Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors
[2007] HCATrans 722
•5 December 2007
[2007] HCATrans 722
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D7 of 2007
B e t w e e n -
NORTHERN TERRITORY OF AUSTRALIA
First Appellant
DIRECTOR OF FISHERIES (NT)
Second Appellant
and
ARNHEM LAND ABORIGINAL LAND TRUST
First Respondent
NORTHERN LAND COUNCIL
Second Respondent
GAWIRRIN GUMANA, DJAMBAWA MARAWILI, MARRIRRA MARAWILI, NUWANDJALI MARAWILI, DAYMAMBI MUNUGGURR, MANMAN WIRRPANDA AND DHUKAL WIRRPANDA (ON BEHALF OF THE YARRWIDI GUMATJ, MANGGALILI, GUMANA DHALWANGU, WUNUNGMURRA (GURRUMURU) DHALWANGU, DHUPUDITJ DHALWANGU, MUNYUKU, YITHUWA MADARRPA, GUPA DJAPU, DHUDI DJAPU, MARRAKULU 1, MARRAKULU 2, AND NURRURAWU DHAPPUYNGU (DHURILI/DURILA) GROUPS)
Third Respondents
NORTHERN TERRITORY SEAFOOD COUNCIL
Fourth Respondent
COMMONWEALTH OF AUSTRALIA
Fifth Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 5 DECEMBER 2007, AT 10.17 AM
(Continued from 4/12/07)
Copyright in the High Court of Australia
__________________
GLEESON CJ: Yes, Mr Walker.
MR WALKER: May it please the Court. Yesterday I was asked questions about sacred sites. In volume 2 of the appeal book, starting at page 356 in the findings and reasons at first instance, Justice Selway in paragraphs 221 and 222 refers to evidence and makes findings of fact concerning the djalkiri sites. It is critical to note at the beginning of paragraph 222 that nine of those sites, which are associated with the beings from which the Yolngu believe that the land, all that is on it and they themselves are derived, nine of them were identified in the waters and tidal foreshore within the claim area.
At pages 371 to 372 his Honour proceeded in legal analysis in paragraph 244 to draw some implications from those findings of fact in light of the Native Title Act and the Northern Territory (Aboriginal Sacred Sites) Act to which I referred yesterday and your Honours will see, without me reading it, that there is reference to the suite of criminally sanctioned prohibitions in the Northern Territory legislation at line 12 or so on page 362. In particular, may I emphasise section 33. That is accurately paraphrased by his Honour. It uses, and not accidentally, the same expression as we have seen in sections 69 and 70 of the Land Rights Act, namely, the prohibition is on entering or remaining.
There is also a prohibition against carrying out work, section 34, or desecrating, section 35. For present purposes we add this material to the argument with such force as it may have, that in understanding the Land Rights Act the identical wording of sections 69 and 70 in the key prohibition against entering or remaining has been echoed in the so-called reciprocal or complementary legislation which in relation to section 69 is the Northern Territory Sacred Sites Act where exactly the same expression is used, “enter or remain”.
In our submission, when it is in the nature of things, sacred sites may be, depending upon the state of the tide during a day, either covered or uncovered, that is, covered with water or not covered with water, being tidal waters, that enter or remain must purposely be read so as to include conduct involved by floating in a vessel over the top of the seabed while it is covered by water just as surely as it is involved in stepping onto the foreshore when it is not covered by the tidal waters.
KIEFEL J: Mr Walker, does the Sacred Sites Act not contain its own offence provisions?
MR WALKER: It does.
KIEFEL J: So they are duplicated then under the Aboriginal Land Rights Act?
MR WALKER: Yes. Those are the ones that I just drew to attention. Sections 33, 34 and 35 are from the Northern Territory Act.
KIEFEL J: And they are in identical terms to section 69 ‑ ‑ ‑
MR WALKER: Yes. Your Honours will remember that there is that curious heading - I am at a loss entirely to explain the use of the word “reciprocal”, but in the various travaux and in some of the case law you will have picked up the epithet “complementary”. When I come to put my argument about section 74 and the closing words or proviso of section 73(1) of the Land Rights Act, I will complete what I want to say about the envisaged linking, matching or congruence of the Commonwealth legislation and the then prospective Northern Territory legislation.
KIEFEL J: Could you just remind me, under the Sacred Sites Act, is the identification of a site by way of declaration an identification on a map?
MR WALKER: That is one of the ways. There are different provisions which affect both proof of and to a degree liability to criminal sanction depending whether the sacred site has been, as it were, designated by formal record or whether it is simply a matter of fact to be proved ad hoc.
KIEFEL J: From recollection, a difficulty is that a sacred site is sometimes identified by reference to myth and it is sometimes rather nebulous.
MR WALKER: If by that your Honour in particular means it is difficult to ascribe metes and bounds to it, yes.
KIEFEL J: Yes, exactly.
MR WALKER: Yes, is the short answer, which will defeat in most cases an attempt to prosecute ‑ ‑ ‑
KIEFEL J: To describe it, yes.
MR WALKER: ‑ ‑ ‑ for entry or remaining. That is in the nature of things.
GLEESON CJ: Mr Walker, just before you leave Justice Selway, I notice that on page 326 in paragraph 89 he says, really, no question about public right to navigate arises in this case partly because there is no evidentiary foundation for the proposition of navigability. Some reference has been made in argument to public rights to navigate, but is it the case that we do not have to decide anything about public rights to navigate?
