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Federal Court of Australia |
Last Updated: 25 February 2000
Arnhemland Aboriginal Land Trust v Director of Fisheries (Northern Territory)
ABORIGINAL LAND RIGHTS - Aboriginal Land Rights (Northern Territory) Act 1976 - grant of land to low water mark - whether terms of Act and grant exclude right to take fish and other aquatic life from tidal waters overlying Aboriginal land - whether terms of Act and grant are inconsistent with public right to fish or with licences granted under Fisheries Act 1988 (NT) authorising taking of fish and other aquatic life in tidal waters overlying Aboriginal land - whether s 73(1)(d) of Aboriginal Land Rights (Northern Territory) Act 1976 in referring to waters of the sea adjoining Aboriginal land refers only to waters of the sea seaward of low water mark.
ABORIGINAL LAND RIGHTS - Aboriginal Land Rights (Northern Territory) Act 1976 - grant of land to low water mark including line at low water mark across mouths of rivers, streams and estuaries - whether terms of Act and grant exclude right to take fish and other aquatic life from waters in rivers, streams and estuaries affected by tidal waters - whether terms of Act and grant are inconsistent with public right to fish or with licences granted under Fisheries Act 1988 (NT) authorising taking of fish and other aquatic life in waters in rivers, streams and estuaries extending inland over Aboriginal land which are affected by tidal waters - whether effect of Aboriginal Land Rights (Northern Territory) Act 1976 and grant of land excludes public right to fish or excludes rights under licences granted under Fisheries Act 1988 (NT) authorising taking of fish and other aquatic life in such waters absolutely or at high water mark line across rivers, streams and estuaries.
FISHING RIGHTS - nature of public right to fish - whether public right to fish extends to sedentary fish and other aquatic life - whether public right to fish extends to temporary affixing of nets to soil underlying tidal waters.
FISHING RIGHTS - whether public right to fish abrogated by Fisheries Act 1988 (NT).
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 4, 4(1), 5(1), 5(1)(b), 5(2), 10, 10(1), 10(2), 12, 12(1)(a), 12(2), 12(4), 15, 19(4A), 19(11), 23, 23(1)(b), 23(1)(e), 23(1)(e), 23(4), 23(2), 23(2)(e), 23(4), 70, 70(2), 71(1), 71(2), 73, 73(1), 73(1)(d) and 74
Acts Interpretation Act 1901 (Cth) s 22(1)(c)
Federal Court Rules O 29 r 2
Fisheries Regulations ss 31(2)(b), 33(1)(b), 33(1)(c) and 41(c)
Native Title Act 1993 (Cth) ss 13(1)(a) and 253
Northern Territory (Self-Government) Act 1978 (Cth)
Aboriginal Land Act 1978 (NT) Pt III, ss 12 and 15
Associations Incorporation Act 1963 (NT)
Fisheries Act 1988 (NT) ss 10(1), 10(2), 11A, 11(7), 12, 12A, 12B, 18, 19, 20, 27, 50 and Pt III
Interpretation Act (NT) s 59
Fisheries Act 1904 (SA)
Fisheries Act 1959 (Tas)
Sea Fisheries Regulations 1962 (Tas)
The Queen v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69; (1983) 158 CLR 327 at 354 - 359 discussed
Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 at 590 - 593, 594 - 598 and 599 discussed
Commonwealth of Australia v Yarmirr [1999] FCA 1668 at [52], [205ff], [212] and [239] discussed
Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 applied
Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 at 267, 268, 277 - 278 and 298 applied
Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 at 325, 329 and 330 applied
Minister for Primary Industries and Energy v Davey (1993) 47 FCR 151 at 168 applied
Anderson v Alnwick District Council [1993] 3 All ER 613 at 621 applied
Blundell v Catterall (1821) 5 B & Ald 268 applied
Attorney General for British Columbia v Attorney General for Canada [1914] AC 153 at 167 and 171 applied
Attorney General v Emerson [1891] AC 649 at 656 applied
Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567 at 585 applied
Ingram v Percival [1969] 1 QB 548 at 554 - 555 applied
R v Kearney; ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 at 418, 419 and 420 applied
Goodman v Mayor of Saltash (1882) 7 App Cas 633 at 646 applied
Parker v Lord Advocate [1904] AC 364 at 377 applied
Anderson v Alnwick District Council [1993] 3 All ER 613 at 622 - 623 applied
Brinckman v Matley [1904] 2 Ch 313 at 316 applied
Aboriginal Land Rights Commission, Second Report, April 1974
Borroloola Land Claim (No 1) Report, 1979, pars 154 and 156
Limmen Bight Land Claim Report, 1980
Alligator Rivers II Land Claim Report, 1981
Borroloola Land Claim (No 2) Report, 1996
Kearney J "Closure of the Seas: Castlereagh Bay/Howard Island Region of Arnhem Land" (1988), par 67(c)
Halsbury's Laws of England, 4th ed, Vol 6, p 237, pars 581 and 582
ARNHEMLAND ABORIGINAL LAND TRUST and NORTHERN LAND COUNCIL
v DIRECTOR OF FISHERIES (NORTHERN TERRITORY),
NORTHERN TERRITORY OF AUSTRALIA, and
NT FISHING INDUSTRY COUNCIL (INC)
DG 5 OF 1997
MANSFIELD J
24 FEBRUARY 2000
IN THE FEDERAL COURT OF AUSTRALIA |
|
NORTHERN TERRITORY DISTRICT REGISTRY |
JUDGE: |
MANSFIELD J |
DATE: |
24 FEBRUARY 2000 |
PLACE: |
DARWIN |
1 The Arnhemland Aboriginal Land Trust ("the Land Trust") is an Aboriginal Land Trust established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"). The Northern Land Council ("the Land Council") is an Aboriginal Land Council also established under the Land Rights Act. Where it is convenient to refer to the Land Trust and the Land Council together, I shall call them "the applicants".
2 The Director of Fisheries (Northern Territory) ("the Director") is an office established by the Fisheries Act 1988 (NT) ("the Fisheries Act"). The holder of that office is responsible for the administration of the Fisheries Act, including the issuing of licences granted under and pursuant to the Fisheries Act to persons who fish in waters of the Northern Territory. The NT Fishing Industry Council (Inc) ("the Fishing Industry Council") is an association incorporated under the Associations Incorporation Act 1963 (NT). It is the representative body for the commercial fishing and aquaculture industries in the Territory, and its membership includes a number of holders of licences issued by the Director of Fisheries under the Fisheries Act. The Fishing Industry Council was joined as respondent in this proceeding on its own behalf, to represent the interests of its members. No orders are sought against it.
3 This case concerns the extent to which the holder of a licence granted by the Director under the Fisheries Act may fish, and engage in activities involving fishing, in waters in the inter-tidal zone overlying land granted to the Land Trust. For the purposes of the determination of the issues, the parties agreed upon the facts and the questions which the Court is required to answer.
4 The background to, and general structure of, the Land Rights Act was explained by Brennan J in The Queen v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69; (1983) 158 CLR 327 at 354-359. The Act provides for "the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes."
5 The particular provisions by which the land under consideration was subject to a grant are ss 10 and 12 of the Land Rights Act.
6 Section 10(1) of the Land Rights Act provides:
"10(1) Where:(a) a Land Trust has been established in respect of land constituting, or included within, an area of land described in Schedule 1; and
(b) subsection (2) does not apply in relation to that land or applies in relation to a part only of that land;
the Minister shall recommend to the Governor-General that a grant of an estate of fee simple in that land, or in the part of that land to which subsection (2) does not apply, be made to that Land Trust."
7 Schedule 1 includes under the heading "Arnhem Land (Mainland)" a detailed description of certain land. It is not necessary to set out that description. I shall adopt the description `Arnhem Land (Mainland)' or `the land'. It is the land which gives rise to the present issues. Section 10(2) concerns land described in Schedule 1 where a person other than the Crown has an estate or interest in the whole or part of the land. It does not require consideration to answer the questions presently before the Court.
