Gumana v Northern Territory
[2005] FCA 50
•7 FEBRUARY 2005
FEDERAL COURT OF AUSTRALIA
Gumana v Northern Territory of Australia [2005] FCA 50
ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 (CTH) – whether grant of fee simple “to low water mark” subject to public rights to fish or navigate – whether land grant limited to solid land – whether Fisheries Act 1988 (NT) can validly apply to inter-tidal zone – [51]–[93]
CONSTITUTIONAL LAW – Northern Territory – whether powers of Northern Territory Parliament to legislate within two kilometres of land grant limited by s 73 of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – [98]–[114] – whether Fisheries Act 1988 (NT) meets requirements of s 73 – [115]–[117]
NATIVE TITLE ACT – nature of determination of native title – “Translation” of indigenous right to statutory right in rem – [119]–[142] – right of exclusive possession – whether single right or “bundle of rights” – [235]–[240] – “non-recognition” at common law – public rights to fish and navigate – sacred sites – [242]–[244]
NATIVE TITLE ACT – effect of s 47A where “non-recognition” – [248]–[263] – constitutional validity of s 47A – [264]–[270]
EVIDENCE – evidence of custom – as evidence of fact – not opinion evidence or hearsay evidence – [152]–[162] – inference that custom existed since date of settlement – [196]–[202] – problems with anthropological evidence – [163]–166] – use of written statements in native title cases – [180]–[184]
Aboriginal Councils and Associations Act 1976 (Cth)
Aboriginal Land Act 1978 (NT)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Aboriginal Land Rights (Northern Territory) Act, 1976 (Cth)
Aboriginal Ordinance 1918 (NT)
Coastal Waters (Northern Territory Powers) Act 1980 (Cth)
Coastal Waters (Northern Territory Title) Act, 1980 (Cth)
Commonwealth Constitution
Control of Waters Act (NT)
Crown Lands Consolidation Act 1882 (SA)
Darwin Port Corporation Act (NT)
Evidence Act 1995 (Cth)
Fisheries Act 1988 (NT)
Interpretation Act (NT)
Judiciary Act 1903 (Cth)
Native Title Act 1993 (Cth)
Northern Territory (Administration) Act 1910 (Cth)
Northern Territory (Self Government) Act, 1978 (Cth)
Northern Territory (Self Government) Regulations 1978 (Cth)
Northern Territory Aboriginal Sacred Sites Act (NT)
Northern Territory Acceptance Act 1910 (Cth)
Northern Territory Crown Lands Act 1890 (SA)
Northern Territory Land Act 1899 (SA)
Northern Territory Surrender Act 1907 (SA)
Seas and Submerged Land Act, 1973 (Cth)
Self Government Act (Act No 58 of 1978)
Telecommunications Act 1997 (Cth)Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
Aboriginal Ordinance 1918 (NT)
Crown Lands Ordinance 1927
Interpretation Ordinance 1931 (NT)
Mining (Gove Peninsula Nabalco Agreement) Ordinance
Ports Ordinance 1962 (NT)
Social Welfare Ordinance 1964 (NT)
Welfare Ordinance 1953 (NT)A Raptis & Sons v South Australia (1977) 138 CLR 346
AG (British Columbia) v AG (Canada) [1914] AC 153
AG (NT) v Maurice (1986) 161 CLR 475
AG v Ngati Apa [2003] 3 NZLR 643
AG v Schmidt (1961) 105 CLR 361
AG v Swan (1921) 21 SR (NSW) 408
Allnutt v Inglis (1810) 12 East 527
Anderson v Alnwich DC [1993] 1 WLR 1156
Arnhem Land Aboriginal Land Trust v Director of Fisheries NT (2000) 170 ALR 1
Attorney-General (NT) v Ward (2003) 134 FCR 16
Auckland CC v Ports of Auckland Ltd [2000] 3 NZLR 614
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Bienke v Minister for Primary Industries (1996) 63 FCR 567
Blundell v Catterall (1821) 5 B & Ald 268; 106 ER 1190
Bolt v Sennett (1800) 8 TR 606
Bourke v State Bank of NSW (1990) 170 CLR 276
Brinckman v Matley [1904] 2 Ch 313
Bropho v Western Australia (1990) 171 CLR 1
Burrum Corporation v Richardson & Gehmann (1939) 62 CLR 214
Butler v AG (Vic) (1961) 106 CLR 268
Byrnes v The Queen (1999) 199 CLR 1
Chad v Tilsed (1821) 2 Brod & B 403
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
City of Rockingham v Curley [2000] WASCA 202
Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254
Commonwealth v New South Wales (1923) 33 CLR 1
Commonwealth v Yarmirr (1999) 101 FCR 171
Commonwealth v Yarmirr (2001) 208 CLR 1
Croome v Tasmania (1997) 191 CLR 119
Crown Estate Commissioners v Fairlie Yachts [1979] SC 156
Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520
Daniel v Western Australia (2004) 208 ALR 51
De Rose v State of South Australia [2002] FCA 1342
De Rose v South Australia (2003) 133 FCR 325
Delgamuukw v British Columbia (1997) 153 DLR (4th) 193
Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488
Donaghy v Wentworth AreaHealth Service [2003] NSWSC 533
Fejo v Northern Territory (1998) 195 CLR 96
Georgeski v Owners Corporation SP49833 [2004] NSWC 1096
Gerhardy v Brown (1985) 159 CLR 70
Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199
Goodman v Mayor of Saltash (1882) 7 AC 633
Goodman v Saltash Corporation (1882) 7 App Cas 633
Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513
Hammerton v Honey (1876) 24 WR 603
Harper v Minister of Sea Fisheries (1989) 168 CLR 314
Hayes v Northern Territory (1999) 97 FCR 32
Hill v Smith (1809) 10 East 475
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59
Illinois Central Railroad Co v Illinois 146 US 387 (1892)
Jango v Northern Territory (No 2) [2004] FCA 1004
Jango vNorthern Territory (No 4) [2004] FCA 1539
Jones v Public Trustee (Qld) (2004) 209 ALR 106
Lange v Australian Broadcasting Commission (1997) 189 CLR 520
Lansen v Northern Territory (2004) 211 ALR 365
Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd (1966) 115 CLR 342
Lardil Peoples v Queensland [2004] FCA 298
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31
Lyon v Fishmongers’ Company [1876] 1 AC 662
Mabo v Queensland (No 2) (1992) 175 CLR 1
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Marine Board of Launceston v Launceston Corporation (1955) 93 CLR 472
Marshall v Smith (1907) 4 CLR 1617
Mason v Tritton (1994) 34 NSWLR 572
McKenzie v State Government of South Australia [2005] FCA 22
Members of the Yorta Yorta Aboriginal Community v Victoria (1999) 110 FCR 244
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Miles v Rose (1814) 5 Taunt 705; 128 ER 868
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Minister for Primary Industry and Energy v Davey (1994) 47 FCR 151
Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1
Munn v Queensland [2002] FCA 486
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209
New South Wales v Commonwealth (1975) 135 CLR 337
Newcrest Mining (WA) v Commonwealth (1997) 190 CLR 513
Nicholas v The Queen (1998) 193 CLR 173
Parker v Lord Advocate [1904] AC 364
Pennington v McGovern (1987) 45 SASR 27
Plenty v Dillon (1991) 171 CLR 635
Port MacDonnell Professional Fishermens Assoc Inc v South Australia (1989) 168 CLR 340
Queen v Davison (1954) 90 CLR 353
R v Robertson (1882) 6 SCR 52
R v Kearney, Ex parte Japanangka (1984) 158 CLR 395
R v Smith (1780) 2 Doug R 441; 99 ER 283
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Reid v Chapman (1984) 37 SASR 117
Risk v Northern Territory (2002) 210 CLR 392
Ritz Hotel v Charles of the Ritz (No 7) (1987) 14 NSWLR 104
Rogers v Squire (1978) 23 ALR 111
Sakurai v Northern Territory (2004) 208 ALR 483
Schleter t/as Cape Crawford Tourism v Brazakka Pty Ltd (2002) 12 NTLR 76
Southern Centre of Theosophy Inc v South Australia (1979) 21 SASR 399
Sportodds Systems Pty Ltd v New South Wales (2004) 133 FCR 63
The Genesee Chief 53 US 443 (1851)
The Queen v Joske Ex Parte Shop Distributive and Allied Employees’ Assoc (1976) 135 CLR 194
Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317
Tuckiar v The King (1934) 52 CLR 335
Wake v Northern Territory (1996) 109 NTR 1
Warren v Matthews (1704) 6 Mod R 73; 87 ER 831
Western Australia v Commonwealth (1995) 183 CLR 373
Western Australia v Ward (2000) 99 FCR 316
Western Australia v Ward (2002) 213 CLR 1
Western Australia v Wilsmore (1982) 149 CLR 79
Wik Peoples v Queensland (1994) 49 FCR 1
Wik Peoples v Queensland (1997) 187 CLR 1
Williams v Booth (1910) 10 CLR 341
Wilson v Anderson (2002) 213 CLR 401
Yanner v Eaton (1999) 201 CLR 351
Yarmirr v Northern Territory [2000] FCA 48
Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533
Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606Kaye, “The South Australian Historic Bays: An Assessment” (1995) 17 Adel L Rev 269
M H McLelland, “Colonial and State Boundaries in Australia” (1971) 45 ALJ 671
Sandford Clark “The River Murray Boundary: Muddying the Waters” (1983) 57 ALJ 260
Sandford Clark, “The River Murray Question” (1971) 8 MULR 11
Secher, “The Reception of Land Law into the Australia Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of Continuity Pro-Tempore” (2004) 27 UNSWLJ 703
Woodward, “Land Rights and Land Use: A View from the Sidelines” (1985) 59 ALJ 413Clarke, Australian Water Law (1971) (unpublished PhD thesis)
Buku-Larrngay Mulka Centre Saltwater Yirrkala Bark Paintings of Sea Country
Freckeltyon, Reddy & Selby in Australia - Judicial Perspectives on Expert Evidence: An Empirical Study (1999)
Halsbury’s Laws of England (4th edn – re-issue) Vol 12(1)
Holdsworth An Historical Introduction to the Land Law (1927)
Lester “Aboriginal Land Rights: the territorial rights of the Inuit of the Canadian Northwest Territories; a legal argument (Repub 1985)
Plucknett A Concise History of the Common Law (5th ed, 1956)Mantziaris & Martin Native Title Corporations (2000)
Nettheim Governance Bodies and Australian Legislative Provision for Corporations and Councils (1999)GAWIRRIN GUMANA & ORS on behalf of the YARRWIDI GUMATJ and Other Groups v NORTHERN TERRITORY OF AUSTRALIA and NORTHERN TERRITORY OF AUSTRALIA and COMMONWEALTH OF AUSTRALIA and NORTHERN TERRITORY SEAFOOD COUNCIL INC and ARNHEM LAND ABORIGINAL LAND TRUST and TELSTRA CORPORATION LTD
NTD 6035 OF 2002
ARNHEM LAND ABORIGINAL LAND TRUST and NORTHERN LAND COUNCIL and GAWIRRIN GUMANA, & ORS On behalf of the Yarrwidi Gumatj and other groups v NORTHERN TERRITORY OF AUSTRALIA and DIRECTOR OF FISHERIES (NT)
NTD 12 OF 2003
SELWAY J
7 FEBRUARY 2005
ADELAIDE (HEARD IN YIRRKALA AND CANBERRA)
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 6035 OF 2002
BETWEEN:
GAWIRRIN GUMANA & ORS on behalf of the YARRWIDI GUMATJ and Other Groups
APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENTCOMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTNORTHERN TERRITORY SEAFOOD COUNCIL INC
THIRD RESPONDENTARNHEM LAND ABORIGINAL LAND TRUST
FOURTH RESPONDENTTELSTRA CORPORATION LTD
FIFTH RESPONDENTJUDGE:
SELWAY J
DATE OF ORDER:
7 FEBRUARY 2005
WHERE MADE:
ADELAIDE (HEARD IN YIRRKALA AND CANBERRA)
THE COURT ORDERS THAT:
1.The proceedings be adjourned to a date to be advised to enable the parties to make submissions as to the appropriate terms of final orders.