MR WALKER: Yes, that is, you do not have to decide it. My learned friend, Mr Jackson, in opening the appeal referred in general terms to matters that may or may not arise and it is certainly true that there was evidence of purported licences under the Fisheries Act which makes the fishing point a matter for decision, but there was not analogous evidence in relation to either actions of or threats to navigate in particular the tidal rivers.
In the map that Mr Jackson showed you yesterday you will recall he drew to attention the long passage of tidal waters in the Limmen Bight River. Now, that is not part of the claim area here but it was an example my learned friend took you to. One can imagine ‑ ‑ ‑
GUMMOW J: Volume 1, page 151?
MR WALKER: Yes, may it please your Honours. Now, I stress that is not part of the land in question here, but I am going to it because my friend did, and it is an example of a common geographical feature of Arnhem Land, that is, tidal waters of rivers extending many kilometres inland, many kilometres therefore within, in the case of Aboriginal land, the boundary formed by the mean low‑water mark plus the straight lines across mouths of rivers, and your Honours can readily imagine the consternation which would be caused if there were a threat, let alone actual carrying out of the action of navigating without my clients’ permission up those rivers. That is not in controversy in this case.
I refer to it in particular because it must follow from a deal of the propositions that my learned friend, Mr Jackson, advanced that his clients’ position cannot observe any distinction between the effect of the so-called public right of fishing and the effect of the public right of navigation so as to authorise what my clients would plainly call most destructive incursions onto Aboriginal land.
GLEESON CJ: I think Justice Selway, however, thought there was a big difference between the right to fish and the right to navigate because he said that in most parts of Australia the right to fish has been comprehensively taken over by legislation for a long time.
MR WALKER: Quite, and, as your Honours know, in ways that I have not finished elaborating, we rely upon that state of affairs which was both comprehensive in relation to commercial fishing and of very long standing not only at the times of the former system of Aboriginal reserves that the Land Rights Act replaced and enhanced, but also at the time of the Land Rights Act itself being the product of the legislative compromise which it has been described as constituting.
GLEESON CJ: Another small factual matter, there was reference in argument yesterday on a couple of occasions to mud crabs. Just at the moment, and being very uninformed about the process, I am not quite sure how you can get mud crabs without going onto the subsoil, the sand or the mud or whatever it is.
MR WALKER: Your Honour says the subsoil, your Honour means the uncovered solid material.
GLEESON CJ: It is uncovered during the receding of the tide.
MR WALKER: That is what the Americans call tide lands. Until we do a really good job of spoiling the planet, they are going to be covered and uncovered more or less predictably. And, yes, we have nothing to offer to your Honour, either personal knowledge from counsel or from the general knowledge of the community as to how you catch a mud crab without touching the ground.
GLEESON CJ: Without going onto that, yes.
MR WALKER: Either you or some part of an apparatus which conveys you, not least, of course – I do not understand them to be a docile or easily herded animal, pots or traps are used and they have to be placed on the ground, obviously, because they are not aerial either.
Your Honours, may I then move to the sequence of the provisions I listed yesterday in the Land Rights Act around which we wish to construct our argument. The starting point, though there are many which could be attempted, in deference to the way our learned friends have put it, will be that section 10, by now a provision well familiar in this argument, the lands in question in this case are Schedule 1 lands, Arnhem Land islands and mainland.
Your Honours are familiar with the notion that there is after an investigation of the merits of the claims of the connection a recommendation under section 10 and we draw to attention in subsection (2)(b) the case that arises where after the investigations it appears that:
a person (other than the Crown) has an estate or interest in the whole or a part of that land –
May I draw to attention that it is an estate or interest, it is proprietary. The public rights of fishing at common law, non-existent as they were at the time and at the place in question, nonetheless being described in the abstract are not proprietary.
So the outstanding estate or interest provision, which is a key part of the system of grants set up by this Act, leaves out of account anything which is not an estate or interest. The Minister is obliged to recommend, upon those matters being the case, that there be a grant in escrow. Your Honours see that the condition constituting the escrow is that there not be a delivery of the grant until those interests have come to an end. Your Honours see that in the last lines of subsection (2). There are, as was drawn to attention yesterday, particularly by my learned friend Ms Perry, similar provisions to like functional effect in section 11.
I now move to section 12, which is what follows either immediately, in the case of land where there are no outstanding interests, or after fulfilment of the condition in the case of grants held in escrow – see subsection (1)(b) – and the reference to a recommendation under subsection 10(2), to which I have just taken your Honours. In section 12(3)(a) there is the mandatory requirement – I stress mandatory, not optional, by contrast with some Torrens provisions around the world – for an expression, that means by explicit words, of exclusion from the grant of a road over which the public had at that time a right of way. There is a public non‑proprietary right and it is the subject of an express carefully measured provision for its explicit reference in these grants.
HAYNE J: That is to deal with circumstances of the kind dealt with by Justice Windeyer, I think, in Permanent Trustee Co v Municipality of Campbelltown 34 ALJR, particularly at page 263 and following, where his Honour refers to, I think, what would otherwise be the rule that the ownership of the soil over which the public highway runs vests in the owner.
MR WALKER: Yes, the common law, which had its own ad medium filum, for example, where the road was expressed to be a boundary between two parcels.