8 The Land Trust was established under s 4 of the Land Rights Act to hold title to Arnhem Land (Mainland). Its functions are to hold title to land vested in it under the Land Rights Act, and to exercise its powers as owner of that land for the benefit of the Aboriginals concerned: s 5(1). It must do so in accordance with the direction of the Land Council: s 5(2).
9 The Land Council's functions include the protection of the interests of traditional Aboriginal owners of Aboriginal land: s 23(1)(b). They also include negotiating with persons desiring to obtain an estate or interest in Arnhem Land (Mainland) on behalf of its traditional Aboriginal owners and of other Aboriginals interested in that land: s 23(1)(e). An estate or interest in the land may include a licence with respect to the land: s 23(4). With the approval of the Minister, the Land Council may grant access to Arnhem Land (Mainland), and may undertake any scheme for the maintenance of wildlife on that land: s 23(2). Section 23(3) provides:
"In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connexion with land held by a Land Trust, unless the Land Council is satisfied that:(a) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and
(b) any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council."
10 Section 12 describes the means by which the land grant, which is the subject of a recommendation under s 10(1), is effected. It relevantly provides.
"Subject to this section, on the receipt of a recommendation under section 10 or 11 with respect to land, the Governor-General may:
(a) in the case of a recommendation under subsection 10(1) or (2A) or section 11, not being a recommendation that includes a recommendation under subsection 11(5) - execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the grantee;
..."
11 Pursuant to ss 10(1) and 12(1)(a) of the Land Rights Act, on 30 May 1980 the Governor-General executed a Deed of Grant of an estate in fee simple to the Land Trust of Arnhem Land (Mainland) and delivered it to the Land Trust ("the grant"). It took effect upon its delivery: s 12(4). The grant was in the following terms:
"... DO HEREBY GRANT to the ARNHEM LAND ABORIGINAL LAND TRUST an Estate in Fee Simple subject to the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 and subject to the conditions reservations and exceptions hereinafter contained in ALL THAT land in the Northern Territory of Australia above a line along the low water mark with its boundary along the seacoast of the Van Diemen Gulf, the Arafura Sea and the Gulf of Carpentaria, but excluding from the said line those parts along the low water marks of all intersecting rivers, streams and estuaries inland from a straight line joining the seaward extremity of each of the opposite banks of each of the said rivers, streams and estuaries so that the aforesaid boundary line shall follow that part below low water mark of each of the aforesaid straight lines across each of the aforesaid rivers, streams and estuaries being Northern Territory Portions [enumerated] and being more particularly shown on Compiled Plan 4181 which has been deposited with the Registrar-General, Darwin in the said Territory BUT EXCEPTING THEREOUT all that land described in Schedule One hereto [it is not suggested that exception has any relevance to the present issues] AND EXCLUDING from the land hereby granted, firstly any land on which there was on the 26th day of January 1977, being the time of commencement of section 3 of the Aboriginal Land Rights (Northern Territory) Act 1976, a road over which the public had, at that time, a right of way and secondly any land over which there is, at the time of the execution of this Deed of Grant, a road over which the public has a right of wayAND I HEREBY RESERVE AND EXCEPT to the Commonwealth of Australia the right to any minerals existing in their natural condition, or in a deposit of waste material obtained from any underground or surface working, on or below the surface of the said land, being minerals all interests in which are vested in the Commonwealth of Australia with full power and authority for the Commonwealth of Australia its officers servants and agents and such person or persons as shall from time to time be authorised by it them or any of them to enter upon the said land and to search for mine dig and remove those minerals and the right of full and free ingress egress and regress into out of and upon the land hereby granted for the several purposes aforesaid or any of them
AND I HEREBY RESERVE AND EXCEPT to the Northern Territory of Australia the right to any minerals existing in their natural condition, or in a deposit of waste material obtained from any underground or surface working, on or below the surface of the said land, being minerals all interests in which are vested in the Northern Territory of Australia with full power and authority for the Northern Territory of Australia its officers servants and agents and such person or persons as shall from time to time be authorised by it them or any of them to enter upon the said land and to search for mine dig and remove those minerals and the right of full and free ingress egress and regress into out of and upon the land hereby granted for the several purposes aforesaid or any of them."
12 The description of the land in the grant is not in the same terms as the description of the land described as Arnhem Land (Mainland) in sch 1 of the Land Rights Act. However, the parties have indicated that the land is the same land. I have considered this matter upon that basis.
13 For present purposes, subject to the provisions of the Land Rights Act and subject to the conditions, reservations and exceptions contained in the grant, the grant vested an estate in fee simple in all that land in the Northern Territory above a line along the low water mark with its boundary along the sea coast of the Van Diemen Gulf, the Arafura Sea, and the Gulf of Carpentaria as described more particularly in Compiled Plan 4181. Where there are intersecting rivers, streams and estuaries inland, the grant provides for a straight line to be drawn joining the seaward extremity of each of the opposite banks of the rivers, streams and estuaries, so that the boundary line follows that line at the low water mark at those points across each of those rivers, streams and estuaries.
14 The Land Rights Act defines "Aboriginal land" to mean, inter alia, land held by a Land Trust for an estate in fee simple. Therefore, by virtue of the grant, Arnhem Land (Mainland) became Aboriginal land within the meaning of that Act.
15 Because the grant of Arnhem Land (Mainland) is to the low water mark, there is an intertidal zone which comprises waters which overlie that land on the landward side of the boundaries exposed at low tide ("the tidal waters"). As noted above, where there are rivers, streams and estuaries, the boundaries are drawn by a straight line joining the seaward extremity of each of the opposite banks; the waters in those rivers streams and estuaries which are affected by the tides of the sea even though the beds are not exposed at low tide are called "the non tidal waters". The parties have adopted the definition of the tidal waters and the non tidal waters as "the waters". I shall use that definition.
16 The parties agreed, for the purpose of determining the questions submitted, that the ordinary use of Arnhem Land (Mainland) by the Aboriginals, for whom the Land Trust holds title to the land, includes passing over and through the land and the waters overlying the land and taking fish and other aquatic life from the land and the waters.
17 The Director issues licences to persons which authorise those persons to take fish and other aquatic life in accordance with the Fisheries Act, the Fisheries Regulations and relevant Management Plans. The licences are in categories. Certain licences entitle the licence holder to take a particular species of fish or other aquatic life or prohibit the licence holder from taking a particular species of fish or other aquatic life. Certain licences authorise the use of particular fishing equipment, and in some cases prohibit the use of particular fishing equipment. Some licences prescribe how permissible fishing equipment may be used. Some of those licences, in their terms, authorise the taking of fish and other aquatic life from the waters. Licences generally expire on 30 June in any one-year but are then renewable upon payment of a prescribed fee. The parties also agreed, for the purpose of considering the current questions, that licensees under the Fisheries Act do take fish and other aquatic life under and in accordance with those licences from the waters.
18 The issue now before the Court arises because certain of the licenses issued by the Director authorise fishing in the waters. The Director proposes to continue to issue licences of the type and kind particularised in the schedule to the Agreed Statement of Facts, that is to continue to issue licences which authorise the taking of fish and other aquatic life from the waters under and in accordance with those licences.
19 On the application of the applicants, an order was made pursuant to O 29 r 2 of the Federal Court Rules that certain questions be determined before the trial. Those questions are:
"Is the holder of a licence granted by the First Respondent pursuant to section 10 of the Fisheries Act entitled by virtue of:-(a) that licence and the Fisheries Act or any instrument of a legislative character thereunder; or
(b) any public right,
to:-
1. Take free-swimming fish from:-
1.1 the tidal waters;
1.2 the non-tidal waters;
2. Take sedentary fish or other aquatic life from the land under:-
2.1 the tidal waters;
2.2 the non-tidal waters;
3. Affix nets or other objects to the land under:-
3.1 the tidal waters;
3.2 the non-tidal waters;
or on the adjacent land comprising Aboriginal land the subject of the deed of grant; and
4. Enter by boat or otherwise or float upon:-
4.1 the tidal waters;
4.2 the non-tidal waters;"
for the purposes of taking free swimming fish, sedentary fish or other aquatic life."