2. Question of costs be reserved.
3. Liberty to apply.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
AND
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 12 OF 2003
BETWEEN:
ARNHEM LAND ABORIGINAL LAND TRUST
FIRST APPLICANTNORTHERN LAND COUNCIL
SECOND APPLICANTGAWIRRIN GUMANA, & ORS On behalf of the Yarrwidi Gumatj and other groups
THIRD APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENTDIRECTOR OF FISHERIES (NT)
SECOND RESPONDENTJUDGE:
SELWAY J
DATE OF ORDER:
7 FEBRUARY 2005
WHERE MADE:
ADELAIDE (HEARD IN YIRRKALA AND CANBERRA)
THE COURT ORDERS THAT:
1.The proceedings be adjourned to a date to be advised to enable the parties to make submissions as to the appropriate terms of final orders.
2. Question of costs be reserved.
3. Liberty to apply.
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
NTD 6035 OF 2002
BETWEEN:
GAWIRRIN GUMANA & ORS on behalf of the YARRWIDI GUMATJ and Other Groups
APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENTCOMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTNORTHERN TERRITORY SEAFOOD COUNCIL INC
THIRD RESPONDENTARNHEM LAND ABORIGINAL LAND TRUST
FOURTH RESPONDENTTELSTRA CORPORATION LTD
FIFTH RESPONDENTAND
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 12 OF 2003
BETWEEN:
ARNHEM LAND ABORIGINAL LAND TRUST
FIRST APPLICANTNORTHERN LAND COUNCIL
SECOND APPLICANTGAWIRRIN GUMANA, & ORS On behalf of the Yarrwidi Gumatj and other groups
THIRD APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENTDIRECTOR OF FISHERIES (NT)
SECOND RESPONDENT
JUDGE:
SELWAY J
DATE:
7 FEBRUARY 2005
PLACE:
ADELAIDE (HEARD IN YIRRKALA AND CANBERRA)
REASONS FOR JUDGMENT
The essential issue raised in these proceedings is whether, and to what extent, the traditional owners of parts of Blue Mud Bay in north-east Arnhem Land can exclude fishermen and others from the “inter-tidal zone” of the claim area and from the adjacent sea certain sites in the inter-tidal zone or in the sea. In order to raise and test this issue the applicants have issued two proceedings. In the first proceeding the relevant applicants seek declarations that by reason of land grants to the applicants under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act) and the provisions of that Act the Northern Territory lacks the legislative and executive power to issue fishing licences over the inter-tidal zone and the adjacent sea within 2 kilometres of the low water mark. In the second proceeding the relevant applicants seek a determination of native title rights under the Native Title Act 1993 (Cth) (the NTA).
For the reasons given below, I am of the opinion that it is inappropriate to make any of the declarations sought by the applicants in the first proceeding relating to the powers of the Northern Territory to issue fishing licences.
Also for the reasons given below I find:
(i)As to the “land” other than the inter-tidal zone (which term refers to the area of the foreshore between the low and high water mark and to the area of rivers and estuaries affected by the ebb and flow of the tides) – the applicants have a native title right of exclusive possession:
(ii)As to the sea and the inter-tidal zone – the applicants have native title rights similar to those identified in Yarmirr: (see Commonwealth v Yarmirr (2001) 208 CLR 1 at 144-145 [327]) as further explained in Lardil Peoples v Queensland [2004] FCA 298.
I seek further submissions from the parties as to the form and terms of final orders.
INTRODUCTION
The area of north-east Arnhem Land has a distinctive history. The Aboriginal inhabitants of the area form a distinct cultural group with similar languages, traditions and customs. They are generally described as the “Yolngu” people. That word apparently has a number of different meanings - it is used in these reasons to refer to that cultural group. The claimants are all Yolngu people. The clans that they represent are identified by Yolngu tradition.
GENERAL CONSTITUTIONAL BACKGROUND
The area of north-east Arnhem land, being to the eastward of the 135th degree of east longitude, formed part of the colony of New South Wales when it was first settled in January, 1788. Apart from a period from 1846-1848 when that area formed part of a separate colony of North Australia, the area remained part of New South Wales until September, 1863. It was then annexed to the province of South Australia pursuant to letters patent dated 6 July, 1863. Those letters patent referred to the area which had previously formed part of the colony of New South Wales, but also expressly included “the bays and gulfs therein”. This is discussed in more detail below.
When the federal Commonwealth was created in 1901 by the Commonwealth Constitution the Northern Territory formed part of the State of South Australia. Pursuant to the powers conferred by s 111 of the Constitution the Northern Territory, “together with the bays and gulfs therein” was surrendered by South Australia to the Commonwealth by s 7 of the Northern Territory Surrender Act, 1907 (SA) and by s 6 of the Northern Territory Acceptance Act 1910 (Cth). Thereafter the Northern Territory was a Territory for the purposes of the Commonwealth Constitution. This history is described in M H McLelland, “Colonial and State Boundaries in Australia” (1971) 45 ALJ 671 and in the judgment of Gallop J in Rogers v Squire (1978) 23 ALR 111 at 116-119 and in the joint judgment of Beaumont and von Doussa JJ in Commonwealth v Yarmirr (1999) 101 FCR 171 (Yarmirr FC) at 199-200 [92] – [95].
In the reasons of McHugh J and of Callinan J in the High Court in Commonwealth v Yarmirr (2001) 208 CLR 1 (Yarmirr HC) at 70-71 and 148-150 both of their Honours refer to the extension of the territory of New South Wales in 1824 to include the remaining part of what is now the Northern Territory to the west of the 135th degree of east longitude. It may be that there is an implication that their Honours were of the view that the area of north-east Arnhem land had not been claimed by the British Crown before 1824. Nevertheless, it is clear (and was accepted by all parties) that the area that is the subject of the current proceedings (leaving aside the “bays and gulfs”) was claimed by the British Crown as from January, 1788.
The Northern Territory was governed by the Commonwealth Government from 1911 pursuant a variety of statutes, but particularly the Northern Territory (Administration) Act 1910 (Cth) (the Administration Act). Responsible self-government was conferred on the Northern Territory by the Northern Territory (Self Government) Act 1978 (Cth) (the Self Government Act).
HISTORY OF THE CLAIMANT AREA
Although there had been some historical contact between the Yolngu inhabitants of the Blue Mud Bay area and Macassan trepang traders up until the early 20th century, there was little contact between those inhabitants and “Europeans” until the late 1920s.
In the period from 1884-1913 pastoral leases were granted over large parts of east Arnhem land, including the Blue Mud Bay area. The leases were granted pursuant to South Australian legislation – the Crown Lands Consolidation Act 1882 (SA); then the Northern Territory Crown Lands Act 1890 (SA) and finally the Northern Territory Land Act 1899 (SA). Each of the leases was for pastoral purposes. Each of them expressly excepted to the “Aboriginal inhabitants of the State and their dependants” the “full and free right of ingress egress into upon and over the said lands and every part thereof and in and to the springs and natural surface water thereon and to make such wurlies and other dwellings as the Aboriginal Natives have been heretofore accustomed to make and erect and take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this lease had not been made”. The history of these leases is explained in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Milirrpum) at 148.
On 16 April, 1931 the Arnhem Land Reserve was created “for the use and benefit of Aboriginal native inhabitants” pursuant to the Crown Lands Ordinance 1927. The land of the Blue Mud Bay area formed part of the Reserve.
Although the claim area had formed part of various pastoral leases and then a reserve, what limited early physical interaction there was between the Yolngu people near Blue Mud Bay and “Europeans” or other “outsiders” would seem to have been violent and bloody. In 1932 there were a number of deaths of Japanese fishermen. This led to the intervention of the police which ultimately resulted in the death of a police constable on Woodah Island (which is in Blue Mud Bay, but outside the claim area) in 1932. Those events are described in Tuckiar v The King (1934) 52 CLR 335.
One result of those events was an increasing interest by the Commonwealth government in the area of north-east Arnhem land. It engaged an anthropologist, Donald Thomson, to work with the Aboriginal people in the area and to report on what should be done. Another result was an increased involvement by the Methodist Church in establishing a mission station at Yirrkala in 1935. In the ensuing years many of the aborigines of the north-east Arnhem land, including most of those of the Blue Mud Bay area, moved to Yirrkala or to mission stations to the south at Roper River or Numbulwar (established in 1952).
In the 1960s the Yolngu people then living at Yirrkala and with traditional lands in the vicinity of Melville Bay took various steps to protect their traditional lands from proposed mining operations on the Gove Peninsula. In 1963 they petitioned the Parliament (the Bark petition) seeking its protection. This led to the creation of a Select Committee of the House of Representatives which reported that year. Its report is mentioned in the reasons of Sackville J in Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 (Land Trust Case FC) at 495-496. Apparently as a result of that report the previous reservation was resumed by proclamation made on the 27 November, 1963 and replaced by a different reserve created “for the use and benefit of wards as defined under s 6 of the Welfare Ordinance 1953-1963”. As Sackville J noted:
‘The description of the consolidated Arnhem Land Reserve in the 1963 proclamation differed from that found in the earlier proclamations. In particular, the boundaries of the lands within the Reserve were identified by reference to the low water marks of various rivers and of the Timor or Arafura Seas. As with the Grant in 1980, the description of the reserved lands employed straight lines joining the extremities of the banks of rivers, streams and estuaries.’
The political representations of the Yolngu people were otherwise unsuccessful, at least initially. In 1968 the Mining (Gove Peninsula Nabalco Agreement) Ordinance was enacted providing for the grant of mining leases for the mining and treatment of bauxite in the area between Yirrkala and Melville Bay. In 1968 the traditional owners instituted proceedings in the Supreme Court of the Northern Territory seeking to restrain the proposed mining operations. They were ultimately unsuccessful in those proceedings, although the Court did identify that the plaintiffs had a system of traditional laws and possessed traditional rights under those traditional laws: see Milirrpum. Although the area in dispute in that case did not involve Blue Mud Bay, some of those having traditional rights in the area of Blue Mud Bay were involved in the case either as witnesses or as interpreters.
In the early 1970s a number of Yolngu people then living at Yirrkala, but with traditional lands elsewhere in east Arnhem land, began to relocate back to their traditional lands. This was part of the “homeland centre movement” which occurred in Aboriginal communities throughout northern Australia at that time. It was given added impetus in East Arnhem land by the creation of the town of Nhulunbuy near Yirrkala to service the mining operations and the development of better infrastructure throughout the region to service the mine. Permanent settlements were established at Yilpara, Djarrakpi, Gangan and other places on or near Blue Mud Bay. By the mid 1970s the majority of the Yolngu from northern Blue Mud Bay had moved to one or other of these homeland centres. They continue to live at those places. They are partly dependant on food obtained from hunting, fishing and gathering. They visit Yirrkala and Nhulunbuy for supplies, medical treatment and sport, to compete in sporting matches and so on.