HAYNE J: What is the point that you derive from (3)(a)?
MR WALKER: What I derive from that is that there is here specific recognition of a public right of way – this is not just about ownership of soil, it is also about the right of way; see that expression repeated in paragraphs (a) and (b) of subsection (3)(a), as being referred to rather than simply existing as a matter of law, in the grant. In subsection (4) your Honours see that the delivery of the deed of grant takes effect according to one of the two possible cases – that is immediately or after the escrow has been satisfied. Then in subsection (5), as attention has already been noted, there is the obligation to register the deed and otherwise deal with that deed of grant under the law concerning the registration and transfer of land according to its tenor.
Justice Gummow yesterday made inquiry in light of the, I think, complete absence from the considerations to date in this case of those laws. We have made available extracts from the three pieces of legislation which may be appropriate to consider in terms of the legislative history and the current state of affairs. They are the reprint as at 1965 of the Real Property Act and Ordinance; the Real Property Act as in force at 1 August 1995 and now the Land Title Act 2000, which repealed those. In the last of those, which of course is long after the event of the enactment of the provisions in question in this case, may I simply note that there are transitional provisions in Part XII that we have reproduced for your Honours which seek to apply to already registered instruments all the provisions of the new Land Title Act – see section 215 in particular.
Generalising about those registered title legislative provisions we make the following propositions about the certificates of title in this case. I cannot explain why but they are not in your appeal books.
GUMMOW J: We had to scrounge to get them in Risk, too, I remember.
MR WALKER: You have the deeds of grant to which I think all of us have made reference in our written submissions. The actual registered certificate of title, or authorised copies thereof, were in evidence in the proceedings. Your Honours will recall that the Native Title Act and the Land Rights Act proceedings were heard together with evidence the one being evidence in the other and the application in relation to the native title part of the proceedings annexed those certificates of title. We have thus made them available to your Honours and they reflect, as do the deeds of grant that you have already seen in the appeal books, in particular the mandatory requirements to which I have drawn attention, namely, reservations including of various roads. There is nothing else to which we wish draw attention in the form of those certificates of title.
That brings me next to a provision I did not note yesterday but which becomes relevant in trying to understand what, if any, significance there is concerning the provisions in relation to roads, and that is section 68. Aboriginal land being land covered by one of these registered deeds is not in the same state of law in relation to the making of roads as other land. There is a prohibition in subsection (1) which is conditional in a way which picks up entirely the scheme which, we submit, is the manifest intent of this legislation, namely, to provide under our legal system real control over the destiny of Aboriginal land being exercised by the traditional owners. I am going to elaborate that in relation to section 19 in a moment.
In section 68 one sees that under the device which is purely statutory, namely, the Land Council, under the device of its consent being required there is that degree of control given. As I say, I will elaborate on how that involves the traditional owners in a moment. Under subsection (2) one sees that that statutory entity, the Land Council, is under obligations which provide statutorily for that traditional degree of control or for recognition of it as a prerequisite for the consent which itself is a prerequisite of the making of a road on Aboriginal land.
Under subsection (3) there is a reversal of what is otherwise a public right of highway in relation to a road. One sees that a person other than an Aboriginal is simply not entitled, without ministerial consent, to use a road constructed in what we submit is the only way permitted after there has been a land grant made effective under this Act. There is a provision as well in familiar terms for provision by or under a law of the Northern Territory which, in our submission, in that context must be not the common law but an enactment.
It would, in our submission, be most curious for this provision to be reversing the common law of the public right to use a highway but having it subject to a provision of “a law of the Northern Territory” which included itself the common law of highway. That is a textual pointer to the argument that we respectfully adopt from the reasoning of the Full Court in answer to, in particular, the Commonwealth’s particular point.
GLEESON CJ: To relate that back to a point you made earlier about proof in criminal prosecutions, I suppose you know when you are on a road on Aboriginal land. How would you know when you are in a boat on water whether you are between low‑water and high‑water mark at high tide?
MR WALKER: I am now straying, your Honour, I think, into areas beyond competence from the Bar table but, as I understand it, good navigation involves more or less knowing where you are so that you do not hit things.
GLEESON CJ: But where would you know where the low‑water mark is? How do you know where the low‑water mark is at high tide?
MR WALKER: Now I am completely at sea, if I may put it that way. I do not know what charts depict in relation to mean low‑water marks, your Honour. The short answer, and it may be unsatisfactory both to the Court and to navigators, is that one presumes this can be charted. It is, after all, a line used by the legal geometer. There is no reason why it should not be used by a nautical geometer as well. I am reminded precisely the same practical exigency arises in relation to Fisheries Act closures. Areas are closed from time to time for various reasons. Fisheries Act as well as Aboriginal Land Act reasons.
KIEFEL J: I was going to ask you about that. What are the provisions in relation to closure? Could you just direct me to the general part of the Fisheries Act?
MR WALKER: Yes. In the Fisheries Act there are these provisions which are relating to closure in the sense of prohibition of taking of fish from various places.
KIEFEL J: Sorry, I did not mean to interrupt you for any length of time. I just thought if you could refer me to a part or section.
MR WALKER: I am going to come to the Fisheries Act.
KIEFEL J: In your order then, Mr Walker.
MR WALKER: If you do not mind, your Honour, because there are a number of provisions and there is also specific ministerial closure provisions relating to emergency as well as generally.