20 The fundamental question for decision is whether the grant is sufficient to require third parties, but in particular those licensed by the Director under the Fisheries Act to take fish in the waters, to obtain the permission of the Land Trust or of the Land Council to come into the waters and to take fish from the waters. To look at the issue from another perspective, the question is whether those persons licensed by the Director under the Fisheries Act to take fish from the waters above Arnhem Land (Mainland) may do so notwithstanding the grant.
21 The applicant's contentions are:
(1) The grant gives the Land Trust the estate in fee simple in Arnhem Land (Mainland) to the low water mark, including the right to exclusive possession. By reason of the grant and the terms of the Land Rights Act, there has been a statutory abolition of any public right to fish which may have existed prior to the grant. To the extent that the Fisheries Act may authorise the Director to license persons to enter upon the waters and to take fish from the waters, that Act is inconsistent with the grant under the Land Rights Act.
(2) Before the time of grant, the public right to fish in the waters for commercial purposes had been abrogated by the enactment of the Fisheries Act, or one of its legislative predecessors, and had been replaced with the statutory licensing scheme under the Fisheries Act. The provisions of the Land Rights Act operate with respect to the waters, so that the Northern Territory has no power to grant to the Director power to license persons to enter upon, and to take fish from, the waters; that power can only be exercised with respect to waters of the sea adjoining the land, that is to the seaward side of the boundaries of Arnhem Land (Mainland).
(3) The grant of licenses by the Director under the Fisheries Act permitting persons to enter upon the waters, and to take fish from the waters, detracts from the rights granted to the Land Trust by the grant and from the enjoyment by Aboriginals beneficially interested in the land of those rights because:
(a) such licences confer on licence holders an estate or interest in or in respect of the land, but by the grant the power to confer such estates or interests lies with the Land Trust under the direction of the Land Council, and
(b) the activities carried on by licensees under the Fisheries Act interfere with the ordinary use and enjoyment of the land by the Aboriginals who are its traditional owners or who are interested in the land.
(4) If the common law right of the public to fish in the waters still exists, that right does not extend to the non tidal waters and it does not authorise the use of the land or solum.
22 The applicants do not claim ownership of the waters by reason of the grant. They claim that, by virtue of the grant, they have the exclusive right to determine who may use the waters.
23 The first and second respondents ("the Territory Respondents") assert, in response, that the public right to fish in the waters has not been abrogated by statute, and the Fisheries Act merely regulates the exercise of that right by the licensing system. They dispute that the Land Rights Act, either alone or with other legislation and the grant, discloses an intention to abrogate the public right to fish, or that there is any inconsistency between the Land Rights Act and the Fisheries Act.
24 The Fishing Industry Council adopts the position of the Territory Respondents, save that it also contends, as an alternative, that the rights granted to licensees under the Fisheries Act constitute a form of proprietary interest, and they submit that ss 70(2) and 71(2) of the Land Rights Act recognises or acknowledges that the exercise of that right to enter upon the waters, and to take fish from the waters, may continue to be exercised notwithstanding the grant.
Does the grant have the effect of excluding any public or statutory right to fish in the waters?
25 Counsel for the applicants referred to the recommendation of Justice Woodward in the Aboriginal Land Rights Commission, Second Report, April 1974, that the legitimate interests of Aboriginals in relation to their traditional fishing rights should be protected by the establishment of a buffer zone two kilometres from low tide which cannot legally be entered by commercial fishermen or holiday makers (pars 91, 419-432, and appendix D clauses 12 and 21-22, sch 3 column 1). That recommendation was not, however, directly reflected in the Land Rights Act. Indeed, it appears that s 73(1)(d) of the Land Rights Act was enacted in the light of the legislative consideration of that recommendation. Section 73(1)(d) preserves to the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 (Cth) powers for the making of:
"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;"
That power may be exercised only provided that it is a law capable of operating concurrently with the Land Rights Act: s 74, Land Rights Act.
26 In various reports of Aboriginal Land Commissioners under the Land Rights Act, where there has been a grant of land to a Land trust to the low water mark, it has been remarked that that grant has not affected the common law right of the public to enter upon, and take fish from, the tidal waters above the land: Borroloola Land Claim (No 1) Report, 1979, Toohey J at par 154; Limmen Bight Land Claim Report, 1980, Toohey J at par 144; Alligator Rivers II Land Claim Report, 1981, Toohey J at par 362; Borroloola Land Claim (No 2) Report, 1996, Gray J at pars 6.45 and 6.5.1. In the Borroloola Land Claim (No 1) Report, 1979, Toohey J said at par 154:
"In the course of dealing with these objections Mr Laurie suggested that in order to answer the question whether or not a grant should be made to the low water mark it is necessary to inquire first what rights exist in the owner of land between the high and low water marks and whether rights still remain in the public, even though that land is no longer Crown land. The answer suggested by Mr Laurie, and it is an answer supported by authority, is that at common law the public has a 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 Parliament has restricted the common law right of the public. See 18 Halsbury's Laws of England (4th edn) paras 609-14. If these principles hold good for the sea around the Territory it follows that notwithstanding a grant of land to a Land Trust extending to the low water mark the public would retain the right to fish those waters. I do not think this would extend to placing nets on the bed of the sea between high water mark and low water mark so there would be little consolation for barramundi fishermen."
27 His Honour was responding to the submission that a grant of land extending to the low water mark would create serious detriment to barramundi fishermen, whose fishing is often done between the high water mark and the low water mark, and whose fishing involves placing nets on the bed of the sea between the two. However, it can be seen that Toohey J regarded the grant of land to the low water mark as significantly impeding that activity.
28 Part III of the Aboriginal Land Act 1978 (NT) deals with the control of entry of persons onto seas adjoining Aboriginal land. Section 12 empowers the Administrator, by notice in the Gazette, to close the seas adjoining and within two kilometres of Aboriginal land to any persons or classes of persons other than Aboriginals who are entitled by Aboriginal tradition to enter and use those seas. Once such a notice has been given, s 15 provides for the relevant Land Council (or in certain circumstances the Minister) to grant permits to persons requesting access to those seas. The right of transit of vessels through those seas is preserved by s 20 of that Act.
29 The applicants place reliance upon the fact that s 73(1)(d) of the Land Rights Act, reflected by the exercise of such power in the Aboriginal Land Act 1978 (NT), relates to waters adjoining Aboriginal land. It is said that it does not relate to waters overlying Aboriginal land. In respect of waters adjoining Aboriginal land, it is put that the Northern Territory can exercise powers to regulate fishing, to the extent that such regulation is otherwise capable of operating concurrently with the Land Rights Act: s 74 of the Land Rights Act. The fact that those provisions do not apparently extend to waters overlying the intertidal zone of Aboriginal land is said to be significant.
30 The applicants also place reliance upon the nature of the grant and its purposes. They refer also to the fact that the Land Trust is empowered by s 19(4A) of the Land Rights Act to grant an estate or interest in any part of Arnhem Land (Mainland) for any purpose, and that s 19(11) makes clear that such an estate or interest may include a licence. That power may only be exercised at the direction of the Land Council, and with the written consent of the Minister. I have referred earlier to the provisions of s 23 of the Land Rights Act concerning the functions of the Land Council in relation to the possible grant of such a licence. There are other provisions of the Land Rights Act which were said to touch upon the issue, but I do not regard them as being of particular assistance in relation to this contention.
31 I do not consider that those matters lead to the conclusion that, upon the proper construction of the Land Rights Act, the Northern Territory has no legislative or executive authority to licence persons to enter upon the waters and to take fish from the waters. Nor do I consider that those matters lead to the conclusion that the public right to fish, such as it is, has been abolished in respect of the waters by the grant made by virtue of the Land Rights Act.