THE LAND RIGHTS ACT
Following the decision in Milirrpum the Commonwealth Government established a Commission (the Woodward Commission) to report on Aboriginal rights in the Northern Territory. The direct result of the two reports made by the Commission (the Woodward reports) was the enactment by the Commonwealth Parliament of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act). The relationship of the Woodward Reports to the Land Rights Act has been discussed in a number of cases, including in Arnhem Land Aboriginal Land Trust v Director of Fisheries NT (2000) 170 ALR 1 (the Land Trust Case TJ) at 8; the Land Trust Case FC at 495 and 497-501 and Risk v Northern Territory (2002) 210 CLR 392 (Risk) at 405-406, 408-409, 414, 418-420 and 425-428. See also Woodward, “Land Rights and Land Use: A View from the Sidelines” (1985) 59 ALJ 413.
The area of Blue Mud Bay was contained within the area described as “Arnhem Land (Mainland)” in Sch 1 of the Land Rights Act. That area corresponds generally with the boundaries of the previous reserve created in 1963. The seaward boundary of the relevant land was defined as the low water mark. Once a Land Trust was established for the purpose, the relevant Minister was required under s 10 of the Land Rights Act to recommend to the Governor-General that he make a deed of a grant of fee simple over the land referred to in Sch 1 of the Act. Upon the establishment of the Arnhem Land Aboriginal Trust (the Trust) a grant of fee simple was made in 1980 to the Trust over the land, including the “land” area of Blue Mud Bay. The relevant terms of the grant were as follows:
‘NOW THEREFORE I, SIR ZELMAN COWEN … Governor-General of the Commonwealth of Australia … acting in accordance with the said recommendation, DO HEREBY GRANT to the [Arnhem Land Trust] an Estate in Fee Simple subject to the provisions of the [Land Rights Act] 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 more particularly shown on Compiled Plan 4181 … .
AND I HEREBY RESERVE AND EXCEPT to the Commonwealth of Australia the right to any minerals existing in their natural condition, … on or below the surface of the said land, being minerals all interests in which are vested in the Commonwealth of Australia ….
AND I HEREBY RESERVE AND EXCEPT to the Northern Territory of Australia the right to any minerals existing in their natural condition, on or below the surface of the said land, being minerals all interests in which are vested in the Northern Territory of Australia …’.
The Land Trust holds the land “for the benefit of the Aboriginals concerned”: s 5(1)(b) of the Land Rights Act. The Land Trust is required to act in accordance with directions given to it by the Northern Land Council: s 5(2) of the Land Rights Act. The functions of the Northern Land Council include the protection of “the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council”: s 23(1)(b) of the Land Rights Act.
PREVIOUS LEGAL PROCEEDINGS
In the mid-1990s members of the communities at Blue Mud Bay became aware of fishing activities in the waters of Blue Mud Bay. The communities determined to seek to control that activity. In one instance they entered into an agreement with a commercial crabber to permit that crabber to have access to their land as a base for crabbing activities and to give the crabber the “right” to take crabs from Blue Mud Bay. Others who sought access to the land and the waters were refused. Increased attempts were made by the communities to inform those seeking to fish in Blue Mud Bay that they required permission and that, in the absence of it, they should leave.
At the same time the communities of Blue Mud Bay sought to establish their rights in the waters of Blue Mud Bay. For this purpose a number of bark paintings evidencing the relationship of the various clans in the Blue Mud Bay with the waters of the Bay were created. Copies of a number of those paintings were put into evidence by the persons who painted them. They are also collected in a book published by the Buku-Larrngay Mulka Centre Saltwater Yirrkala Bark Paintings of Sea Country which explains the meanings of the paintings and the nature of the claims represented in them.
Finally, in order to assert and establish the claims of the Yolngu people to part of the waters of Blue Mud Bay, the Trust instituted proceedings in this Court. Initially two proceedings were instituted. In one – Arnhem Land Aboriginal Land Trust v Director of Fisheries NT (Action No D 5 of 1997) - orders were sought that the Director of Fisheries of the Northern Territory did not have the power to issue fishing licences in the tidal waters within the area of the land grant. In the other - Yakiki Maymuru v Northern Territory (No DG 6043 of 1998) a determination of native title was sought in the waters of the Blue Mud Bay and in the adjacent land.
Preliminary questions of law were agreed by the parties in the action dealing with the powers of the Director. Those questions were dealt with by Mansfield J in Land Trust Case TJ. His Honour held:
(1)The solum between the low and high water mark was included within the grant. Some forms of aquatic life, such as mussels may form part of the solum and fall within the grant: see Land Trust Case TJ at 22 [87].
(2)In relation to the ownership of the waters covering the land between low and high water marks, the issue was governed by the decision of the Full Court in Yarmirr FC which held that such waters were not included within the grant and that such waters were subject to the public right to fish: see Land Trust Case TJ at 10 [32] and 12-14 [39]-[47].
(3)The various legislative regimes applicable to fishing in the Northern Territory did not abrogate the public right to fish – rather, they regulated that right: see Land Trust Case TJ at 17-18 [70]. Nor did those regimes involve the grant of a property right to any licence holder over the area between the low and high water marks of the land grant: see Land Trust Case TJ at 18 [72].
(4)Notwithstanding the grant made under the Land Rights Act, the common law public right to fish continued in relation to waters covering the land between the low and high water marks: see Land Trust Case TJ at 19-20 [73]-[82].
(5)However, the grant under the Land Rights Act impliedly abrogated the public right to fish in relation to waters to the landward of the high water mark including in relation to the waters of rivers where the tide flows and reflows: see Land Trust Case TJ at 20-22 [79]-[84].
(6)In consequence the Northern Territory fisheries legislation operated to the seaward of the high water mark, but not to the landward of the high water mark. The Northern Territory fisheries legislation did not operate in rivers to the landward side of a line drawn between the high water mark of the land on the bank of the river, even if the river was affected by the ebb and flow of the tide.
The Director appealed from that decision. The Full Court in Land Trust Case FC allowed the appeal on the basis that the facts before Mansfield J were insufficient for him to answer the questions that had been agreed by the parties (see Land Trust Case FC at 519‑525). Nevertheless, the Full Court considered it unlikely that the grant under the Land Rights Act had included a right in the Trust on behalf of the Yolngu communities to exclude persons exercising a public right to fish. As Sackville J (with whom Spender and Merkel JJ agreed) put it at 525-526:
‘Without expressing a final view, I should indicate that, in my view, there are obstacles in the path of accepting the cross-appellants’ contention that the grant of the fee simple estate to the Arnhem Land Trust, of itself, carried with it exclusive rights to fish in the Waters. That contention is not easy to reconcile with the legislative history of the Land Rights Act, which tends to suggest that the fee simple estate granted pursuant to s 12(1) carried “all the normal incidents of such title” (to use the language of the Second Report ...). If that is correct, it would seem to follow that the Arnhem Land Trust’s right to “enjoy the exclusive right of fishing in [the Waters] or to grant such a right to another as a profit a prendre is qualified by the paramount right to fish vested in the public”(Harper v Minister for Sea Fisheries at 329, per Brennan J, with whom the other members of the Court agreed). See also Attorney-General (British Columbia) v Attorney-General (Canada) [1914] AC 153 at 170-171. I also think that there are difficulties with the contention that the “scheme” of the Land Rights Act is to confer on the Arnhem Land Trust exclusive rights to the Waters.’
CURRENT PROCEEDINGS
The applicants then issued further proceedings in order to narrow the issues. Another application was made for a determination of native title in relation to a narrower claim area and that area was excised from the previous claim. The new proceedings in relation to the smaller claim area (No D6035 of 2002) are the proceedings that are before me. The claimants are Messrs Gawirrin Gumana, Djambawa Marawili, Marrirra Marawili, Nuwandjali Marawili, Daymambi Mununggurr, Manman Wirrpanda and Dhukal Wirrpanda on behalf of the Yarrwidi Gumatj, Manggalili, Gumana Dhalwangu, Wunungmurra (Gurrumuru) Dhalwangu, Dhupuditj Dhalwangu, Munyuku, Yithuwa Madarrpa, Manatja, Gupa Djapu, Dhudi Djapu, Marrakulu 1, Marrakulu 2, Wanawalakuymirr Marrakulu, Djarrwark 1, Djarrwark 2, and Gälpu groups. The groups are Yolngu clans claiming to hold native title interests in the claim area.
The “claim area” is described on a map forming part of the Statement of Claim and more particularly in the Amended Application filed on 13 August 2004. In more general terms the claim area is in the northern part of Blue Mud Bay and comprises Myaoola Bay, Grindall Bay and the shores of the eastern side of Jalma Bay with adjacent lands. More particularly the claim area can be described as follows:
‘(1)The south-western point of the boundary commences at a point on the coastline of Jalma Bay at about 135.56.19E and -13.02.33N and thence proceeds in a generally south easterly direction generally along the low water mark of the coastline of Jalma Bay until it reaches the southern most point at low water mark at Grindall Point.
(2)From Grindall Point the boundary proceeds generally in an easterly direction across the bight of Grindall Bay to the southern most point of Round Hill Island at low water mark, and thence continues across the bight of Grindall Bay until it reaches the southern most point at low water mark at Point Blane.
(3)From Point Blane the boundary continues in a generally easterly direction across the bight of Myaoola Bay until it reaches the southern most point at high water mark at Cape Shield at about 136.19.58E and -13.19.34N.
(4)From Cape Shield the boundary follows generally the high water mark of the coastline of Myaoola Bay until it reaches a point in Myaoola Bay at about 136.21.20E and -13.03.07N and then proceeds inland generally in a north-westerly direction to a point near Wyonga River at about 136.19.41E and -12.55.34N.
(5)From that point near Wyonga River the boundary proceeds inland generally in a south-westerly direction to a point near Gan Gan at about 135.56.19E and -13.02.33N, and from there the boundary proceeds inland generally in a southerly direction until it reaches the south-western point of the boundary of the determination area on the coastline of Jalma Bay at about 135.56.19E and -13.02.33N.’
The claim area does not comprise all of the traditional lands of at least some of the claimant clans. It is accepted by all the parties that the claim area has been identified by the claimants on a relatively arbitrary basis so as to enable them to test the issues that they seek to have resolved in these proceedings.
In addition the Arnhem Land Aboriginal Land Trust (‘the Land Trust’) and others have instituted proceedings under s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) seeking declarations of their rights under the land grant and seeking orders to restrain the Director of Fisheries and the Northern Territory from issuing fishing licences in relation to parts of the claim area. It is claimed that the issue of those fishing licences is in breach of the provisions of the Land Rights Act and is unlawful. Subject to an argument of the Commonwealth that there is no relevant “matter” (discussed below), this Court has jurisdiction to hear those proceedings in that they involve a matter arising under a Commonwealth Act. In any event, they are associated with the proceedings seeking a determination of native title rights.
The two proceedings were heard together. Evidence in one was treated as evidence in the other. In these reasons the words “the applicants” and “the respondents” need to be understood in the context of the proceedings being discussed so as to refer to one or other group of applicants and respondents. Given the close correspondence between these groups I hope that this does not result in too much confusion.
ISSUES IN THE PROCEEDINGS
The application under the Judiciary Act was based, in part at least, upon an argument that the Trust had a right to exclude from the whole of the area of the land grant, including a right to exclude persons fishing or navigating in the “inter-tidal zone” (a term which is used in these reasons to refer to “the foreshore” (being the area of the shore between high and low water marks) and that part of rivers and estuaries that is affected by the tides).