Your Honours, before I leave section 68, could I draw to attention because this Act is schematic and does work, in our submission, as an overall granting of legislated control to the traditional owners, may I draw to attention one of the exceptions to that scheme repeated throughout the statute and here found in section 68(4)(c). There are corresponding provisions in section 19 to which I am about to come. One sees again that there the construction or use of a road subject to the conditional prohibitions, that is, the prohibition without consent to which I have earlier referred “does not apply” where the construction or use:
is necessary for the use or enjoyment of the estate or interest by the owner of the estate or interest –
where a person other than Aboriginals, other than the Land Trust, has such an estate or interest in Aboriginal land. The landlocked lease area is the classic example.
HAYNE J: So understanding these provisions about roads, is the position this, that existing roads, that is to say, roads that existed at the time of grant, fall outside the grant, are not Aboriginal land?
MR WALKER: That is right.
HAYNE J: And use of those roads ‑ ‑ ‑
MR WALKER: Not covered by section 68.
HAYNE J: Well, not covered by section 68, is not covered by 70?
MR WALKER: It is not covered by 70, quite.
HAYNE J: Use of the road is not an entry or remaining?
MR WALKER: Quite so, and that is, with respect, more critical than the ownership of the soil. Now, I do not, with great respect, intend to deprecate the importance of the ownership of the soil underlying a public road which in this country at least is mostly by statute, reversed the common law and given it to a Crown or local authority or roads authority. I do not deprecate the importance of that, but more important evidently in this statute is the control of what can be done principally by way of people entering or remaining on land. There are other activities that are controlled, but entry or remaining is at the heart of the kind of activity which is going to be placed within the control of the traditional owners in the manner I am trying to explicate.
Before I leave section 68 and its connection back to section 19, could I remind your Honours that that reference to a person other than the trust, with an estate or interest in Aboriginal land, is a person who has that estate or interest by reason of section 19, a critical provision in the whole statute, has that estate or interest with the consent of the traditional owners. That is the control, and so the whole scheme operates so that those prohibitions which are geographically referenced, that is, by reference to the place being Aboriginal land, do not apply where the traditional owners of that land have taken the steps required under this statute for other estates or interest or rights, licences being created.
Before I come to section 19 which I stress is really the keystone of the scheme, in our submission, may I digress to deal so as to complete it with the matters raised by Justice Gummow with my friends yesterday, using as the touchstone the decision of Mr Justice Rich as an Acting Justice of the New South Wales Supreme Court in Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354. Your Honours are familiar with the case. I do not need to take you to the text in any detail except to remind your Honours that in the ratio which is contained on pages – or that part of the ratio contained on pages 363 and 364 there are three points we would wish to make.
The first is that it is of significance in the reasoning that there was no provision in the New South Wales legislation for the registration or, as I would call it, any form of memorialising of the public road in the circumstances that had arisen in that case. In other words, it was not good enough to produce a clean certificate of title and say indefeasibility defeats those or prevails over those who claim a public road, because the certificate of title was the artefact of a system which did not permit the existence of a public road, that is a right of highway, over the land in any event. That is the first point.
HAYNE J: Is that point any more than that the public right of highway is not an interest in land?
MR WALKER: Ultimately, no, and it is not more than that, and I am bound to observe that in that regard the position is analogous to what exists here. The statutes we have handed up do not on our reading of them contain any provisions, certainly for registration of an instrument or transfer, but indeed do not contain any provisions for memorialising the existence of a so-called public right to fish over Aboriginal land, over any land registered title in the Northern Territory.
Now, I draw to attention in particular that that is analogous with the position in Vickery; I am bound to observe that. The analogy stops at that point. Before I leave that point of analogy, can I note that in the statutes we have handed up you will see provisions for, in particular, Crown authorities noting on title, registered title, in the Territory things which, in my experience, are not universal in Torrens systems, noting, for example, the presence of unexploded bombs or of rubbish heaps on land and permitting those notes to be withdrawn, that is, altered or reversed, if the state of affairs alters.
Now, that is quite striking as a facility for noting equalities of land, and I am bound to point out that we cannot find anything which by any stretch would appear to allow people to note this public right to fish, and that would appear to be in the nature of things, it is not a proprietary interest.
The analogy then breaks down because Mr Justice Rich in particular refers to the lack of any indication by text or intention in the Torrens statute to alter the legal consequences of that conduct by an owner which is captured by the expression “dedication of a public road”. There is absolutely no point of analogy between the conduct of an individual which amounts in law to dedication of land as a public road and the position which exists in relation to the ancient common law right of public fishing, fishing in tidal waters. That does not depend upon conduct of a private land owner, let alone of the King, in doing anything by concession or otherwise to create the right, and so there is nothing really which corresponds or parallels between the situation considered by Mr Justice Rich and the present position.
Finally, his Honour refers to New Zealand authority which on our reading adds nothing by way of point of analogy with the present case, that is, the public right of fishing in relation to a registered estate of fee simple.
GUMMOW J: In that regard, the New Zealand case that we referred to yesterday is in fact reported, the Man O’War Case. In the Court of Appeal it is (2000) 2 NZLR 267, and there is a discussion on this topic of Vickery in particular starting at 283 and it went to Privy Council where it is reported in (2002) 3 NZLR 584, but there is no further use for discussion I think in the Privy Council on Vickery.