32 The grant contemplated by s 4(1) of the Land Rights Act is to be for the benefit of Aboriginals entitled by Aboriginal tradition to use or occupy the land. Section 5(1)(b) does not advance the argument of the applicants, because it merely identifies that one of the functions of the Land Trust is to exercise its powers as owner of the land for the benefit of those Aboriginals. Even though it is assumed, for present purposes, that the ordinary use of the land by those Aboriginals includes passing over and through the land and the waters, and taking fish and other aquatic life from the land and the waters, it does not follow that the grant itself includes the waters or is inconsistent with other fishing rights in the waters. The Court has not been asked to assume that the passage over the waters or the taking of fish from the waters is a practice exclusive of other person's activities in the waters. Nor was it asked to assume that the issuing of licences under the Fisheries Act necessarily interferes with the ordinary use of the land by Aboriginals in passage upon the waters or by them taking fish or other aquatic life from the waters or from the land underlying the waters. Such factual issues were addressed in the context of the Native Title Act 1993 (Cth) ("the Native Title Act") in Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 (Olney J). His Honour's findings of fact were upheld on appeal in Commonwealth of Australia v Yarmirr [1999] FCA 1668 ("Yarmirr") (Beaumont and von Doussa JJ, Merkel J dissenting in part, but not on those particular findings.)
33 In my judgment, s 73(1)(d) of the Land Rights Act is not limited to empowering the Administrator to close the seas for a distance of two kilometres seaward of the low water mark which is one outer boundary of the land. If it did, it could lead to the curious result that the public right to fish in those waters, or the right to fish under licence granted under the Fisheries Act, will have been abrogated and the Land Trust will be authorised to license persons to fish only in those waters, whilst the waters above the intertidal zone could still be the subject of those rights. That curious consequence is said by the applicants to be one which supports their primary contention. However, s 73(1)(d) refers to the control of fishing in "waters of the sea, including waters of the territorial sea of Australia, adjoining ... Aboriginal land ...". The expression "adjoining Aboriginal land" is more sensibly construed to encompass waters of the sea which come into contact with Aboriginal land, whether overlying that land in the intertidal zone or seaward of the low water mark. It is not necessarily restricted to waters of the sea which are seaward of the low water mark. It is inherently unlikely that the legislature intended to create separate regimes for waters of the sea, depending upon whether the tide was in or out. It is also more likely that s 73(1)(d) relates to all waters adjacent to Aboriginal land, whether seaward of it or overlying it, because that provision seems to represent the means by which a buffer zone contemplated by Justice Woodward may be created, rather than prescribing such a buffer zone under the Land Rights Act, to encompass all such waters. It is unlikely that the legislature intended to limit the powers envisaged by s 73(1)(d) to waters of the sea which exclude the waters over the intertidal zone. This is especially so, in light of the fact that the Land Rights Act does not address how the fishing rights of others (whether at common law or by licence) might be affected by a grant of land to the law water mark. It is my view that the legislature would have addressed that question had it intended the waters of the sea in the intertidal zone to be excluded from the operation of s 73(1)(d).
34 In my view, the more sensible construction of s 73(1)(d) of the Land Rights Act is that it was intended to apply to waters of the sea adjoining Aboriginal land, whether by overlying the intertidal zone when the tide is in or by being seaward of the boundaries of the land. It then contemplates one regime for dealing with those waters. It is consistent with the concept of the buffer zone, first proposed by Justice Woodward, although the particular recommendations in that regard were not directly reflected in the Land Rights Act. The distinction between waters of the sea which overlie the intertidal zone and other waters of the sea is an inherently artificial one, bearing in mind the constant movement of those waters by tidal forces and the movement of (some) fish and aquatic life through those waters when they are above the intertidal zone of the land.
35 In the Report by Kearney J as the Aboriginal Land Commissioner on "Closure of the Seas: Castlereagh Bay/Howard Island Region of Arnhem Land" (1988), his Honour reached a view consistent with that conclusion (par 67(c)):
"The Land Rights Act is an Act to provide for the granting of certain land in the Northern Territory to the use or occupation of which certain Aboriginal people are entitled by their traditions. "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."
36 The grant of the land was available because the land had been eligible for such a grant by reason of its inclusion in sch 1 to the Land Rights Act. The land in sch 1 was eligible land for that purpose because it was Crown land: s 4(1), although other Crown land may also become Aboriginal land in other ways. `Crown land' is defined in s 3 to mean land in the Northern Territory. In turn, `land' is defined in s 22(1)(c) of the Acts Interpretation Act 1901 (Cth), unless the contrary intention appears, to be
"messuages tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein."
37 That definition, in my view, does not encompass the waters. There is no particular feature of the Land Rights Act which tends to suggest that some other meaning of `land' was intended. The reservation of mineral rights to be included in any grant under s 12(2) of the Land Rights Act, and the definition of "minerals" to include water, suggests that if the waters had been intended to be included within the grant, some clear and specific indication of that intention would have appeared in the Act. I do not think that any such intention emerges.
38 The same point was made by Toohey J in the Borroloola Land Claim (No 1) Report, 1979, in the following terms (par 156):
"But the Land Rights Act itself speaks on the ownership of water, if only by implication. At p. 251 of the Ranger Inquiry Second Report appears this statement: `A grant to a Land Trust of land does not include "water" (s. 12 (2), s.3(1)). This remains the property of the Crown'. The reference to the two sections of the Land Rights Act arises in this way. Section 12(2) provides in part that a deed of grant made following a recommendation by the Commissioner `shall be expressed to be subject to the reservation that the right to all minerals existing in their natural condition, or in a deposit of waste material obtained from any underground or surface working, on or below the surface of the land, remains with the Crown'. The definition of `minerals' in s.3(1) lists a number of minerals and metals concluding with the words `whether suspended in water or not, and includes water'. If water is to be excluded from a deed of grant it may be thought that some more direct form of words might have been used. And it may be argued that `water' does not include the sea. Whether it is because it does have that wider meaning or because of the principles of common law mentioned earlier a grant of land to the low water mark would not I think preclude the public from fishing those waters."
39 In my judgment, the decision in Yarmirr also supports the conclusion that the grant did not involve granting to the Land Trust an estate in fee simple to the waters (at least whilst they overlie the intertidal zone) or involve a grant which necessarily excludes any public right to fish, or fishing under licence granted by the Director, from persisting or being granted beyond the time of the grant. (I am not, at this point, to be taken as treating fishing under licence necessarily as some entitlement discrete from the public right to fish).
40 Yarmirr involved a claim brought pursuant to s 13(1)(a) of the Native Title Act for a determination of native title to ownership and exclusive possession, occupation, use and enjoyment of an area of the seas, including the sea bed and its resources, in the vicinity of Croker Island in the Northern Territory. There had been a separate grant of land described in sch 1 to the Land Rights Act as Arnhem Land (Islands), again to the low water mark. It was contiguous with the area claimed in Yarmirr. That grant of Arnhem Land (Islands) was expressly excluded from the claimed area in that case. It was therefore one feature of that case to determine whether the waters in the intertidal zone were included in the claim, or were part of the grant of Arnhem Land (Islands).
41 Olney J at first instance upheld the claim in part. His Honour accepted that, under the Native Title Act, native title rights are capable of recognition in relation to offshore seas and waters, and that the claimant group had established traditional use of the waters in the vicinity of Croker Island for hunting, fishing and gathering to provide sustenance, and for other purposes associated with their cultural, ritual and spiritual obligations, beliefs and practices. His Honour further found that those native title rights had not been extinguished by legislation or administrative action of the Commonwealth or the Northern Territory governments. However, the evidence did not show the exercise of exclusive rights to possess, occupy, use and enjoy the waters in the vicinity of Croker Island or of the sea bed. He determined the relevant native title rights and interests of the claimants to be:
(a) to fish, hunt and gather within the waters in the vicinity of Croker Island for the purpose of satisfying their personal, domestic or non-commercial communal needs, including observing traditional, cultural, ritual and spiritual laws and customs; and
(b) to have access to the sea and sea bed within that area to exercise those rights to travel through and within that area, and to visit and protect places within that area which were of cultural or spiritual importance, and to safeguard the cultural and spiritual knowledge of the claimants.