The application for a determination of native title initially involved, at least in general terms, a claim of a native title right of exclusive occupation over the whole of the claim area comprising both land and sea.
The potential issues in both proceedings were limited significantly by agreements and concessions made by the parties during the course of the proceedings.
It was accepted by all parties that a land grant of a fee simple estate had been made to the Trust pursuant to the Land Rights Act and that the “land” area of the claim to the low water mark was included within the grant. Save for an argument by the Commonwealth about common law rights to navigate in navigable rivers (an argument not reflected in the pleadings) the respondent’s accepted that the Trust and the other applicants have an exclusive right to occupy that area except in relation to the inter-tidal zone.
In the native title proceedings the respondents have conceded in their respective defences that the applicants have a native title right of exclusive possession to that part of the claim to the landward of the high water mark excluding rivers and estuaries that are subject to the tides.
During the course of his opening address Mr Basten QC, appearing for the applicants, made significant concessions in relation to the native title claim to the seaward of the low water mark. In the course of giving reasons in interlocutory proceedings I described those concessions as follows:
‘In relation to the claim to the seaward of the low water mark, Mr Basten conceded that the claimants could not succeed in their claim for exclusive possession of all of that area. He conceded that the applicants could only succeed in relation to that area in obtaining a determination of nonexclusive rights of the sort identified in Yarmirr v The Commonwealth, and I refer in particular to [2001] 208 CLR at page 33 paragraph 2, and 144 to 145 paragraph 327. Mr Basten said that he was not limiting his argument to the specific form of words used in that determination, but plainly enough the concession was that rights of that sort were the rights being claimed.
The concession was qualified, however, Mr Basten said that the claimants continued to claim rights of exclusive possession, and in particular the right to exclude, in relation to two or maybe three areas. First, sites of particular spiritual significance to which all persons were excluded. This either included
or involved in addition, areas where women and uninitiated or uninvited men
were also excluded. Finally, there were larger sites generally associated with
the particular spiritual sites already referred to, from which people were excluded either generally or for particular purposes during particular times, usually associated with funerals but perhaps also with other ceremonies.As I understand it, the claimants do not seek to resile from those concessions. I note that they would require leave to do so, and that they may face considerable difficulty in obtaining such leave. See the discussion by Moore J in Annayev Proprietary Limited ats L. Fott Proprietary Limited,(T3,10.40M) unreported judgment given on 11 November 1997.’
The applicants did seek to amend their Statement of Claim in the proceedings arising under the NTA for the purpose of reflecting these concessions, but I declined to grant them leave to do so because in my view the proposed terms upon which they sought to amend their pleadings would not have clarified the position.
The concessions made by the applicants were accepted by the respondents. As I understand it none of them disputed that the applicants could and should obtain a determination in relation to the claim area to the seaward of the low water mark in the same general terms as the determination made in Yarmirr HC. In a letter from the Solicitor General of the Northern Territory (Mr Pauling QC) to the solicitor for the Northern Land Council dated 6 April, 2004 the position of the Northern Territory was stated as follows:
‘… I wish to formally advise that the Northern Territory would be prepared to consent to a determination of non-exclusive and non-commercial native title rights and interests in the claim area of the abovementioned matter, in the same or similar terms which have been recognised and accepted by the Courts in determinations of native title relating to waters of the sea, such as in Commonwealth v Yarmirr (2001) 208 CLR 1 and, more recently, in Lardil Peoples v Queensland [2004] FCA 298.’
At the directions hearing on 6 April 2004 Ms Webb, counsel for the Commonwealth stated:
‘I’m instructed that the Commonwealth is prepared to make admissions to the effect that the applicants hold native title rights of the kind found in Croker Island and Lardil seaward of high water mark.’
At the same directions hearing Mr Hiley, counsel for the Northern Territory Seafood Council Inc stated:
‘… we make admissions of the same kind as those which Ms Webb has just made on behalf of the Commonwealth. And as those which are defined in the letter that Mr Pauling has … to the Court on behalf of the Northern Territory.’
As already noted, there were qualifications to the concessions made by Mr Basten QC. The applicants continued to claim rights of exclusive possession (and, in particular, the right to exclude) in relation to the sea below low water mark in relation to particular areas. First, from sites of particular spiritual significance (called djalkiri areas) to which all persons were excluded or to which specific groups, particularly women, uninitiated men and men not relevantly associated with the relevant land were excluded. Second, somewhat larger sites from which persons were temporarily excluded either generally or for specific purposes (such as fishing or hunting) in relation to particular events, such as the deaths of clan members or the conduct of particular ceremonies.
The result of the agreements and concessions referred to is that the contested issues which require resolution are largely limited to the inter-tidal zone and to the djalkiri areas.
In addition the applicant’s also seek to argue that the Fisheries Act 1988 (NT) (‘Fisheries Act’) should be read down so as not to apply within 2 kilometres of the boundary of the land grant by reason of s 73 of the Land Rights Act.
Notwithstanding the agreements reached and the concessions made, there are still a significant number of issues raised by the proceedings. In particular:
(a)Do all of the issues raised in the Judiciary Act proceedings raise a “matter” for the purposes of Chapter III of the Commonwealth Constitution?
(b)If they do, does the land grant confer on the Land Trust the exclusive right of occupation over the whole area of the grant? In particular, does it exclude any subsisting public right to fish over the whole area of the grant? If not, does it do so:
i.Between the high water mark and the low water mark?
ii.In those parts of rivers affected by the flow and reflow of the tide and, if so, in which parts?
(c)If there is a “matter” does s 73 of the Land Rights Act limit the powers of the Northern Territory Parliament in relation to the regulation of fisheries within the area of the grant and/or within 2 kilometres to the seaward of the area of the grant?
(d)For the purposes of s 225 of the NTA what are the native title interests of the claimants in relation to the area covered by the grant? In particular, do the applicants have a native title right of exclusive occupation to the inter-tidal area? Do they have a right to exclude from the djalkiri areas?
(e)For the purposes of s 225 of the NTA what other rights and interests exist in relation to the area covered by the grant?
(f)In light of the answer to issue (d) what is the effect of s 47A of the NTA?
(g)Is s 47A of the NTA within the powers of the Commonwealth Parliament? In particular, is s 47A invalid for being inconsistent with the separation of judicial power implicit within Chapter III of the Commonwealth Constitution.
(h)In light of the answers in relation to the above issues does the Fisheries Act authorise the Director to grant licences in relation to:
i.The inter-tidal zone within the claim area?
ii.The djalkiri areas?
(i)In light of the answers to the above issues what determination of native title should be made pursuant to ss 81, 94A and 225 of the NTA.
These issues (including whether it is inappropriate to address any of them) and the subsidiary issues that need to be resolved in respect of them are considered below.
“MATTER”
In the Judiciary Act proceeding the applicants seek declarations that they have the right to exclude people who seek to enter, for the purposes of fishing, land and waters anywhere within the boundaries of the land including the inter-tidal zone and inland waters. The applicants also seek declarations to the effect that the Fisheries Act does not affect the rights just described to any extent; that the Fisheries Act does not permit the issuing of fishing licences which permit fishing in the inter-tidal zone of the Arnhem Land grants, or waters of the sea within two kilometres of the external boundaries of the Arnhem Land grants and that the Fisheries Act has no application to waters of the sea adjoining, and within two kilometres of the boundaries of the Arnhem Land grants.
The jurisdiction of this Court is confined to the resolution of “matters”: see ss 75 and 76 of the Commonwealth Constitution. A “matter” requires a real dispute concerning an immediate right or liability. In particular, a declaration cannot be sought as a means of obtaining an advisory opinion: see Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355-356 [47].
In this case it seems to me that the general declarations as to the nature and extent of the rights conferred upon the applicants by the land grant do not give rise to a matter. In particular, I do not think that any of the respondents have a necessary interest in opposing those declarations, except to the extent that they affect their own powers and rights.
The Commonwealth also argued that the specific declarations sought by the applicants in relation to the powers of the Director and the operation of the Fisheries Act, did not give rise to a “matter”. The Commonwealth said that it was necessary for the declarations to relate to specific licenses granted under the Fisheries Act which were claimed to be invalid. In my view the application for those declarations does concern a “matter”. The application was preceded by an exchange of correspondence. In a letter of 21 April 1997 the Director asserted that he did have the power pursuant to the Fisheries Act to grant licenses in relation to the inter-tidal zone and in relation to waters within two kilometres of the land grant. In my view that correspondence was sufficient to identify a real dispute as to the powers under the Fisheries Act and whether those powers could be used to interfere with the rights claimed by the applicants. It was not necessary to show that the power would be exercised: see Croome v Tasmania (1997) 191 CLR 119. Even if that were necessary, the clear implication from the correspondence is that the Director intends to exercise the powers that he has in the manner in which he understands them. In my view that dispute between the parties can be tested by declaratory proceedings in this Court.
In my view this Court has jurisdiction to determine whether the Fisheries Act validly permits the issuing of fishing licenses authorising fishing in the inter-tidal zone of the land grant, or waters of the sea within two kilometres of the external boundaries of the land grant and whether the Fisheries Act has any application to waters of the sea adjoining, and within two kilometres of the boundaries of the land grant and to make appropriate declarations in that regard.
THE RELATIONSHIP BETWEEN THE FISHERIES ACT AND THE GRANT
The powers of the Northern Territory Parliament are contained in s 6 of the Self Government Act. That confers upon the Territory Parliament the power to legislate for the “peace, order and good government” of the Territory. That power, combined with the power contained in s 5(c) of the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) (Coastal Powers Act) empowers the Northern Territory Parliament to enact the Fisheries Act.
However, the powers conferred by the Self Government Act and the Coastal Powers Act must be read in the context of other Commonwealth statutes which may limit the apparent breadth of the powers conferred upon the Northern Territory Parliament: see Fullagar J in Butler v AG (Vic) (1961) 106 CLR 268 at 273-274 and see Brennan J in R v Kearney, Ex parte Japanangka (1984) 158 CLR 395 at 418-419. In particular, s 57(3) of the Self Government Act acknowledges that the Northern Territory Parliament does not have the power to alter or repeal laws made by the Commonwealth Parliament.
For present purposes the Fisheries Act has two relevant effects: (1) it prohibits commercial fishing within the Northern Territory, including the coastal sea, unless the person taking the fish holds an appropriate licence granted by the Director under s 11 and (2) it authorises a person who holds such a licence to take fish in accordance with the Act and the licence. (I note that there are exceptions in relation to persons taking fish for “subsistence or personal use” subject to prescribed limits.)
The applicants argue that the powers of the Northern Territory Parliament to enact the Fisheries Act are relevantly limited by the Land Rights Act. They argue that the land grant made under the Land Rights Act was a grant made to the low water mark and included the area of navigable streams to a boundary line drawn between the points of the shore at low water mark. The applicants say that that grant was necessarily inconsistent with the power of the Northern Territory Parliament to authorise persons to fish on the landward side of the boundary of the land grant.
In addition s 70 of the Land Rights Act prevents access to the land by persons who are not traditional owners of it. It provides in part:
‘Entry etc. on Aboriginal land
(1) A person shall not enter or remain on Aboriginal land.
Penalty: $1,000.
(2)Where a person, other than a Land Trust, has an estate or interest in Aboriginal land:
(a)a person is entitled to enter and remain on the land for any purpose that is necessary for the use or enjoyment of that estate or interest by the owner of the estate or interest; and
(b)a law of the Northern Territory shall not authorize an entry or remaining on the land of a person if his or her presence on the land would interfere with the use or enjoyment of that estate or interest by the owner of the estate or interest.