MR WALKER: So, your Honours, we are at this standstill in relation to the Torrens point. To summarise, it does not help us but we submit it certainly does not hurt us. I cannot rely upon the ‑ ‑ ‑
HAYNE J: Come back to this point on where Vickery stands and what the explanation for Vickery may be. Vickery seems to reflect a view of the operation of the Torrens system that Hogg had expressed in Australian Torrens System published in 1905. In dealing with public rights, particularly public rights of user, particularly public rights of way, the explanation given is cast in terms that I think are a little difficult to adopt. It talks about rights inherent in the land and that is a notion that may be a little slippery.
MR WALKER: It may not survive what, if I may put it this way, is the rather more sharply delineated doctrine of title by registration.
HAYNE J: It is that I wanted to just explore with you a moment. A view emerging from Hogg, Vickery and cases like that is that the Torrens system is title by registration, title to interests in land. There is no intersection relevantly that can find reflection in the register of interests and creation of title by registration when you are concerned with these so‑called public rights, that they are simply of a different character. Is there more that needs to be ‑ ‑ ‑
MR WALKER: Quite so. I hope I have made it clear that that is the position we have reached and respectfully submit to be the case. At that point, as I say, we reach in our argument a standstill, that is, we cannot win by tendering our certificate of title and saying, “Look, there is nothing about a public right to fish or, if it be relevant, navigate, we win”. I cannot do that.
HAYNE J: But the consequence of that is that tendering the certificate of title saying “I have a title in fee simple” carries you nowhere.
MR WALKER: That is right.
HAYNE J: Is that the consequence of the proposition you put?
MR WALKER: Yes.
HAYNE J: So that fee simple, when we find it in the Land ‑ ‑ ‑
MR WALKER: On the registered certificate, yes.
HAYNE J: No. When we find it in the Land Rights Act.
MR WALKER: I am sorry, yes.
HAYNE J: Is it using the language that we expect to encounter in Torrens system legislation or is it using fee simple in some other way?
MR WALKER: My answer really is yes to both because they are ‑ ‑ ‑
HAYNE J: Most convenient, I am sure, Mr Walker.
MR WALKER: Can I explain. I have already pointed out that under section 12 the obligatory registration is of the grant according to its tenor and the legislative compromise ‑ ‑ ‑
GUMMOW J: Stopping there for a minute, this is a federal statute compelling a State officer to do these things.
MR WALKER: A Territory officer.
GUMMOW J: A Territory officer, I should say, to do these things. According to their tenor seems to postulate some reading together in some way of the two statutes.
MR WALKER: Yes.
GUMMOW J: But the word “tenor” may be the critical factor.
MR WALKER: Yes, and that is what raises what Justice Hayne has put to me and that is my first yes. It is no accident the words “fee simple” have been chosen and it is not a linguistic tag free of semantic content. It would be convenient for our argument to say so but it is not.
Yes, I put it this way, lots of stuff is carried by those two words, “fee simple”. It is clear from the travaux, and your Honours are familiar with all of this from other cases, that that was intended. Partly, it was intended to cope with the unpredicted future and we would ask your Honours to consider this view of the travaux that the legislative compromise at this point used fee simple not in order to carry particular pieces of baggage – I am going to come back to that – but to make sure that there would not be at some shadowy point in the future, which could not be predicted, any argument that something otherwise named such as “Aboriginal title” would be less effective than a fee simple in making good claims to control or ownership.
Now, “ownership” is a special word I use there because I am going to come to all the aspects of this Act which not merely qualify but utterly transform the notion of “ownership” which is normally conveyed by the words “fee simple” and that is when I come to the second “yes” to Justice Hayne. With respect, they ride together, they are not alternatives. Yes, this is a fee simple but it is a fee simple as a result of a process of consideration, recommendation, grant and registration embedded in a statute which has, in the provisions I have already nominated, critical central alterations by statute of some of the most cardinal incidents of an estate in fee simple, in particular, free alienability and transmissibility, to which I will come.
Section 19 is absolutely critical. Section 19 is a process which controls utterly the creation of estates or interests in Aboriginal land. That is why it matches with section 68. That is why it will match with other provisions to which I will be coming.
GUMMOW J: The problem, Mr Walker, is there may then be a gap because they have thought about roads but another species of public right seems to have slipped through the crack. It is not an estate or interest. What is the consequence of it not being addressed is what I am trying to say.
MR WALKER: Yes. To a degree, our argument is one which calls in aid a kind of gap and says, “Unless we are right, something against the evident purpose of this legislation would be permitted.”
CRENNAN J: But there would have been an extant fisheries ordinance when this legislation first was passed ‑ ‑ ‑
MR WALKER: Yes, there was but might I at the moment concentrate ‑ ‑ ‑
CRENNAN J: So that may be one possible route to an answer predicated on a rational legislature.
MR WALKER: Yes. Your Honours, I am going to come to the way in which sections 74 and 73(1) in particular pick up what Justice Crennan has noted. It is, with respect, critical to an understanding of the circumstances ‑ ‑ ‑
CRENNAN J: It may be why fisheries were not treated the same way as roads.
GUMMOW J: Yes, there may be a De Keyser’s Case lurking in the back here mainly insofar as their prerogative is the source of all of this fishing doctrine. For a long time you had had legislation.