42 The Full Court, by majority (Beaumont and von Doussa JJ) dismissed the appeals of the Commonwealth and of the claimants, essentially for the reasons given by Olney J. Merkel J agreed that the appeal by the Commonwealth should be dismissed, but his Honour would have allowed the claimant's appeal and remitted the matter to Olney J for findings on certain further matters which Merkel J regarded as critical to the proper determination of the claims.
43 The present claim is, of course, made upon a significantly different basis than the claim in Yarmirr. It is not a claim under the Native Title Act, but a claim based upon the grant of an estate in fee simple over Arnhem Land (Mainland) under the Land Rights Act. It is not a claim where the applicants seek to assert native title rights and interests in relation to the waters which existed at the time the Crown acquired a radical title to the several particular parts of Australia, and where it is claimed the common law should recognise those rights and interests in or in relation to the waters: cp. Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 and most recently Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 at 268, 277-278 and 298. It is agreed between the parties, for the purposes of the present consideration, that the ordinary use of the land by Aboriginals for whose benefit the Land Trust holds title includes passing over and through the land and the waters and taking fish and other aquatic life from the land and the waters. There has been no evidence at all in the case.
44 In Yarmirr, the Court held that the definition of "native title" in s 223 of the Native Title Act includes the rights of communal groups or individual Aboriginal peoples in relation to waters or offshore areas. Beaumont and von Doussa JJ (at par 52) said:
"Further, in water where the tides ebb and flow and living creatures move from place to place, notions of occupation and possession are difficult to apply."
45 Olney J at first instance (at 546) addressed the question whether waters of the intertidal zone might be the subject of a claim for native title under the Native Title Act. The land of the intertidal zone was excluded from the claim. His Honour concluded (at 546) after referring to the definition of "waters" in s 253 of the Native Title Act
"On a literal application of the definition a claim in relation to `waters' would relate to either the sea etc or to the sea-bed etc but not both. It may be because of this perceived problem that the application expressly refers to the `seas and sea-beds' in the defined area. If it is legitimate to treat the sea-bed separately from the sea which covers it, (and the definition suggests that it is) then it would appear to be open to claim a determination in respect of the sea of the intertidal zone of the islands without making a similar claim in respect of the sea-bed of that zone (that is the land of the intertidal zone when it is covered by the sea). The application as originally framed, in seeking a determination in relation to all of the sea within the claimed area, extends to the waters of the intertidal zone."
46 Beaumont and von Doussa JJ agreed with that conclusion (par 203). Thus, the Court in Yarmirr treated the waters in the intertidal zone as within the waters the subject of the claim, but excluded them from the sea bed or foreshore in the intertidal zone. It is evident from that conclusion that the Court in Yarmirr did not consider that the waters in the intertidal zone were the subject of the grant of Arnhem Land (Islands) or that the grant of Arnhem Land (Islands) to the low water mark gave to the Land Trust in question the exclusive right to control who may fish in the waters overlying the land between the high water mark and the low water mark.
47 There is no reason to think that those considerations do not apply with equal force to the grant of Arnhem Land (Mainland) in the present circumstances.
Fishing rights in the waters
48 The common law principles with respect to the public right to fish in tidal waters were, as Beaumont and von Doussa JJ pointed out in Yarmirr at par 205ff, authoritatively considered by the High Court in Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 ("Harper"). The judgment of Brennan J in Harper received the general agreement of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ. The public right to fish, as received as part of the common law in Australia (see Yanner, per Gleeson CJ, Gaudron, Kirby and Hayne JJ at 267, and Beaumont and von Doussa JJ in Yarmirr at par 212), may not be removed except by competent legislation: per Brennan J in Harper at 329. His Honour said at 329-330:
"[These] were tidal waters. Accordingly, the right of the owner of the soil over which the waters flow (whether the owner be the Crown or not) to enjoy the exclusive right of fishing in those waters or to grant such a right to another as a profit à prendre is qualified by the paramount right to fish vested in the public ... In Malcomson v O'Dea, it was held that, after Magna Charta, the Crown, in whom the title to the bed of tidal navigable rivers was vested, was precluded from granting a private right of fishery, the right of fishery being in the public. The law so stated was followed in Neill v. Duke of Devonshire. And in Lord Fitzhardinge v. Purcell, although Parker J. held that the Crown might grant title to the bed of the sea or of a tidal navigable river to a subject, his Lordship held that no such grant can operate to the detriment of the public right of fishing. The existence of a public right to fish in tidal waters was accepted by Stephen and Jacobs JJ. in [New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337]."
49 In Harper, it was held that a fee imposed by a regulation of the Sea Fisheries Regulations 1962 (Tas) under the Fisheries Act 1959 (Tas) was not a tax, and so did not impose a duty of excise. The regulation prohibited the taking of abalone without a licence. The licensing regime amounted to a statutory abrogation of the public right of fishing for abalone in fishing waters in Tasmania. In lieu of that public right, private statutory rights to take abalone in limited quantities were granted. Brennan J said at 332:
"The public right of fishing for abalone in State fishing waters is thus abrogated and private statutory rights to take abalone in limited quantities are conferred on the holders of commercial and non-commercial abalone licences. The Regulations thus control the exploitation of a finite resource in order to preserve its existence. They seek to achieve this end by imposing a general prohibition on exploitation followed by the grant of licences for the taking of limited quantities of abalone."
50 His Honour at 334-335 explained then that those who are licensees enjoy a right similar to the common of piscary. The common law right is a profit à prendre, but is not available in tidal waters: Halsbury's Laws of England, 4th ed, Vol 6, p 237, pars 581,582. Such statutory rights conferring a licence to exploit a resource to a limited extent
"... confer on those licensees a privilege analogous to a profit à prendre in or over the property of another." (at 335)
Mason CJ, Deane and Gaudron JJ (at 325) added:
"This privilege can be compared to a profit à prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content."
51 Olney J also explained the nature of the public right to fish at first instance in Yarmirr at 593, where his Honour referred to the judgment of Burchett in Minister for Primary Industries and Energy v Davey (1993) 47 FCR 151 at 168. Olney J concluded at 593 that the common law would be unable to recognise a claimed native title right that would contradict the public right to fish, referring to his Honour's earlier reasons at 590-593. His Honour's conclusion was upheld by Beaumont and von Doussa JJ at par 239.
52 In my judgment, those decisions must lead to the conclusion that, unless the public right to fish has been abrogated by statute, relevantly the Fisheries Act or its predecessors, that right persists in respect of the waters.
53 As noted earlier, although the applicants have referred to the agreed fact that the ordinary use of the land by Aboriginals for whom the Land Trust holds title to the land includes passing over and through the land and the waters and taking fish and other aquatic life from the land and the waters, that composite fact does not lead to any different view. The authorities referred to are to the contrary. Furthermore, that assumed composite fact does not amount to an exclusive right to occupy or take fish from the waters. Nor does it indicate that the exercise of public rights of fishing are necessarily inconsistent with the exercise by those Aboriginals of their ordinary usage of the land and the waters (cp. Olney J in Yarmirr at 593-594).
54 The history of the regulation of fishing in the Northern Territory is set out by Olney J in Yarmirr at 594-598. I adopt what his Honour there said. I shall not repeat it.
55 The significance of that legislative history, culminating for present purposes in the Fisheries Act, is whether the legislation demonstrates that the common law right to fish has been extinguished, and has been replaced by private statutory rights. If so, the question which then falls to be decided is whether those private statutory rights can exist in relation to the waters, or whether their grant by the Director is beyond the power of the Northern Territory by reason of provisions of the Land Rights Act and the grant. The answer to that question may depend upon whether the rights granted by licences under the Fisheries Act involve the grant of proprietary rights.
56 The applicants and the Fishing Industry Council were largely at one in the contention that the issuing of licences under the Fisheries Act involves the conferring of some form of proprietary rights on licence holders, or alternatively rights analogous to a profit à prendre. It was submitted that a licence granted under the Fisheries Act to enter upon the waters and to take fish from the waters is an estate or interest in land.