(2A)In proceedings for an offence against subsection (1), it is a defence if the person enters or remains on the land in performing functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2A) (see subsection 13.3(3) of the Criminal Code ).
(3)In proceedings for an offence against subsection (1), it is a defence if the person charged proves that his entry or remaining on the land was due to necessity.
(4) … ’
Sections 73 and 74 of the Land Rights Act make specific provision for the powers of the Northern Territory Parliament. They provide:
’73 Reciprocal legislation of the Northern Territory
(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:
(a)laws 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, laws regulating or authorizing the entry of persons on those sites, but so that any such laws 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)laws regulating or authorizing the entry of persons on Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition;
(c)laws 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, laws 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 laws shall provide for the right of Aboriginals to utilise wildlife resources; and
(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;
but any such law has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular, with this Act, Division 4 of Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 and any regulations made, schemes or programs formulated or things done, under this Act, or under or for the purposes of that Division.
(2)Subsection (1) does not affect the continued operation of any Ordinance of the Northern Territory relating to a matter referred to in that subsection made before the commencement of this section if that Ordinance could have been made in accordance with that subsection, but an Ordinance of the Northern Territory made before the commencement of this section and relating to a matter referred to in subsection (1) has effect after the commencement of this section to the extent only that it would have had effect if made after the commencement of this section.
7 Application of laws of Northern Territory to Aboriginal land
This Act does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that that law is capable of operating concurrently with this Act.’
I note that s 74A of the Land Rights Act (which was inserted by Act No. 16 of 1982) makes provision for financial assistance to persons seeking to put submissions to a commissioner as to whether the powers under s 73(1)(d) of the Land Rights Act should be exercised.
Other provisions of the Land Rights Act make specific provision for the continued operation of other laws and powers of the Northern Territory. For example, Part IV of the Land Rights Act makes specific provision in relation to mining and minerals. As discussed below, the word “minerals” is defined in s 3 of the Land Rights Act to include “water”. There are also specific provisions relating to the construction of roads (s 68) and the powers of compulsory acquisition of aboriginal land (s 67).
The applicants argue:
(a)That the grant of a fee simple estate to the “low water mark” combined with the prohibition on entry onto the land in s 70 of the Land Rights Act has the effect that the Northern Territory Parliament cannot authorise persons to enter onto the inter-tidal zone for the purpose of taking fish. Consequently, the applicants say that the Northern Territory and the Director (supported by the Commonwealth and the Seafood Council) are wrong in their assertions that there is power under the Fisheries Act to issue a licence for that purpose. The respondents, on the other hand, say that the land grant and the prohibition on entry by s 70 of the Land Rights Act are subject to public rights to fish and navigate. The respondents say that those public rights are regulated by the Fisheries Act pursuant to the Self Government Act, the Coastal Powers Act and s 74 of the Land Rights Act.
(b)That the only power of the Northern Territory Parliament to regulate fisheries within 2 kilometres of land granted under the Land Rights Act is the power contained in s 73(1)(d) of the Land Rights Act. The applicants say that the Northern Territory Parliament has not complied with the pre-conditions to the exercise of that power with the consequence that fisheries licences cannot be granted within two kilometres of the land. The respondents say that the power in s 73(1)(d) of the Land Rights Act is not the only power the Northern Territory Parliament has to regulate fisheries within the area of two kilometres of the land. In any event, they say that the Fisheries Act complies with the relevant pre-conditions.
THE LEGAL EFFECT OF THE LAND GRANT
The boundaries of the Arnhem Land Reserve created in 1963 and of the 1980 land grant both extended to the low water mark. In order to understand the significance of this it is necessary to consider some arcane aspects of English property law.
The common law of tenure applied only to the low water mark: New South Wales v Commonwealth (1975) 135 CLR 337 (New South Wales v Commonwealth) at 487. However, special common law rules applied in relation to land above the low water mark that was covered or affected by the sea. In relation to the area of the foreshore between the high and low water marks (hereinafter “the foreshore”) the Crown had property in the soil pursuant to the prerogative. Both the high and low water marks were identified as the mean of average or ordinary tides: see AG v Swan (1921) 21 SR (NSW) 408 at 420-421; Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 (Yarmirr TJ) at 547. In England the Crown’s rights to the foreshore seem to have been treated as a separate prerogative of the Crown. In Australia they can perhaps be treated as part of the broader prerogative of the Crown in relation to wastelands: see Southern Centre of Theosophy Inc v South Australia (1979) 21 SASR 399 at 411-412.
The Crown’s prerogative rights in the soil of the foreshore did not confer full rights of dominium over the land and waters. The Crown did not have a fee simple over the foreshore – if its rights can be usefully described in terms of the theory of tenure, they were analogous to a radical title: contrast Yarmirr HC at 59 and 102 and Lardil Peoples v Queensland [2004] FCA 298 (Lardil) at [221].
In particular, the prerogative rights of the Crown were subject to the common law public right to fish and the public right to navigation: see Harper v Minister of Sea Fisheries (1989) 168 CLR 314 (Harper) at 329-331; New South Wales v Commonwealth at 419, 423, 489; Minister for Primary Industry and Energy v Davey (1994) 47 FCR 151 at 168; Anderson v Alnwich DC [1993] 1 WLR 1156, 1166-1170.
Pursuant to the prerogative the Crown could make grants of the land within the foreshore: see AG v Ngati Apa [2003] 3 NZLR 643 (AG v Ngati Apa) at 679. However, as the rights of the Crown were subject to the public rights to fish and navigate, it could not make any grant which was inconsistent with those public rights: see Warren v Matthews (1704) 6 Mod R 73; 87 ER 831; Blundell v Catterall (1821) 5 B & Ald 268; 106 ER 1190 (Blundell); AG (British Columbia) v AG (Canada) [1914] AC 153 (British Columbia) at 168. Consequently the Crown did not hold and could not grant a “bare” fee simple.
There were at least four qualifications to the rule that the Crown’s prerogative rights in the soil in the foreshore (and any grants made by the Crown in relation to the foreshore) were subject to the public rights to fish and to navigate:
(a)First, as Mansfield J commented in Land Trust TJ some aquatic creatures, particularly mussels, are so fixed to the solum that they are considered to be part of it: see Parker v Lord Advocate [1904] AC 364. In relation to these creatures the Crown could confer exclusive property rights on third parties.
(b)Second, an exclusive right to fish in a class of the public could be established by proof of custom from “time immemorial”: see Goodman v Saltash Corporation (1882) 7 App Cas 633, 651-652, 654-655. This would seem to be analogous to proof of copyhold or other specialised customary rights and laws (discussed further below).
(c)Third, exclusive private rights to take fish could be established by prescription. However, in order to establish the relevant private right, the user had to show that it had been exercised contrary to the rights of the public from “time immemorial”, so as to create a fiction of a “lost grant” made by the Crown prior to Magna Carta: see discussion by Kirby J in Yarmirr HC at 128‑129; Merkel J in Yarmirr FC at 296 [540]-[541], 304-305 [587]-[591] and see British Columbia at 170-171. The issue of how custom or prescription from “time immemorial” might be established by evidence is considered further below.
(d)Fourth, the public right of navigation was not a right to cross every part of the sea: see Yarmirr HC at 67-68 [96]; Crown Estate Commissioners v Fairlie Yachts [1979] SC 156 at 178. The building of wharves and jetties, for example, was viewed as consistent with the right of navigation, rather than inconsistent with it. So too was the creation of ports and harbours – indeed, the right to create such ports and harbours and to assign their limits was another prerogative of the Crown: see Halsbury’s Laws of England (3rd ed) Vol 7 par 637. The Crown, or the person or body granted the rights to the port or harbour by letters patent from the Crown, could regulate navigation within the port or harbour. Although those using the port and its facilities had a “public” right to do so, the Crown or the person or body granted rights over it, could, at common law, impose reasonable charges for that use: see Bolt v Sennett (1800) 8 TR 606; 101 ER 1572; Allnutt v Inglis (1810) 12 East 527 at 538-539; 104 ER 206 at 210-211.
The above discussion concerns the foreshore. The same considerations apply in relation to the “arms of the sea” meaning estuaries and rivers capable of navigation and subject to the ebb and flow of the tide: see Miles v Rose (1814) 5 Taunt 705; 128 ER 868; R v Smith (1780) 2 Doug R 441 at 444, 446; 99 ER 283 at 284, 285; British Columbia.
The above discussion concerns the various rights and entitlements of the Crown and the public under the common law and the prerogative. Very different considerations apply in relation to grants made by or under legislation. There is no doubt that the Commonwealth Parliament has the legislative power to abrogate the public rights to fish and navigate in the foreshore and the rivers and estuaries of Blue Mud Bay. There is no doubt that it can create an exclusive right in the applicants to the land of the foreshore and the relevant rivers and estuaries including a right to exclude those seeking to fish or navigate there: see Harper at 330. As it was put by J Angell in Tide Waters (1826) at 106:
‘But it is conceived that there is an important distinction in such cases between royal and legislative grants. And although the king cannot alienate the public right of fishery, it being one of those rights inherent in his subjects, which he is not authorized to destroy, or restrain; yet it will not be denied, that parliament is vested with the power of alienation. Indeed it has been amply shewn, that an exclusive right of fishery may be acquired by prescription in an arm of the sea, which prescription is founded only on the supposition of a grant, and as the king cannot grant the fishery, the prescription must of course suppose a parliamentary grant. …. There can, in fact, be no question but that the legislative power may destroy a common right, by prohibiting the use of it entirely, or by converting it into an exclusive right. Thus a right of way, either by land or water, may be shut up by law, and the use of it prohibited and discontinued. So the public right of fishery in salt and tide waters may be interdicted altogether by the legislature, or converted into an exclusive or several fishery. The legislature, in fact, are the public, and no one can deny the authority of the public to relinquish what belongs to them, without at the same time denying that it does belong to them.
It being then too clear to admit of controversy that the legislature may grant an exclusive fishery in an arm of the sea, it would seem to follow, that a legislative grant of the soil, would carry with it the right of exclusive fishery.’
The question is, has the Commonwealth Parliament exercised its undoubted power to grant or to authorise the grant of an exclusive right over the tidal foreshore and the arms of the sea? That question is to be resolved by considering the relevant legislation – in this case the Land Rights Act - and the grant made pursuant to it. The relevant common law principles provide a background and context for the consideration of the meaning of the legislation and grant, but are not necessarily determinative: see Williams v Booth (1910) 10 CLR 341 (Williams) at 359; Wik Peoples v Queensland (1997) 187 CLR 1 (Wik) at 108, 149-154, 174-175, 195, 242-245; Wilson v Anderson (2002) 213 CLR 401, 450-452 [109]-[119], 462-465 [152]-[162]. It might be, for example, that if the terms of a statutory grant were ambiguous as to its seaward boundary, that boundary might be presumed to be the high water mark by reason of the public rights: cf Williams at 349-350. But that is not this case.
The Land Rights Act and the grant made pursuant to it, give to the Land Trust an estate in fee simple to the low water mark. If the issue was free of authority I would have thought that s 70 of the Land Rights Act excluded persons from the waters to the landward of the low water mark. If it were free of authority I would also have thought it reasonably clear that the land grant was a grant of a right of exclusive occupation over the area (including waters) to the landward of the low water mark including the arms of the sea and the tidal foreshore and that that right excluded public rights such as the public right to fish or the public right to navigate. In particular:
(a)The use of the term “fee simple” connotes the most absolute of all rights of tenure known to the law: Commonwealth v New South Wales (1923) 33 CLR 1 at 42. It connotes rights of “full ownership”: Fejo v Northern Territory (1998) 195 CLR 96 (Fejo) at 126. Such a right, “simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title”: Fejo at 126.