MR WALKER: Quite, and they were extant at the time, as Justice Crennan has pointed out. There is special treatment for fishing as we have seen already in 73(1)(d), as there is special treatment for other matters. There is special treatment – my friends have already taken you to it – for mining which is a very important, perhaps the most - most provisions of special treatment in this Act are in relation to mining.
HAYNE J: Well, they are reservation under the grants.
MR WALKER: And they start with that but there are others as well.
CRENNAN J: Under the Fisheries Act (1988), the relevant department is described in the objects clause in terms of stewardship and it may well be it was not fashionable to have objects clauses at the time we are speaking of but it may well be the position was similar although there was no specific reference to objects in the fisheries ordinance.
MR WALKER: Would your Honour forgive me if I again come back to do the Fisheries Act at a slightly later point in my argument, but your Honour has anticipated a point which underlies the way in which I opened yesterday where I conceded that the first part of a declaration cannot stand. The appeal should be allowed to permit that to be corrected. It is an important point. We respectfully adopt what is being put by those against us. They are not against us on that point, we accept what they say. The Fisheries Act can and must apply to Aboriginal land in what I will call its stewardship aspects.
HAYNE J: Just going back to highways. The highways problem is addressed in the Land Rights Act by taking it out of the Land Rights Act. It takes it out by saying that which is now a public highway is out and you cannot create new ones.
MR WALKER: You can.
HAYNE J: No, not over which the public at large has a right.
MR WALKER: Quite so.
HAYNE J: The legislature solves it that way.
MR WALKER: Right. You have your historical point, line in the sand, for true public roads and then you have thereafter what I will call section 68 roads, which for some people it will feel like a public road, but because it is only for some people, it is, by definition, not a public road.
Your Honours, may I now come to section 19 which is all important. It adopts an approach which one will later see adopted in the combination of sections 70 and 71, that is, there is a prohibition which would appear, on its face, to be counter to the notion of giving control to owners, traditional owners, but when one understands all the exceptions or conditions upon that prohibition, it is clear that this is the device that has been adopted to give that degree of control. Section 19(1) starts off with terms which are entirely apt to provide an exclusive and mandatory way of creating proprietary interests. I say proprietary because of the meaning we attach to the expression “any estate or interest in land”.
In subsection (11) there is an expansion of what would otherwise be the ordinary and legal meaning of that expression to include licences. One sees that there is a reference there to it including licences, and interestingly, they are licences “granted in respect of that land”. A “grant” is a defined term in the print your Honours is using in section 3. That is found on page 4 and it:
includes the doing of any action by reason of which the interest arises.
That licence granted includes, without limiting the generality of that notion, a licence granted under a law of the Northern Territory relating to the mining or development of extractive mineral deposits. It is to be noted that that will ordinarily include the authority in question, the Minister, the director-general, whatever, granting a permission under a statutory system, but we are here talking about interests in land and clearly there will be a necessity for the landowner in certain cases also to grant rights of access and that fits within the extent of definition of “grant” to which I have drawn attention. So the licences in subsection (11) include the permissions necessary from an owner so that other forms of licences of an entirely general kind, the details of which will vary from scheme to scheme, may be put into effect.
KIEFEL J: This is with the consent of the Minister though?
MR WALKER: Your Honour is talking about section 19 generally?
KIEFEL J: Yes.
MR WALKER: Yes, there is a strong ministerial role in section 19. It is not universal, as your Honour knows. Subsection (7), for example, contains a class of case in which the consent of the Minister is not necessary.
KIEFEL J: That is the only limitation generally, is it not, if it is under 40 years?
MR WALKER: Yes.
KIEFEL J: Otherwise it is with ministerial consent?
MR WALKER: Yes, there is no question about that. This is a statutory system, it is designed to be inalienable. That was the political banner under which it was enacted. It is capable of being alienated in the ways controlled by section 19 and they are themselves subject in most cases to a suite of controls which combine both political, that is, ministerial consent, plus traditional owner.
KIEFEL J: What are you suggesting then with respect by subsection (11), that it somehow intersects with the Fisheries Act so as to permit the Trust to create a licence under the hand of the Minister that would otherwise be given under the Fisheries Act. Would you go that far?
MR WALKER: No, there is no provision in the Fisheries Act providing for transfer of interest in land. The Fisheries Act does not have any provisions for the fisheries authorities to permit entry onto private land.
KIEFEL J: No. I am sorry, we are at cross‑purposes. You are not applying the provisions of section 19 to the intertidal zone?
MR WALKER: No, of course, I am, your Honour. The intertidal zone is Aboriginal land.
KIEFEL J: Then you are not giving subsection (11) any effect in relation to the creation of licences over the zone?
MR WALKER: I am so sorry, your Honour. I think I must have misspoken because subsection (11) is a provision which applies to the granting of a licence in respect of the intertidal zone forming part of the Aboriginal land and section 19 therefore applies.
KIEFEL J: To its component as land as such?
MR WALKER: No, just land, just Aboriginal land.
KIEFEL J: Yes, you are keeping the water out of it for the moment?
MR WALKER: No one owns the flowing water. It is not a matter of ownership of water.
KIEFEL J: So that the control that you are talking about being exercised and which you say is pivotal under section 19 is controlled with respect to land as such, not a description of land which might extend to water?