57 The applicants seek to argue, from the nature of those rights, that such rights would detract from rights of the Land Trust to grant estates or interests in the land, including licences, and would interfere with the ordinary use of the land by the Aboriginals beneficially interested in the land. They submit that the granting of such rights must be beyond the legislative competence of the Northern Territory. The Fishing Industry Council submits that such rights, by virtue of being estates or interests in Aboriginal land, are expressly preserved by s 70(2) and 71(2) of the Land Rights Act.
58 Section 10(1) of the Fisheries Act relevantly provides that, subject to that Act or an instrument of a legislative or administrative character made under it, a person shall not take any fish or aquatic life. Section 10(2) provides that nothing in the section applies to the taking of fish or aquatic life by a person for subsistence or personal use only within prescribed limits as to numbers, sizes, periods and the like. The Fisheries Regulations prohibit the taking of certain species of fish if greater than a certain length (reg 10) or species which are protected species under the Territory Parks and Wildlife Conservation Act (NT).
59 The parties treated the line drawn by s 10(2) as between commercial fishing and non-commercial fishing. It is convenient to adopt that description.
60 The Fisheries Act then prescribes a detailed licensing system for commercial fishing. Generally, a licence may be granted for up to five years: s 11(7), provided the licensee applicant meets the conditions of eligibility for the particular licence sought. Licenses may be renewed: s 12. Licenses may be transferred, in the absolute discretion of the Director: ss 12A and 12B. Vessels to be used by licensees must also be registered: ss 18 and 19. Licences and registrations may be cancelled in certain limited circumstances: s 20. There is provision for internal review by the Director of decisions of delegates of the Director, and then for judicial review of decisions of the Director regarding the granting or refusal of licensees or registrations, or their cancellation: ss 11A and 50.
61 Part III of the Fisheries Act provides for the introduction of Fisheries Management Plans to conserve, enhance, protect, utilise and manage the fish and aquatic resources of the Northern Territory. Such plans may prohibit the taking of fish or aquatic life in all or part of a fishery management area. Management plans have effect as regulations under the Fisheries Act: s 27.
62 The Minister also has power, where a management plan does not operate, to prohibit or control the taking of fish by reference to size, species, period etc and the nature of fishing gear which may be used in relation to the taking of fish or other aquatic life.
63 Regulations under the Fisheries Act, as might be expected, deal in detail with all such matters. The Fisheries Regulations, for example, prescribe which licences are transferable, and upon what terms particular licences may be transferred.
64 There are also features of the Fisheries Act and the Fisheries Regulations which deal with the taking of fish previously beyond the reach of the public right to fish. The applicant identified licences which extend into waters beyond tidal waters: aquarium fishing Licence Category A12 and fishing tour operator Licence Category D2; the use of the foreshore for storage of nets and other fishing gear by regs 31(2)(b) and 33(1)(b) and (c); the affixing of nets and other structures to land adjacent to or underlying waters by reg 41(c), by the Barramundi Fishery Management Plan cl 16 and by the Mud Crab Fishery Management Plan cl 11; and the taking of sedentary fish such as mollusc and pearl oyster by licence categories A9 and A10 respectively. It is not necessary to determine whether or not each of those features is encompassed within the public right to fish: see eg. Anderson v Alnwick District Council [1993] 3 All ER 613 at 621 and Blundell v Catterall (1821) 5 B & Ald 268 regarding necessary use of the foreshore. Some of those features are not within the public right to fish: Attorney General for British Columbia v Attorney General for Canada [1914] AC 153 at 171 ("Attorney General for British Columbia v Attorney General for Canada") and Attorney General v Emerson [1891] AC 649 at 656 indicate that nets and other structures may not be affixed to the soil for the purpose of exercising the public right to fish.
65 In Yarmirr, Olney J at 598-599 indicated that the relevance of the history of legislative and administrative regulation of fishing
"... must be judged in the context first of the common law recognition of the public right to fish and in relation to the nature and extent of the native title rights and interests of the claimants as established by the evidence. Ultimately, the question that must be asked is whether the legislative and administrative acts display a clear and plain intention to extinguish such rights as the common law recognises which the applicants have shown to be of the rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the Croker Island community in relation to the waters of the claimed area by which laws and customs they have a connection with those waters."
His Honour concluded at 599:
"Nothing about the history of the legislative and administrative control of fishing in relation to the claimed area is indicative of an intention to extinguish a non-exclusive, non-commercial native title nor to create inconsistent third party rights. The native title rights which have been established by the evidence are capable of co-existence with the regulatory systems that have applied, and continue to apply, in the claimed area."
66 That conclusion was made in relation to the submission that such native title rights as the claimants may have enjoyed to fish in the claimed area at the time the Crown assumed its radical title had been extinguished by that legislative and administrative action by the time of the claim. His Honour was not specifically addressing the question whether the public right to fish had been abrogated by that legislative action so that such fishing rights as existed by licences granted under the Fisheries Act were now a form of statutory rights granted by the Northern Territory.
67 As Brennan J pointed out in Harper (at 330) the public right of fishing in tidal waters is not limited by the need to preserve the capacity of the fishery to sustain itself. His Honour added:
"The management of a fishery to prevent its depletion by the public must be provided for, if at all, by statute."
68 In Harper that statutory or regulatory provision was, with respect to abalone fishing, done by imposing a general prohibition on exploitation followed by the grant of licences for the taking of limited quantities of abalone.
69 The line between regulation and abrogation may be an artificially thin one. By regulating the public right to fish, it may be possible to achieve a means of control of that public right to much the same effect as if the public right to fish were entirely abrogated, and substituted by a statutory scheme of licensing rights. It is also evident that the public right to fish may be abrogated with respect to a particular species of fish. The applicants contend that that right, if it exists at all with respect to the waters, has been abrogated with respect to commercial fishing.
70 In my judgment, the public right to fish has not been abrogated by the Fisheries Act. Section 10(2) preserves that right, albeit limiting its scope to fishing for particular purposes, namely for subsistence or personal use. That entitlement is preserved for all persons, and in respect of all species of fish and aquatic life. It is preserved, in particular, for those who seek a licence for a form of commercial fishing under that Act. A licensed person is permitted by the licence to extend fishing activities, subject to the terms of the licence, beyond fishing for sustenance or for personal use but does not require that licence for fishing for sustenance or for personal use. It was the feature of total prohibition, and the replacement of the public right to fish with the species of statutory rights, which led to the conclusion in Harper to which I have referred. Under the Fisheries Act, licenses in respect of certain species of fish do not grant the right to catch that species of fish, but regulate the existing right by restricting that right in a manner complementary to s 10(2) by regulating the numbers, sizes, or periods when such species of fish or other aquatic life may be taken, or how that species may be taken, and related matters. The Fisheries Act, the Fisheries Regulations, and the Fisheries Management Plans under the Act, are directed, at least substantially, to regulating the public right to fish to preserve fisheries resources from depletion.
71 The parties argued that question by reference only to the Fisheries Act. No doubt that is because that Act contains the most detailed regulatory prescription with respect to the public right to fish. I have, in addition, considered the earlier legislative regimes which applied in the Northern Territory to determine whether any of those legislative regimes may have abrogated the public right to fish either generally, or in any particular respect relevant to these proceedings. The public right to fish, if abrogated, might be said to have gone forever so that its apparent reincarnation (for example under s 10(2) of the Fisheries Act) might constitute in those circumstances a statutory enactment of some equivalent but different right. My consideration of that earlier legislation does not reveal that it had features such as to amount to the abrogation of the public right to fish. In a less detailed way than the Fisheries Act, that earlier legislation also in my judgment amounts to no more than regulation of the public right to fish. From the Fisheries Act 1904 (SA), all that legislation operated in respect of taking fish for commercial purposes, and did not prohibit the public from fishing at all. It is therefore unnecessary to address the question whether the public right to fish, once abrogated, may be restored by later legislation or whether later legislative restoration of what may appear as the public right to fish is instead some statutory form of the public right to fish.