In England, the grant of a fee simple to the bed of the river may be subject to common law riparian rights: see Lyon v Fishmongers’ Company [1876] 1 AC 662 at 682-683. Whether or not the same rule would apply in Australia given the regulation of land and of water in this country is a matter that does not need to be resolved in these proceedings. Such Australian authority as there is would seem to assume that English law is applicable: see Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd (1966) 115 CLR 342 at 347-348.
Leaving aside the issue of riparian rights, on the face of it the conferral of a right of fee simple would include the right of exclusive possession of the land and the exclusive right to control and use the water and even the air immediately above it. As the majority of the High Court noted in Risk at 405 “there is nothing in the Land Rights Act which appears to limit the rights of the holder of an estate in fee simple in land granted under the Act to rights over only the solid substance of the earth’s crust, as distinct from those parts of the superadjacent fluid (be it liquid or gas) which can ordinarily be used by an owner.” (Contrast the terms of the lease in Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199 at 207, 216).
The grant made under the Land Rights Act is of a fee simple. It is difficult to imagine a more extensive property right than a fee simple granted by a Commonwealth statute. Such a property right is to be contrasted with the “fragile” right of native title holders which was recognised by the common law in Mabo. As Yarmirr establishes, a native title right of exclusive possession of the sea could not be recognised because it was inconsistent with the public right to fish and navigate. That provides no justification for concluding that a statutory grant of a fee simple should be limited for the same reason.
Even if the grant would otherwise be read as being subject to common law rights, this can only be done if the grant does not clearly exclude those rights. In my view the grant of a fee simple clearly does do so.
(b)The principle that a statute should be read subject to common law rights has much authority to support it. It must nevertheless be treated with caution. Many of the rights ascribed to the common law are, in fact, statutory in origin. And many “common law” rights were (properly) abolished hundreds of years ago. On this basis the rule of statutory interpretation is best considered as a rule protecting “existing” rights, whatever their source – the rule being based upon the assumption that the Parliament is not to be taken to have intended to abrogate existing rights unless it does so clearly: see Bropho v Western Australia (1990) 171 CLR 1 (Bropho) at 18.
Looked at in this way it is clear that the fact that there were ancient common law public rights to fish and navigate is not particularly important in itself in construing the Land Rights Act. The important questions are, what were the existing rights that might be affected by the grant and what can be assumed to be Parliament’s intent in that regard?
It seems to me that the answers to those questions are reasonably clear. Neither the public right to fish nor the public right to navigate have been thought appropriate for protection by Australian legislatures. The very opposite is the case. Both activities have been highly regulated:
(1)The control and management of the inter-tidal zone over much of Australia has been conferred on local councils and/or on port authorities by a variety of statutes including Crown Lands Acts, local government Acts and harbour Acts: see, for example the discussions in Burrum Corporation v Richardson & Gehmann (1939) 62 CLR 214; Marine Board of Launceston v Launceston Corporation (1955) 93 CLR 472; City of Rockingham v Curley [2000] WASCA 202; Auckland CC v Ports of Auckland Ltd [2000] 3 NZLR 614; AG v Ngati Apa at 663, 685; Lardil at [161]-[162],[222]-[225] and see Georgeski v Owners Corporation SP49833 [2004] NSWC 1096 at [77]-[90]. Invariably the relevant regulatory bodies have been given the power to control activities within that zone, including fishing and navigation. Reference can be made, for example, to the powers of the Darwin Port Corporation to make by-laws pursuant to s 48 of the Darwin Port Corporation Act (NT). The area of that port includes the sea and the foreshore to the high water mark: see the Ports Ordinance 1962 (NT) as amended. Nevertheless, in my view it is scarcely arguable that those powers should be read as being subject to public rights to fish and navigate;
(2)Fishing, and particularly commercial fishing, has been highly regulated by “special” statutes regulating the right to fish. The relevant legislation in its impact in the Northern Territory has already been discussed and will be further discussed later in these reasons.
(3)Rights in streams and rivers and in the waters thereof (including tidal waters) have also been heavily regulated in most jurisdictions, such regulation significantly affecting, if not abrogating, private riparian rights and other public rights in those waters: see Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317; Reid v Chapman (1984) 37 SASR 117.
In this context, to talk of existing public “rights” to fish and to navigate in Australia may be misleading. Indeed, such rights were effectively ignored by Australian law until they were resuscitated in a public law context in Harper and were subsequently applied in a native title context in Yarmirr. This is not surprising. Apart from a limited role in interpreting whether the boundary of a grant is the low or high water mark (see above), those public rights are best understood as restrictions on the Crown’s prerogative powers, rather than restrictions on statutory grants. The relevant prerogative powers have had no application in Australia since 1842: see Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533; Wik at 108-111, 139-143, 171-174, 227-228, 243. What is effectively left of these public law rights (if anything) are not enforceable common law “rights”, but rather the common law principle that a person can do that which is not prohibited (see Lange v Australian Broadcasting Commission (1997) 189 CLR 520 at 564). In most contexts this would mean that persons can engage in some non-commercial fishing and in some uncontrolled navigation on some coastal waters. The extent that persons can still do so it is simply the result of there being no law which would prevent them doing so.
Brennan J commented in Harper at 330 that the public right to fish was “freely amenable to abrogation or regulation by a competent legislature.” Although his Honour’s reasons for that view were somewhat different from mine, nevertheless the comment is plainly correct. Indeed, not only is the right to fish amenable to abrogation or regulation, it has been either abrogated or regulated in the Northern Territory (see below). If the issue were free from authority then in my view the grant of a statutory fee simple to the low water mark would abrogate the public rights to fish and navigate in the inter-tidal zone.
In any event, for the reasons given below, in my view the relevant public rights to fish and navigate had already been abrogated by the creation of the 1931 and 1963 Reserves over the same area.
(c)It would seem clear that the purpose and intent of s 70 of the Land Rights Act was to secure the rights of the traditional owners by limiting access to the land: see Gerhardy v Brown (1985) 159 CLR 70 at 117. Given this purpose I can think of no reason why the terms of s 70 should be read down so as not to apply to water (including sea water) over that land. The better view would seem to be that access is limited to “the land” including the water and air above it and the soil below it, at least to the extent that interference with the water, air or soil might interfere with the traditional rights of the inhabitants.
The history of access to the reserves that existed over the same area seems to me to confirm this view. The 1937 Reserve may not have included the inter-tidal zone, but s 19AA of the Aboriginal Ordinance 1918 (NT) prohibited unauthorised access in a vessel to the territorial waters adjacent to the reserve unless the person was an Aborigine or was otherwise authorised. Although the Commonwealth argued that the provision did not apply to the inter-tidal zone, that argument seems to me to miss the point entirely. What seems to be clear is that those making the Ordinance intended to limit access to the Reserve for the purpose of protecting the Aboriginal inhabitants living on it. That limitation included a limitation on access from the sea.
The boundary of the Arnhem Land Reserve created by the 1963 proclamation did extend to the “low water mark”. All unauthorised access to the area of the Reserve, including for the purposes of navigation and fishing, was prohibited: see s 45 of the Welfare Ordinance, 1953 (NT) and subsequently, s 17(3) of the Social Welfare Ordinance 1964 (NT). Given the beneficial purposes for which that reserve was established, it would seem to me to be clear that the prohibition on access extended to the water over the inter-tidal zone.
In my view the effect of the creation of the 1931 and 1963 Reserves in the context of the Ordinances then applying was to abrogate any public rights to fish or navigate in the inter-tidal zone. In those circumstances it does not seem to me that those rights should then be treated as “existing rights” for the purpose of interpreting either the land grant or s 70 of the Land Rights Act. I say this notwithstanding that the Commonwealth also submitted that in the Northern Territory the repeal of an Ordinance other than one giving effect to the law of a State had the effect of reviving the previous common law rule: see s 20 of the Interpretation Ordinance, 1931 (NT) and see Marshall v Smith (1907) 4 CLR 1617 at 1634. However, the question in issue is not the legal effect of the repeal of an Ordinance, but the broader question of what the Commonwealth Parliament intended when it enacted the Land Rights Act. Given that access to the inter-tidal zone for the purpose of exercising any public rights to fish or navigate had effectively been regulated, if not abrogated, since 1931, I cannot think why the Land Rights Act should now be interpreted on the assumption that the Parliament intended that those rights should be resuscitated so as to qualify and limit the grant of the fee simple title under the Land Rights Act. On the contrary, it seems to me that Parliament’s intent is relatively clear.
Finally, as already mentioned the Land Rights Act was a consequence of the Woodward Reports. It is unnecessary to set out the detail of the Reports. As already mentioned the Reports have been discussed in a number of cases. It is clear enough that the Parliament did not accept those parts of the Reports which recommended the creation of a “buffer zone” beyond the low water mark. However, the Parliament did appear to accept those parts of the Second Report dealing with the arms of the sea and the tidal foreshore. There is nothing in either of the Reports or more generally in the legislative history of the Land Rights Act which would suggest that the ordinary meaning of the words “fee simple” should be read down in relation to the arms of the sea or the tidal foreshore. Nor is there anything to suggest that s 70 of the Land Rights Act should be read down in its application to the inter-tidal zone. To the contrary, they confirm that the words should be read beneficially as intended to protect the interests of the traditional owners.
Given this history it would seem to me to be a reasonable conclusion that the Commonwealth Parliament, in making a grant of the fee simple described generally in the same terms as the 1963 proclamation and in expressly legislating in s 70 to prohibit access to the land, intended to abrogate any surviving public rights to fish and navigate in the inter-tidal zone.
Opinion of the expert in relation to the proposition as it applies to areas of the claim Professor
MorphyDr Cane Professor Sansom - landward of the low water mark. Agree Agree Agree - seaward of the low water mark. Agree Agree Agree Commonwealth and Northern Territory Proposition 5
In the vicinity of Blue Mud Bay, each individual clan’s estate includes an area of sea and seabed that is particular to that clan and no other clan.
Professor Morphy Dr Cane Professor Sansom Disagree with proposition as a general statement although there may be instances in which an individual clan’s estate includes an area of sea and seabed that is particular to that clan and no other clan.
Commonwealth and Northern Territory Proposition 6
In the vicinity of Blue Mud Bay, each clan’s individual estate includes an area of sea and seabed which is particular to that clan and no other clan and which:
(a)ordinarily extends at least one kilometre out to sea;
(b)ordinarily extends five kilometres or more out to sea;
(c)at least in some cases, extends ten or more kilometres out to sea.
Professor Morphy Dr Cane Professor Sansom Unable able to answer as the proposition is not in a form which allows for a response based on the anthropological material. The experts note that their mutual understanding of the claim area is that that area does not extend more than 10km out to sea.