MR WALKER: Your Honour, it is convenient to make this clear at this point. The land in question in this Act was plainly intended to include the intertidal zone by reason of the low‑water mark being the boundary for decades of the Aboriginal reserves which were being continued and enhanced in their Aboriginal control by this statute. That much seems clear and conceded. Second, it is in the nature of things that in the intertidal zone, it is wet or dry depending upon the tide. Third, as this Court pointed out in Risk as a matter of ordinary land law and by the qualified application of the extravagant maxim usque ad coelum, so‑called super adjacent fluids, be they liquid or gaseous, are capable of being controlled by your title to land.
That does not mean I own the oxygen or the nitrogen or that I own the H2O, in the same way that it could be said that I own the clover and own the subsoil, but it does mean that I may bring an action in trespass for a person who swings their sign in my airspace, my airspace not being a legal nonsense.
The same thing is true, in our submission, in relation to someone who brings their floating gin palace over my land where I own the fee simple in the intertidal zone. That is my right of exclusion ‑ ‑ ‑
KIEFEL J: You are excluding the right to come across the water, over the land ‑ ‑ ‑
MR WALKER: Yes.
KIEFEL J: ‑ ‑ ‑ but you are not suggesting pursuant to section 19 any right to control by a method of licensing their action over that land. Yours would simply be a negative proposition, is that right?
MR WALKER: No, under section 19 there can be, so long as all the hoops are jumped through, a licence granted in respect of Aboriginal land, not negatively, but positively, permitting someone to do something.
KIEFEL J: Well, so, in the context of fishing a licence to be in the intertidal zone to fish because you say the Fisheries Act is excluded, so you would create an interest?
MR WALKER: No, no, I do not say the Fisheries Act is excluded. I am grateful to your Honour for allowing me to make this clear. The activity of fishing, the taking of fish - and at the moment we will just confine ourselves to wild fish rather than aquaculture - the taking of fish is an activity which is regulated by the Fisheries Act in the various ways to which I am going to come. That applies contrary to the declaration which I have conceded should go, that applies to Aboriginal land. Section 10, most importantly, applies. The prohibition of doing so commercially ‑ ‑ ‑
KIEFEL J: I think I follow what you are saying. You are saying that in addition to that regulatory scheme there is one which is consistent and that requires permission to be present in the area before you can undertake the activity which is licensed. Is that what you are saying?
MR WALKER: Yes. In the Full Court this matter was referred to, and to paraphrase and expand on their Honours’ reasoning, the question would arise, does a licence to fish, being an activity of taking fish either of a specified kind or not, does that under the Fisheries Act empower a person to enter upon private land, because the fishing is to all Territory waters, not just sea, inland waters as well.
So the grazier’s billabong is regulated as to fishing by the Fisheries Act, and if someone is given a licence under the Fisheries Act to fish in a region which includes the grazier’s billabong, question: has that authorised the person to go onto private property? The answer is, of course, no. That is recognised in the administration of this Act. Your Honours saw some of the licences yesterday.
Could I add to that colourful collection what you will find in volume 1 of the appeal book at page 58, a mollusc licence, and you will find at about line 15 or so this endorsement:
Nothing in the licence or these conditions shall diminish the licensee’s responsibility for obtaining any necessary approvals from land owners to transit through, or operate the licence within the above area.
No one has hitherto supposed that the Fisheries Act is, as it were, radical communism in making available private property for commercial endeavour under the aegis of the State authorities. Private property is respected by the statute simply having no scheme in the Fisheries Act for statutory permission by the grant of a fishing licence to go anywhere where there is somebody in a position to exclude you.
GLEESON CJ: Can I just relate this to the declarations made by the Full Court?
MR WALKER: Yes, your Honour.
GLEESON CJ: On page 508, I understand now that it is common ground that declaration (a) is not in play?
MR WALKER: It should go.
GLEESON CJ: Yes. I am not sure about declaration (c) but I will come back to that in a moment. But in relation to what you have been putting in answer to questions of Justice Kiefel, it is the operation of paragraph (b) that I am interested in at the moment.
MR WALKER: In (b) it is the word “enter” which is the heart of the matter.
GLEESON CJ: But do you say that, if they got permission ‑ ‑ ‑
MR WALKER: To take fish.
GLEESON CJ: ‑ ‑ ‑ from your clients to enter, they would still need a licence under the Act?
MR WALKER: Absolutely, in order to enable the stewardship of the aquatic resources of the Territory to be carried out.
GLEESON CJ: So that expression in paragraph (b), insofar as you support it, is really intended to convey that people will need two things. They will need a licence under the Fisheries Act and they will need a licence under section 19(11).
MR WALKER: For Aboriginal land, yes.
GUMMOW J: The ambiguity is in the words “which licence would authorise”.
MR WALKER: Yes.
GLEESON CJ: Yes.
GUMMOW J: It means which licence would, without more, authorise.
MR WALKER: Would of its own force, yes.
GLEESON CJ: Perhaps it is convenient to add those words, “which licence would, without more, authorise or permit”.
MR WALKER: That is right.
GLEESON CJ: Now paragraph (c), while we are there.
MR WALKER: I do not need paragraph (c), with respect.
GLEESON CJ: I have been trying to work out what the difference is between (a) and (c).
MR WALKER: I am not going to spend a long time trying, your Honour.
GLEESON CJ: If your construction is correct, there is no invalidity.
MR WALKER: No, quite.