72 In the light of that conclusion, it follows that I do not consider that the rights or privileges granted to licence holders under the Fisheries Act amount to some form of rights or interests in the land in the nature of a profit à prendre. I indicate, however, that even if the Fisheries Act does abolish the public right to fish in respect of commercial fishing, I would not conclude that the entitlements of a licence holder constitute, or may constitute under some licences, an estate or interest in Aboriginal land. I would adopt the characterisation of Mason CJ, Deane and Gaudron JJ in Harper at 325 as "an entitlement of a new kind" like a profit à prendre, but a discrete statutory entitlement. In Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567, Burchett J at 585 in addressing the Fisheries Act 1952 (Cth) said:
"... the right is not a common law right, but rather a new species of statutory entitlement, the nature and extent of which depends entirely on the terms of the legislation....
Thus, the fact that the holder of the boat licence, on one view, might have a privilege comparable to a profit à prendre, does not mean that he or she has an entitlement based on antecedent proprietary rights recognised by the general law."
73 Earlier in these reasons, I indicated that I do not consider that the continued existence of the public right to fish in the waters is inconsistent with the grant. This is so either because the grant included a grant of title to control the use of the waters or because the interests in the land which were the subject of the grant, and the Land Rights Act, impliedly abrogated such public rights or statutory rights to fish as then existed in the waters. I observe, in that regard, that s 53 of the Fisheries Act makes provision for the continuing exercise of fishing by Aboriginals in accordance with Aboriginal traditional use.
74 If it transpires that there is some entitlement of a particular fishing licence granted under the Fisheries Act which permits some activity inconsistent with the grant, and with the Land Rights Act, then the Fisheries Act would have to be read down so that it is not inconsistent with the Land Rights Act and the grant: s 59, Interpretation Act (NT).
The extent of fishing rights in the waters
75 The public right to fish extends to the mean high water mark of ordinary tides and "so far up river as the tide in the ordinary course of things flows and reflows": Halsbury's Laws of England, 4th ed, Vol 18, par 612. In Attorney General for British Columbia v Attorney General for Canada, the Privy Council said at 171 (in a passage adopted by Brennan J in the course of his Honour's reasons)
"In the tidal waters, whether on the foreshore or in creeks, estuaries, and tidal rivers, the public have the right to fish, and by reason of the provisions of Magna Charta no restriction can be put upon that right of the public by an exercise of the prerogative in the form of a grant or otherwise."
76 The Board was using the expression `tidal waters' to distinguish such waters from waters where there is no tidal influence. As I have used the terms "tidal waters" and "non tidal waters" as adopted by the parties (see par 15 above), and their usage in that way is different from the usage of the term "tidal waters" in the authorities, I include the parties' definitions to indicate clearly that difference. Those definitions are:
""the non-tidal waters" means the waters landward of a straight line joining the seaward extremity of each of the opposite banks of each of the rivers, streams and estuaries ... the beds of which are not exposed on any tide but which waters are otherwise affected by the tides of the sea;"the tidal waters" means the waters overlying land on the landward side of the boundaries ... which is exposed at low tide (not being non-tidal waters as defined);"
77 The definition of "tidal waters" adopted by the parties clearly falls within waters in which there may be a public right to fish. The definition of "non tidal waters" adopted by the parties is said by the respondents also to fall clearly within the expression `tidal waters' as used in the authorities to indicate the extent of the public right to fish, because it is agreed that they are waters affected by the tide in rivers, streams and estuaries. The applicants dispute that those waters are necessarily subject to the public right to fish. At least to the line of the mean high water mark, they will clearly do so. It is ultimately a question of fact whether the "non tidal waters" are subject to a real perceptible and sufficient ebb and flow of the tide as to amount to the waters being within those waters in which there may be a public right to fish: Ingram v Percival [1969] 1 QB 548 at 554-555.
78 During submissions the applicants asserted that there is no agreement between the parties on that matter of fact. It would be inappropriate to decide this matter by reference to agreed facts, where there is apparently some ambiguity in what has been agreed. However, the conclusion I have reached does not require me to interpret the agreed facts to resolve that apparent misunderstanding in any event.
79 The Crown has, by the grant, alienated title in the bed of rivers, streams and estuaries above their mouths as fixed by a line across the low water mark of their extremities. I have concluded that, notwithstanding the grant, the public right to fish in the waters was not intended to be, and has not been, abolished in respect of the tidal waters (as defined by the parties). It does not necessarily follow that the grant under the Land Rights Act did not amount to the implied abolition of the public right to fish in the waters of rivers, streams and estuaries, at least beyond a line which represents a line drawn from the landward edge of the intertidal zone on the foreshore at the edges of rivers, streams and estuaries across the mouths of rivers, streams and estuaries. At least to that point, the non tidal waters (as defined by the parties) would be affected by a perceptible and sufficient ebb and flow of the tide to merit the description `tidal waters' as traditionally used, for instance by the Privy Council in Attorney General for British Columbia v Attorney General for Canada.
80 In my judgment, the Land Rights Act and the grant do have the effect of impliedly abolishing the public right to fish above the high water mark line (to use a shorthand description). The nature of the grant, and the statutory provisions which relate to it, point to that conclusion. The fundamental feature of the grant is to provide that the Land Trust hold and exercise its rights over the land for the benefit of the Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned. The use of the land, it is argued, includes the use of the overlying waters. The Land Trust is empowered, in certain circumstances, to grant an estate or interest in respect of the land, or parts of it, to others: ss 19(4A) and (11) and 23(1)(e) and (4). Section 70 precludes persons from entering upon Aboriginal land except to the extent permitted by s 70(2) to enjoy an estate or interest in Aboriginal land. The powers of the Northern Territory to enact reciprocal legislation in s 73 are also limited by reference to the interests of Aboriginals who use land in accordance with Aboriginal traditions. In my view, the objectives of the Land Rights Act and those provisions indicate that the rights of exclusive possession and use of the land was contemplated to remove from the public the rights to take fish and other aquatic life landward of the high water mark line. If that were not so, the public right to fish could be exercised in respect of the non tidal waters (using the parties' definition), that is the waters in rivers, streams and estuaries affected by tidal waters, a considerable distance inland of the boundaries of the land and of the high water mark line.
81 In addition, as I remarked earlier in these reasons, the concept of the buffer zone discussed by Justice Woodward has found its expression in the reservation of powers to the Northern Territory in s 73 of the Land Rights Act. As previously noted, the Northern Territory has powers to regulate or prohibit the entry of persons into, and controlling fishing or other activities in, waters of the sea adjoining and within two kilometres of Aboriginal land. Tidal waters (as defined by the parties) readily fall within the expression waters of the sea. Where waters of the sea flow inland with the tide, depending upon the season and the prevailing conditions, those waters may account for a relatively small proportion of the waters of the particular river stream or estuary at a particular time. At other times, the effect of the waters of the sea driven inland by the tide may be very much greater. The variation of those circumstances is itself a reason why it is likely to have been intended that waters landward of the high water mark line were not intended to remain susceptible of the exercise of the public right to fish. So too is the fact that the line in respect of which the legislative exercise of powers under s 73(1)(d) of the Land Rights Act may be exercised, if the respondents be correct, will be one involving substantial geographical indentations to accommodate the inland movement of waters of the sea into rivers, streams and estuaries. The buffer zone which was first contemplated, and is reflected in s 73 (1)(d), is more likely to have been intended to operate by reference to the high water mark line.
82 In Attorney General for British Columbia v Attorney General for Canada the Privy Council at 167 explained the general principle with respect to fishing rights as being that fisheries are in their nature mere profits of the soil over which the water flows, so that the title to a fishery arises from the right to the solum. If a fishery is severed from the solum, it becomes a profit à prendre in alieno solo. The Privy Council also pointed out that that principle extended to owners of lands on the foreshore or within estuaries where the tide flows and reflows, whether owned by the Crown or by an individual. Of course, since Magna Carta, that right in respect of tidal waters on the foreshore or in rivers, streams and estuaries has not been able to be removed other than by the exercise of legislative power. In my view, in respect of the waters in rivers, streams and estuaries above the high water mark line, the Land Rights Act has removed that right so that the Land Trust, subject to the Land Rights Act, may grant interests in the nature of fishing rights in respect of those waters by reason of its ownership of the solum effected by the grant.