Claimants Proposition 8
Under the traditional* laws acknowledged and traditional* customs observed by the claimants the estate areas of a clan may include areas of land and waters in which rights and interests are vested in that clan separately, and areas of land and waters in which rights and interests are vested in that clan and another clan or clans of the same moiety, and in the claim area the clan estate areas include:
(a) areas of land and waters in which the rights possessed by the claimants under the traditional* laws acknowledged and traditional* customs observed by them are vested in an individual clan by virtue of its relationship to the wangarr#, madayin# and garma# associated with such areas being distinct from that of other clans (‘separate clan estate areas’);
(b) areas of land and waters in which the rights possessed by the claimants under the traditional* laws acknowledged and traditional* customs observed by them are vested in more than one clan of the same moiety by virtue of the relevant clans’ relationship to wangarr#, madayin# and garma# associated with such areas being shared by or held in common with more than one clan of the same moiety
Opinion of the expert in relation to the proposition as it applies to areas of the claim: Professor
MorphyDr Cane Professor Sansom - landward of the low water mark. Agree Agree Agree - seaward of the low water mark. Agree Agree Agree Claimants Proposition 9
The clans’ estate areas include, within the claim area, areas of land and waters that are:
(a) separate clan estate areas of one clan;
(b)clan estate areas shared by or held in common with more than one clan of the same moiety; and
in the case of off shore areas of sea and seabed, such areas include:
(i)areas contiguous with or adjacent to the onshore estate areas of a clan’s estate;
(ii)areas that are not contiguous with or adjacent to the onshore areas of a clan’s estate; and
these off shore areas are held by the clans, in some cases, separately, and in other cases, shared or held in common by more than one clan of the same moiety.
Opinion of the expert in relation to the proposition as it applies to areas of the claim: Professor
MorphyDr Cane Professor Sansom - landward of the low water mark. Agree Agree Agree - seaward of the low water mark. Agree Agree Agree
Claimants Proposition 10
The whole of the land and waters of the claim area is made up of the estate areas of the clans making up the claim group.
Opinion of the expert in relation to the proposition as it applies to areas of the claim: Professor
MorphyDr Cane Professor Sansom - landward of the low water mark. Agree Agree Agree - seaward of the low water mark. Agree Agree Agree
Claimants Proposition 11
Under the traditional* laws acknowledged and traditional* customs observed by the claimants, members of clans have rights and interests in the estate of their own clan and have reciprocal rights and interests in the estates of other clans to which they have close kinship relations, including:
(a) their mother’s clan
(b) their mother’s mother’s clan;
(c) their spouse’s clan;AND SUCH RECIPROCAL RIGHTS AND INTERESTS EXTEND TO MEMBERS OF OTHER CLANS:
(D)WITH NEIGHBOURING ESTATE AREAS;
(E)WITH RELATED WANGARR# AFFILIATIONS AND RITUAL AUTHORITY;
and such reciprocal rights and interests in the estates of other clans are subject to the rights and interests of the members of those other clans.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 7(a)
Under the body of laws and customs referred to in proposition 1 above:
each member of a clan ordinarily has the right to have free access to the clan’s estate and use of its natural resources (subject to certain restrictions, e.g. concerning the closing off of areas following the death of a clan member; or concerning particularly sacred or dangerous places which may not ordinarily be visited);
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Claimants Proposition 12(a)
Under the traditional* laws acknowledged and traditional* customs observed by the claimants:
each member of a clan has the right to access the clan’s estate areas and to use the property and resources of the clan’s estate subject to certain restrictions that arise in accordance with those traditional* laws and customs;
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 7(b)
Under the body of laws and customs referred to in proposition 1 above:
a person who is not a member of the relevant clan must not enter that clan’s estate or use its natural resources without having the permission (express or tacit) of a senior clan member or, if such a person is absent, a person to whom the responsibility to look after the clan’s estate has fallen;
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Claimants Proposition 12(b)
Under the traditional* laws acknowledged and traditional* customs observed by the claimants:
a person who is not a member of the relevant clan must not enter that clan’s estate areas or use the property and resources of the clan’s estate without having the permission (express or implied) of senior clan members or the persons to whom, in accordance with those traditional* laws and customs, the responsibility to look after the clan’s estate has fallen;
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 7(c)
Under the body of laws and customs referred to in proposition 1 above:
permission to enter a clan’s estate and use its natural resources will ordinarily be tacit (i.e. ordinarily may be assumed) in certain cases, specifically in the case of non-clan members who have a requisite kin relationship to members of the clan in question;
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Claimants Proposition 12(c)
Under the traditional* laws acknowledged and traditional* customs observed by the claimants:
permission to enter another clan’s estate areas and to use the property and resources of another clan’s estate may be implied or expected in certain cases, especially in the case of non-clan members who have a close kinship relationship to members of the clan in question, but such permission is capable of being withdrawn in certain circumstances in accordance with those traditional* laws and customs;
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 7(d)
Under the body of laws and customs referred to in proposition 1 above:
the senior clan member (or, if the senior clan member is absent, the person to whom the responsibility to look after the clan’s estate has fallen) has the right to grant, refuse and withdraw permission to enter the clan’s estate or use its natural resources to people who are not members of that clan, thereby controlling the access of others to the clan’s estate;
Professor
MorphyDr Cane Professor Sansom Disagree Disagree Disagree. Radcliffe Brown proposed a “headman and deputy” model for clan authority in Aboriginal Australia. This model is discernible in the writings of Nancy Williams on permission among Yolngu. However, the model is not compatible with writings on consensual decision making and political process including the work of Keen on Yolngu and therefore the expert agrees that the “headman and deputy” model should not feature in the propositions that come out of the conference of experts.
Commonwealth and Northern Territory Proposition 7(e)
Under the body of laws and customs referred to in proposition 1 above:
only the senior clan member (or, if the senior clan member is absent, the person to whom the responsibility to look after the clan’s estate has fallen), and not any other person, has the right to grant, refuse and withdraw that permission;
Professor
MorphyDr Cane Professor Sansom Disagree Disagree Disagree. Radcliffe Brown proposed a “headman and deputy” model for clan authority in Aboriginal Australia. This model is discernible in the writings of Nancy Williams on permission among Yolngu. However, the model is not compatible with writings on consensual decision making and political process including the work of Keen on Yolngu and therefore the expert agrees that the “headman and deputy” model should not feature in the propositions that come out of the conference of experts.
Claimants Proposition 12(d)
Under the traditional* laws acknowledged and traditional* customs observed by the claimants:
senior clan members or the persons to whom, in accordance with those traditional* laws and customs, the responsibility to look after the clan’s estate has fallen, have the right to grant, refuse and withdraw permission to enter the clan’s estate areas and to use the property and resources of the clan’s estate to people who are not members of that clan, thereby controlling the access of others to the clan’s estate and estate areas;
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 7(f)
Under the body of laws and customs referred to in proposition 1 above:
clan members, together with other persons with rights and interests in the estate, have the right to make any and all decisions about the clan’s estate (including decisions to close off areas of the clan estate following the death of a clan member or someone closely connected to the clan, with the result that no person may enter the area so closed). The particular set of persons involved in decision making will depend on the nature of the decision to be made;
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Claimants Proposition 12(e)
Under the traditional* laws acknowledged and traditional* customs observed by the claimants:
senior clan members, in association with other clan members and those other persons who, in accordance with those traditional* laws and customs, have rights and interests in the clan’s estate, have the right to make decisions about the clan’s estate;
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 7(fa)
Under the body of laws and customs referred to in proposition 1 above:
all members of the Yolngu cultural bloc have interests in important creation sites (whether or not such sites fall within a clan’s estate) and, as such, have the right to participate in the making of important decisions about those sites.
Professor Morphy Dr Cane Professor Sansom Disagree Disagree Disagree
Claimants Proposition 15
In relation to the estates of clans other than their own and to which they have close kinship relations, the rights and interests that are possessed by the claimants under the traditional* laws acknowledged and traditional* customs observed by them include,
(a)the right to the legitimate expectation* of access to and use of the resources of the estate;
(b)the right to take designated roles and perform designated responsibilities in the ceremony relating to the estate;
(c)the right to take designated roles in the management of the estate and in the making of decisions that affect the estate;
in accordance with the traditional* laws acknowledged and traditional* customs observed by the claimants that govern the exercise of those rights.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 7(g)
Under the body of laws and customs referred to in proposition 1 above:
in decisions making processes of the kind referred to at 7(f) above, people have to defer to the authority of senior clan members and those other senior persons who have rights and interests in the clan’s estate, which authority is only acquired over time.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Claimants Proposition 12(f)
Under the traditional* laws acknowledged and traditional* customs observed by the claimants:
in making decisions that affect the clan’s estate, less senior clan members ordinarily defer to the authority of senior clan members and those other senior persons who, in accordance with those traditional* laws and customs, have rights and interests in the clan’s estate.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 8
Insofar as a clan’s estate includes an area of sea and seabed which is particular to that clan and no other clan, each proposition in [Commonwealth and Northern Territory Proposition] 7 above is equally true of sea and seabed within a clan’s estate as it is of dry land within a clan’s estate.
Professor Morphy Dr Cane Professor Sansom Agree in relation to 7(a), (b), (c), (f) and (g). Agree in relation to 7(a), (b), (c), (f) and (g). Agree in relation to 7(a), (b), (c), (f) and (g).
Commonwealth and Northern Territory Proposition 8A
Insofar as there are areas of sea and seabed that are both:
(a)within the claim area but outside of the estate of any one particular clan; and
(b)the subject of rights and interests under the body of laws and customs referred to in proposition 1;
(hereafter called ‘sea country’) those rights and interests are not the same as rights in terrestrial estates but are sui generis, in that sea country cannot be divided into discrete blocks owing to the fact that multiple clans, or members of multiple clans, may have similar or the same rights and interests in any particular area of sea country.
