals in the Northern Territory.
66 Although the recommendations of Justice Woodward were not adopted in the form he recommended, it is unclear as to why that occurred. There is nothing in the extrinsic material that suggests that the reason why the "two kilometre" proposal was not adopted was an intention to exclude the seabed of the bays and gulfs of the Northern Territory from the areas that might be claimed. What does emerge is that, rather than adopting the proposal, the legislature provided in s 73(1)(d) of the Land Rights Act for the creation of a two kilometre sea buffer zone "adjoining Aboriginal land" to protect traditional rights and interests.
67 When enacted, s 73(1) provided as follows:
"(1) The power of the Legislative Assembly for the Northern Territory to make Ordinances under section 4U of the Northern Territory (Administration) Act 1910 extends to the making of-(a) Ordinances providing for the protection of, and the prevention of the desecration of, sacred sites in the Northern Territory, including sacred sites on Aboriginal land, and, in particular, Ordinances regulating or authorizing the entry of persons on those sites, but so that any such Ordinances shall provide for the right of Aboriginals to have access to those sites in accordance with Aboriginal tradition and shall take into account the wishes of Aboriginals relating to the extent to which those sites should be protected;
(b) Ordinances regulating or authorizing the entry of persons on Aboriginal land, but so that any such Ordinances shall provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition;
(c) Ordinances providing for the protection or conservation of, or making other provision with respect to, wildlife in the Northern Territory, including wildlife on Aboriginal land, and, in particular, Ordinances providing for schemes of management of wildlife on Aboriginal land, being schemes that are to be formulated in consultation with the Aboriginals using the land to which the scheme applies, but so that any such Ordinances shall provide for the right of Aboriginals to utilise wildlife resources; and
(d) Ordinances 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 Ordinances shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition;
but any such Ordinance 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."
68 After self government in 1978, s 73(1) was amended to provide for the power conferred to be exercised by the Legislative Assembly of the Northern Territory under the Northern Territory (Self Government) Act 1978 (Cth).
69 Counsel for the Northern Territory relied upon s 73(1)(d) to contend that the power conferred by that subsection is inconsistent with an intention to confer land rights in respect of the seabed of the bays and gulfs. In particular, it was submitted that, if land rights were granted in respect of the seabed, there would be no need for laws regulating or prohibiting the entry of persons into, or controlling fishing, or other activities, in waters of the sea above the seabed in the bays and gulfs. Further, it was submitted that in deciding to deal with the issue of "waters of the sea" in the manner set out in s 73(1)(d), the legislature intended that provision to constitute a code in respect of the sea areas forming part of, or adjoining, the Northern Territory. Accordingly, so it was said, a clear legislative intent emerges that no land rights were to be conferred in respect of areas which were below the low water mark.
70 I do not accept the contentions of the Northern Territory for a number of reasons. First, s 73(1) provides for legislation which is protective of the land rights granted under the Act and reveals no intention, directly or indirectly, to limit such rights. Laws may be enacted in accordance with s 73(1) to protect rights granted under the Act irrespective of whether those rights are in respect of onshore land, the seabed or overlying waters.
71 Second, s 73(1)(d), by regulating or prohibiting entry into "waters of the sea" adjoining and within two kilometres of Aboriginal land, represents the means by which the legislature gave effect to Justice Woodward's recognition of the potential significance of offshore waters for traditional activities of Aboriginals in the Northern Territory. The "buffer zone" that may be created under laws enacted pursuant to s 73(1)(d) can extend to waters of the territorial sea adjoining and within two kilometres of the seabed of bays and gulfs of the Northern Territory. Section 73(1)(d) is therefore not inconsistent with the seabed being "Aboriginal land". Thus, no legislative intention is discernible from s 73(1)(d) to exclude the seabed of bays and gulfs from being capable of constituting Aboriginal land for the purposes of the Land Rights Act.
72 Third, the effect on overlying waters of a grant of an estate in fee simple to the seabed is plainly a vexed question: see Attorney General of British Colombia at 170-171. Thus, it is not self evident that there is any anomaly if s 73(1)(d) were concerned with waters adjoining, but not overlying, any part of the seabed which becomes Aboriginal land under the Land Rights Act.
73 There might be some reason to regard as artificial a conclusion that the seabed of bays and gulfs is "land" under English or Australian property law. However, I do not accept that there is such artificiality in relation to an enactment concerned with recognising and restoring "traditional Aboriginal rights", where the material suggests that such rights can be exercised in relation to some parts of the seabed of bays and gulfs within the Northern Territory.
74 Both parties sought to gain some assistance from the precise definitions of Aboriginal land in Sch 1 of the Land Rights Act. In my view little assistance is to be gained from the definitions. The definitions describe the Crown land which was to be granted under s 4 of the Land Rights Act to Land Trusts for the benefit of Aborigines entitled by Aboriginal tradition to the use and occupation of the land concerned. Although the Schedule defines areas of land to include certain waters, that arose because of the need to define the boundaries of the areas set out in the Schedule, and does not necessarily indicate whether Aboriginal land to be granted pursuant to an application under s 50(1)(a) was to include, or exclude, the seabed of bays or gulfs.
75 Consequently, rather than indicate an intention that, for the purposes of the Act, land is to have a restricted meaning which excludes the seabed of bays and gulfs, the extrinsic material relied upon suggests either that no consideration was given by the legislature to the question of whether Aboriginal land is to include the seabed, or that the legislature left that issue for determination by the courts.
76 Cases on this issue in other contexts in other jurisdictions are also of little assistance. Ultimately, such cases turn on the particular words and context of the statute in question: see Argyll & Bute DC v Secretary of State for Scotland (1976) SC 248; cf Re Rivtow Industries v Assessment Commissioner of British Columbia (1986) 24 DLR (4th) 475.
Conclusion
77 For the above reasons I have concluded that it is not appropriate to apply a restricted meaning to the definition of land in the Land Rights Act.
78 It follows that I have arrived at a different conclusion to Olney J on the issue of legislative intent in relation to the seabed of the bays and gulfs within the Northern Territory. Consequently, the applicant is entitled to succeed in his application to review his Honour's decision on the ground that he erred in law.
79 For the above reasons the applicant is entitled to a declaration that:
"So much of the area claimed in the Beagle Gulf Area Land Claim (Application No 191) as is adjacent to, and seaward of the low water mark of the seacoast of the Northern Territory or of any island adjacent thereto which is the seabed of any bay or gulf within the Northern Territory is land which may properly be the subject of an application pursuant to s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976."
80 Finally, it needs to be emphasised that my decision is concerned solely with the question of whether any part of the seabed of bays and gulfs within the Northern Territory is capable of being claimed as "Aboriginal land" under the Land Rights Act. Whether any such claim can be made out, and the consequences that follow from it being made out, are matters that can only be determined on a case by case basis. There is a vast difference between stating that such "land" may, as a matter of law, be claimed and determining whether a particular claim, as a matter of fact, is established.
I certify that the preceding forty-
one (41) numbered paragraphs are
A true copy of the Reasons for
Judgment herein of the Honourable
Justice Merkel.
Associate:
Date:
Counsel for the Applicant: |
Mr J. Basten QC with Mr MD Levy |
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Solicitor for the Applicant: |
Northern Land Council |
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Counsel for the First Respondent: |
Ms R J Webb with Ms A Kneebone |
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Solicitor for the First Respondent: |
Solicitor for the Northern Territory |
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Counsel for the Second Respondent: |
No appearance |
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Solicitors for the Second Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
15 May 2000 |
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Date of Judgment: |
8 December 2000 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2000/1779.html