83 The Legislative Assembly of the Northern Territory does not have power under the Fisheries Act to authorise actions which:
"... affect the operation of a law of the Commonwealth or to destroy or detract from a right thereby conferred unless a law of the Commonwealth so provides, expressly or by implication".
See R v Kearney; ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 per Brennan J at 418. His Honour added at 419:
"By whomsoever the Crown Lands Act power to grant an estate in fee simple in Crown lands was or is exercisable, it could not be exercised to destroy the statutory right conferred upon applicants in respect of land under claim unless a law of the Commonwealth so provides. There is no law of the Commonwealth which does so provide."
84 At 420, his Honour stressed that the Land Rights Act, as a law of the Commonwealth, must be given its full operation before the scope of a power created by a law of the Northern Territory or the consequences of its exercise can be ascertained. The express reservation of such power by s 73(1) of the Land Rights Act only extends so far as it is capable of operating concurrently with the Land Rights Act: s 74. For the reasons I have given, in my judgment, the geographical extent to which that power may be exercised in respect of the grant only extends in respect of waters of the sea to the high water line mark. The provisions of the Fisheries Act must be read in that light. The licences granted by the Director under the Fisheries Act cannot, and do not, authorise licensees to engage in the activities which the licence otherwise permits in rivers, streams and estuaries landward of that line. Members of the public no longer have the right to fish in rivers, streams and estuaries landward of that line. That right has, to that extent, been abrogated by the Land Rights Act and the grant made under it.
85 There remains the question of whether, in respect of the tidal waters (as defined by the parties) and the non tidal waters (also as defined by the parties) to the high water mark line, there are activities which the licences permit and which do not fall within the exercise of the public right to fish. I shall use the expression "the waters in the intertidal zone" as a shorthand means of describing those waters in the balance of these reasons. If so, the question will arise as to whether those activities may nevertheless be authorised by the Fisheries Act notwithstanding the grant.
86 Various categories of licence under the Fisheries Act authorise the taking of free swimming fish in the waters of the intertidal zone. In light of the reasons expressed above, in my judgment such activities fall within the exercise of the public right to fish in those waters, as regulated by the Fisheries Act and the instruments made under it.
87 Certain categories of licence under the Fisheries Act authorise the taking of sedentary fish and other aquatic life from the land under the waters of the intertidal zone. I note that mud crab fishing, controlled by the Mud Crab Fishery Management Plan, falls within that category but is confined to waters of the intertidal zone (cl 8(3)); it does not extend to the non tidal waters (as defined by the parties). The public right to fish extends to shell fish, which are not considered part of the solum: Goodman v Mayor of Saltash (1882) 7 App Cas 633 at 646; Halsbury's Laws of England, 4th ed, Vol 18, par 613. There may be some species of aquatic life which have such a close connection to the solum that they form part of the solum, and so fall within the ownership of the proprietor of that solum: Parker v Lord Advocate [1904] AC 364 at 377; Anderson v Alnwick District Council [1993] 3 All ER 613 at 622-623. Those two cases illustrate that the line to be drawn is a fine one: apparently fishing for lobsters, crabs, prawns, shrimps and oysters and the taking of worms for bait by digging in the sands of the foreshore is within the public right to fish, but the taking of mussels attached to rocks of the shore may not be. The agreed facts do not contain material upon which a finding can be made that the taking of a particular form of aquatic life in the exercise of the public right to fish as regulated by licence includes taking aquatic life so attached to the solum that it forms part of it so that it is not aquatic life which may be taken in exercise of the public right to fish. I propose to answer question two to reflect that distinction, but without reference to particular licences under the Fisheries Act.
88 Licences to take barramundi under the Barramundi Fishery Management Plan and to take mud crabs under the Mud Crab Fishery Management Plan appear to permit the affixing of nets or other objects to the solum for the purposes of fishing. Halsbury's Laws of England, 4th ed, Vol 18, par 613 at 260 states:
"The public right of fishing must be exercised reasonably and in accordance with the statute law. The public has no right to fish by kiddles, weirs or other engines fixed in the soil, for such methods involve a use of the soil which cannot be vested in the public but must belong either to the Crown or to some private owner. The public may, however, lay lines, draw nets and adopt any other ordinary mode of fishing. The public may take shellfish, even though they were laid down by some other fisherman. No member of the public as such may assert a right to the exclusive possession of part of the foreshore for storing shellfish as an incident of his right to fish."
89 The distinction to be drawn is between objects which are or become affixed to the soil so that they involve a proprietary use of the solum which must belong to the Crown or to some private owner, and those objects the use of which does not involve the exercise of some form of estate or interest in the solum: see Attorney General for British Columbia v Attorney General for Canada at 171. The element of permanence was given significance also in Attorney General v Emerson [1891] AC 649 per Lord Herschell at 656.
90 In my view, those authorities support the conclusion that the temporary affixing of nets to the solum underlying the intertidal waters is an activity which falls within the reasonable exercise of the public right to fish, as that activity does not involve the assertion of an estate or interest in the solum.
91 In the Borroloola Land Claim (No 1) Report, 1979, Toohey J in the passage referred to above (par 10) expressed the view that such activities would however be inconsistent with the right of ownership of the land to the low water mark affected by the grant. Both the applicants and the Territory respondents have submitted that it is not appropriate to decide the question whether the temporary affixing of nets to the land under the waters in the intertidal zone is an activity permitted by the public right to fish but one inconsistent with the grant. The Territory respondents further submitted that the facts necessary to decide that issue have not been agreed, and are not otherwise before the Court. In those circumstances, the answer to question three will be qualified by the reservation of that issue. I observe that the public right of navigation in the ordinary course also carries with it the right to drop anchor: Halsbury's Laws of England, 4th ed, Vol 18, par 604. The exercise of that public right may also involve a similar question.
92 The fourth question, in my view, is straightforward. It was not a matter which much occupied the submissions of the parties. In my view, the public right to fish must carry with it a right of passage upon the waters in the intertidal zone for the purposes of fishing: Halsbury's Laws of England, 4th ed, Vol 18, par 614; Blundell v Catterall (1821) 5 B & Ald 268; Brinckman v Matley [1904] 2 Ch 313 at 316.
Provisional Answers to Questions
93 I propose to give the parties the opportunity to consider these reasons before formally answering the questions identified. I propose, however, to express the following provisional answers to those questions for the parties consideration:
Question 1.1(a) and (b):
Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act.
Question 1.2(a) and (b):
Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act, but only to the seaward side of the straight line drawn from the mean high water mark joining the mouths of all intersecting rivers, streams and estuaries at the nearest point of each of the opposite banks of each of those rivers, streams and estuaries too the mean high water mark line along the foreshore (the intertidal zone waters).
Question 2.1(a) and (b):
Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act, but excluding aquatic life which has such a close connection to the land underlying the tidal waters that it forms part of that land.
Question 2.2(a) and (b):
Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act, but only in the intertidal zone waters, and excluding aquatic life which has such a close connection to the land underlying the intertidal zone waters that it forms part of the land.
Question 3.1(a) and (b)
Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act, providing that the affixing of such nets or other objects is temporary and subject to the question whether the exercise of such activities or of any such activity is inconsistent with the Land Rights Act or with the grant.
Question 3.2(a) and (b)
Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act, but only in the intertidal zone waters, providing that the affixing of such nets or other objects is temporary and subject to the question whether the exercise of such activities or of any such activity is inconsistent with the Land Rights Act or with the grant.
Question 4.1
Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act.
Question 4.2
Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act, but only in the intertidal zone waters.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield. |
Associate:
Dated: 24 February 2000
Counsel for the Applicants: |
Mr J Basten QC and Mr S Glacken |
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Solicitors for the Applicants: |
Brett I Midena |
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Counsel for the First and Second Respondents: |
Mr T Pauling QC Solicitor General for the Northern Territory, and Ms R Webb Solicitor for the Northern Territory |
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Counsel for the Third Respondent |
Mr G Hiley QC |
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Solicitors for the Third Respondent |
Cridlands |
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Dates of Hearing: |
1 - 3 February 1999 |
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Date of Decision: |
24 February 2000 |
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