Professor Morphy Dr Cane Professor Sansom Disagree Disagree Disagree
Claimants Proposition 13
Each of the propositions referred to at 12 (a) – (f) apply to the seeking, granting, refusal, expectation and withdrawal of permission in respect of entering separate clan estate areas and conjoint estate areas and to using the property and resources of the clans’ estates, and in the case of joint clan estate areas, under the traditional* laws acknowledged and traditional* customs observed by the claimants:
(a)each member of each relevant clan has the right to access a joint clan estate area and to use the shared property and resources of the relevant clans’ estates relating to a joint clan estate area subject to certain restrictions that arise in accordance with those traditional* laws and customs;
(b)a person who is not a member of one of the relevant clans must not enter a joint clan estate area or use the shared property and resources of the relevant clans’ estates relating to a joint clan estate area without having the permission (express or implied) of senior members of the relevant clans or the persons to whom, in accordance with those traditional* laws and customs, the responsibility to look after the relevant clans’ estates has fallen;
(c) permission to enter a joint clan estate area and to use the shared property and resources of the relevant clans’ estates relating to a joint clan estate area may be implied or expected in certain cases, especially in the case of persons who are not members of one of the relevant clans but who have a close kinship relationship to members of one of the clans in question, but such permission is capable of being withdrawn in certain circumstances in accordance with those traditional* laws and customs ;
(d)senior members of the relevant clans or the persons to whom, in accordance with those traditional* laws and customs, the responsibility to look after the relevant clans’ estates has fallen, have the right to grant, refuse and withdraw permission to enter a joint clan estate area and use the shared property and resources of the relevant clans relating to a joint clan estate area to people who are not members of one of the relevant clans, thereby controlling the access of others to joint clan estate areas and to the shared property and resources of the relevant clans relating to joint clan estate areas;
(e)senior members of the relevant clans, in association with members of those clans and those other persons who, in accordance with those traditional* laws and customs, have rights and interests in the relevant clans’ estates, have the right to make decisions about a joint clan estate area and the shared property and resources of the relevant clans relating to a joint estate area;
(f)in making decisions that affect a joint clan estate area and the shared property and resources of the relevant clans relating to a joint estate area, less senior clan members ordinarily defer to the authority of senior members of the relevant clans and those other senior persons who, in accordance with those traditional* laws and customs, have rights and interests in the relevant clans’ estates.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 9
a) The politics of succession are conducted with regard to rules that set limits to the possible outcomes in any instance;
b) Unlike rules of inheritance which unambiguously identify heirs among the surviving kin of the deceased (if there be such surviving kin), rules of succession delimit a range of possible successors;
c) The most restricting rule limits succession to same-moiety succession. This is because the madayin# of an estate (which are inherited and regarded as being consubstantiate with their inheritors) cannot change moiety or be owned by people of the opposite moiety.;
d) The candidates for succession are members of same-moiety clans proximate to the estate of the extinct clan who, in addition, can claim knowledge of the deceased clan estate in all its aspects (i.e. land, sacra and immaterial properties). There is a preference for the extinct clan’s estate to be succeeded to by members of a clan in a gutharra relationship;
e) Candidates for succession may be advantaged if they share in Dreamings with the extinct clan and are therefore located on a Dreaming track that links their own estate with the deceased estate of the extinct clan;
f) Successors must always come to command relevant sacred knowledge concerning the clan estate;
g) Following the extinction of a clan there follows an intervening period during which the outcome of the succession process remains uncertain; for the duration of this period, the deceased estate (together with its appurtenances) is looked after by trustees who should also be persons who hold the sacred knowledge in relation to the estate;
h) Trustees must (inter alia) pass on relevant sacred knowledge to successors; at times, trustees may have to wait to pass on knowledge until potential successors become adults and pass through appropriate ceremonies;
i) To be completed, succession requires regional consensus, an absence of dissenting voices in a relevant regional community where the extent of the relevant regional community is not pre-determined, its size and nature being a product of politics;
j) Succession is complete when the succeeding clan is accepted as full owner of the clan estate, as in receipt of the madayin# of the clan estate from the trustee and has full rights to deploy the clan symbols, paint the clan designs etc.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 10
The body of laws and customs referred to in proposition 1 above includes rules of succession that apply when a clan becomes extinct, specifically, rules that govern the succession, from the extinct clan to another clan, of the rights and obligations in relation to a clan estate.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 10A
Rules and processes governing historical recall do not ordinarily promote the retention of memory of an event of fission or fusion of clans or of an event of succession to the estate of an extinct clan.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 11
The claimants and their ancestors have physically resided in the vicinity of Blue Mud Bay without substantial interruption since 1788.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 12
The body of laws and customs referred to in proposition 1 above is very similar in the present day to how it was at the beginning of intensive European settlement in Arnhem land in the 1920s and 1930s.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 13
The body of laws and customs as they were in the 1920s and 1930s is more likely than not to have had a continuous existence since 1788, allowing for some change and adaptation to changing circumstances.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 13A [13B – 14A omitted]
13A.The body of laws and customs relating to succession has been continuous since 1788.
Professor Morphy Dr Cane Professor Sansom Agree Agree Agree
Commonwealth and Northern Territory Proposition 15
Under the body of laws and customs referred to in proposition 1 above, are there rules that confer rights and interests in those parts of the sea and seabed of Grindall and Myaoola Bays that are outside the estates of individual clans?
Professor Morphy Dr Cane Professor Sansom No No No
Commonwealth and Northern Territory Proposition 16-18
If your answer to question 15 is ‘yes’, please answer the following additional questions.
16. Is all of that sea and seabed (i.e. that is outside the estates of individual clans) equally subject to exactly the same rights and interests throughout, or can that sea and seabed be divided into zones in respect of which there are different rights and interests?
Professor Morphy Dr Cane Professor Sansom Answer not required
17. If the answer to 16 above is yes, please describe the physical characteristics of each and every zone including, if possible, roughly how far out to sea the zone is.
Professor Morphy Dr Cane Professor Sansom Answer not required
18. If the answer to 16 is ‘yes’, in respect of each zone:
(a)who holds rights and interests there?
(b)what is the content of those rights and interests? e.g. are they usufructary? do they encompass the right to grant or refuse permission to access or use the sea and seabed?
(or alternatively say if reliable answers to these question cannot be given on the present state of anthropological knowledge of the claim area).
Professor Morphy Dr Cane Professor Sansom Answer not required
Claimants Proposition 14
The rights and interests that are possessed by the claimants under the traditional* laws acknowledged and traditional* customs observed by them include, in relation to estates of their own clan:
(a) the right of clan members to possess, occupy, use and enjoy the clan’s estate to the exclusion of others;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes The opinion of the expert is that this proposition cannot be responded to as it is not a proposition of anthropology.
(b)the right of clan members to be recognised as the traditional* Aboriginal owners of the clan’s estate;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes Yes
(c) the right of senior clan members, in association with other clan members, to speak for and make decisions about the clan’s estate;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes Yes
(d) the right of clan members to have access to the clan’s estate and to use its property and resources;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes Yes
(e)the right of clan members to share, exchange and trade the property and resources of the clan’s estate, and the right of senior clan members to receive a portion of resources taken from the clan’s estate;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes. Yes. Yes except that the expert has reservations about the concept of “trade”.
(f)the right of senior clan members, in association with other clan members, to grant, refuse and withdraw permission for people to enter the clan’s estate areas and to use the property and resources of the clan’s estate for any purpose, thereby controlling the clan’s estate;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes Yes
(h)the right of clan members to control the use and enjoyment by others of the property and resources of the clan’s estate;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes Yes
(i)the right of clan members to protect areas of importance, including sacred sites and areas of religious significance, and to exclude the access of others to such areas and sites;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes Yes
(j)the right of senior members to conduct ceremony and to control access to ceremonial grounds and phases of ceremonial performance;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes Yes
(k)the right of clan members to close off areas within a clan’s estate; for example, following the death of a clan member or someone with close kinship relationships to the clan;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes Yes
(l)the right of clan members to receive, protect, transmit and use knowledge associated with the madayin# and garma# of the clan;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes Yes
(m)the right of clan members to introduce non-clan members to the clan’s estate areas;
Is this proposition consistent with the opinion of the expert as to the anthropological material? Professor Morphy Dr Cane Professor Sansom Yes Yes Yes
in accordance with the traditional* laws acknowledged and traditional* customs observed by the claimants that govern the exercise of those rights.
APPENDIX 2
Extracts from Witness Statement of Gawirrin Gumana (A 26)
Rights and interests in country under Yolngu law
39Under Yolngu law, Dhalwangu people own all the places and things in Dhalwangu country – they do not just own the wangarr places. They own the sand, the soil, the rocks and stones, the ochre, the waters, the animals, the fish and other water creatures, the trees, the plants and the grasses. There are many billabongs on Dhalwangu country. Under Yolngu law, these billabongs and whatever is in them are owned by Dhalwangu people. There are many small creeks on Dhalwangu country, for example the creek that enters the sea at Yilili (101). Many of these creeks start and finish on Dhalwangu country. They flow in the wet season. During the dry season there are waterholes, but much of the creek bed is dry. Under Yolngu law, the creeks in Dhalwangu country, including their beds, the creek waters and the waterholes and whatever is in them are owned by Dhalwangu people. This also applies to each of the countries for which I am entitled to speak and generally to the countries within the claim area.
40Some bigger creeks and rivers cross the country of different landholding groups before entering the sea. An example of this is the Baraltja River, which has already been referred to. This river starts inland and crosses the countries of different groups, including the Dhalwangu clan, in the vicinity of the Gängan community. As the river crosses Dhalwangu country, the bed, banks, waters and resources of the river belong to Dhalwangu. Downstream, the waters of this river flood into the countries of Yakutja (55) and Baraltja (63), where they mix with the salt water and become Widiyarr. In these countries, the land itself, the waters and whatever is in them belong to Dhalwangu and Madarrpa together. The flow of water out into Jalma Bay also belongs to these clans, as does the seabed beneath it. On either side of Jalma Bay, Widiyarr joins the Dhuwa Mumuthun waters, which are related to the travels of the Djan’kawu Sisters.
41Under Yolngu law, the whole of the area between high tide and low tide is owned by the clan that owns the land. Some Dhalwangu land is on the coast of northern Blue Mud Bay. For the whole of this coastline, the area between high tide and low tide is owned by Dhalwangu people. We use this area to find shellfish and crabs and for fishing with a line or a wire spear. This also applies to those countries for which I am entitled to speak and generally to the countries within the claim area.
42Under Yolngu law, the sea below low tide is almost always owned by the clan that owns the adjoining land. This is true of Dhalwangu country in northern Blue Mud Bay. The sea country below low water mark usually includes the nearby named reefs, rocks and sandbanks. For example, Dhalwangu country includes the offshore rocks at Bati’wuy (104) known as Yinidhamatji, {Yinitjuwa}, Guthitjpuy and Galkama. The last three of these are the names of three of my sisters. The deeper sea beyond the reefs is still Yolngu, but it belongs to several clans. In the Garrapara area, it is Mungurru, belonging to the Dhalwangu, Manggalili and Madarrpa clans. This also applies to those countries for which I am entitled to speak and generally to the countries within the claim area.
43……..
Entry to and use of the claim area by strangers and others
44I believe that it has always been part of Yolngu law that strangers must ask permission before they enter or use our land or sea country. When I was a young boy growing up in the bush, groups that were not close countrymen sometimes met up. An example of this is people from Groote Eylandt or Bickerton Island coming across to Blue Mud Bay or people from Blue Mud Bay going across there. I have seen this happen. Either way, the visiting group would light a signal fire on an island along the way to let the other group know that they were intending to come over. Today, people generally use the telephone, but it is the same thing. When I was growing up, groups would sometimes be invited to attend ceremonies. This was often done by letterstick, which was delivered by a messenger. The letterstick gave the other group permission.
45The Yolngu rule is that people without close connections to country and knowledge of it must get permission from the landowners before entering the country or using its resources. The rule applies to both land and sea country. It applies to both Aboriginal and non-Aboriginal people. The same sort of rule would apply to me if I were visiting places such as Groote Eylandt, Bickerton Island or Numbulwar. If I were at any of these places, I would not go into the bush for hunting or some other reason without getting permission from the local land-owners. Nor would I go fishing without getting permission. If I owned a big boat and fishing nets (which I don’t) and took it across to Groote Eylandt or Bickerton Island or down to Numbulwar and started using the nets, it would be bound to get me into great trouble with the local people. It would be a breach of their law. It’s the same thing in Blue Mud Bay.
46Before any person is permitted to use our country, they must be aware of where they are entitled to go and where they are not entitled to go. They must be aware of how they should behave, how they should respect the country. Strangers are not permitted to roam around our country unaccompanied. We want to know exactly what it is that a stranger has in mind before deciding whether or not to agree. The same is true for any Yolngu person who does not know and have close connections to the country.
47When a stranger is taken out hunting for the first time, experienced hunters will often put their sweat on him or her or call out the names of old people. The country knows the sweat and the voices of experienced hunters. By doing this, the country is introduced to the new person, who should now be safe in the country. This does not just apply to non-Aboriginal people. It applies to young Yolngu people who are going to places for the first time.
48Close relations who know the country are permitted to go hunting in our country, although often they will tell us before they go. If Djambawa Marawili or his brothers …..wished to go hunting or fishing at Garrapara (92) or even camping there overnight, I would have no objection. I would not expect to be asked in advance, although it might come up in conversation. However, if Djambawa or Baluka wished to take a group of schoolchildren or a group of tourists there, I would expect to be asked and have no doubt that I would be asked for permission.
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