GLEESON CJ: So it is paragraph (b), understood as we have just agreed, that is the bone of contention?
MR WALKER: Yes.
GUMMOW J: It is not just A. It is A plus B. You say A is valid, but it is A plus B.
MR WALKER: I am sorry. Your Honours have thrown me with A. Is your Honour referring to the declaration ‑ ‑ ‑
GUMMOW J: A is the Fisheries Act.
MR WALKER: I am sorry.
GUMMOW J: That is okay. You say you have to have B as well.
MR WALKER: Yes. The Fisheries Act of course applies to land which is not just Aboriginal land. It applies to all the land, all the waters in the Territory.
GLEESON CJ: That is capital A plus capital B, or X plus Y.
MR WALKER: X plus Y, thank you. Yes. You have to have X plus Y except, may I say, on your own land. On your own land you do not need it, or in waters where there is no one in a position to exclude you. Then you will just need your Fisheries Act licence. That is what is recognised in the licence. It regulates activities in relation to certain so‑called resources; living creatures, fishes and other marine biota. It regulates the way in which that is carried out with a view, as the objects say, to stewardship, which has to do with conservation both for self‑interested lucrative purposes as well as for high‑minded ecological purposes.
It contains no provisions of a kind you would expect. Think about the usual public works provisions, for example, which authorise entry for certain purposes on pain of penalty if you go outside conditions and at the expense of making good or paying compensation. There is nothing like that in relation to private property or indeed lands entry to which is controlled in the public interest. It follows that the Fisheries Act neither purports to nor provides any provisions effective to convey by the licences granted under section 11, or any of the special permits under other provisions to which I will come, rights to enter for the people who are going to carry out the commercial fishing.
Contrast in the Fisheries Act provisions which I will draw to your Honours’ attention later by which there are usual forms of access rights for inspectors and the like who are empowered, as you need to be by statute, to use reasonable force to enter premises and places, et cetera. People checking for offences and the like, they get rights of entry but licensees do not. They have to negotiate that with whomever it is controls access to land.
GLEESON CJ: On your construction of the Act, do the traditional owners need a licence under the Fisheries Act?
MR WALKER: No. I will come to provisions which relate to that.
GUMMOW J: Is the promotional effect of this, so far as the commercial operators are concerned, in regard to your clients, that they have to get themselves permissions under the Fisheries Act. That attracts fees, does it not?
MR WALKER: To the State.
GUMMOW J: To the State, yes. They may also, as a price of dealing with your clients, have to pay more.
MR WALKER: Pay more or do something in return, yes.
GUMMOW J: Yes.
MR WALKER: In the same way as one would if you want to fish a grazier’s billabong, you will have to come to an arrangement with the grazier for a number of things. Your Honours will see conditions as to licences under the Fisheries Act include stipulations as to where you may land fish, places where you may land fish. That is not a provision that forces the owner or the lessee for the time being in exclusive possession of a jetty to put up with a procession of boats carrying such a licence.
Boats with such a licence have the permission to catch the fish on the condition they land them all at a particular place where there is only one jetty you have to do that and they are going to have pay jetty fees or reach agreement about when there will be slot for them to unload their fish in the ordinary way. It is no different in relation to the arrangements that will have to be arrived at for those who wish to avail themselves of fishing licences in relation to Aboriginal land, exactly the same as would apply to private land.
KIEFEL J: I know that we are still yet coming to the Fisheries Act and to the closure question ‑ ‑ ‑
MR WALKER: I think we have done a fair bit of already, your Honour.
KIEFEL J: I am particularly interested in the closure provisions. Am I correct in thinking that under the Fisheries Act the areas can be closed and that may be done upon application?
MR WALKER: Yes.
KIEFEL J: So if we are talking about the protection of Aboriginal traditional rights to fish as distinct from the ability to license other people to enter upon Aboriginal areas, there is possible an application to close an area subject to a land grant? If you did not want them to enter at all, you could apply for a closure and that might be ‑ ‑ ‑
MR WALKER: That is not just under the Fisheries Act, your Honour. I have misled you.
KIEFEL J: It is also under the Land Act itself?
MR WALKER: Aboriginal Land Act.
KIEFEL J: Under section 12?
MR WALKER: Yes.
KIEFEL J: I am probably repeating what somebody has already said yesterday, but that is what section 74A(1)(a) is referring to in relation to providing people with funds to apply for inter alia a closure.
MR WALKER: Yes.
KIEFEL J: So there might be two possibilities running in parallel or they might intersect but there are possible two alternative routes depending upon perhaps whether one considers that the Land Rights Act is about the protection of traditional interests or whether it is intended to additionally give full rights of ownership with the commercial benefits flowing from ownership.
MR WALKER: Yes.
KIEFEL J: I am not suggesting that they are necessarily inconsistent but recognition has to be given to the possibility of protection of Aboriginal interests by the other route as well.
MR WALKER: Yes. Can I make this clear and just to confuse things, there are another 74, that is of the Land Rights Act which is critical to which I will be coming. Under the Territory Aboriginal Land Act, to which we have already made a deal of reference, Part III which is evocatively headed, “CONTROL OF ENTRY ONTO SEAS ADJOINING ABORIGINAL LAND”, section 12 ‑ ‑ ‑
GUMMOW J: Where do we find the statute?
MR WALKER: I am so sorry, your Honours. As originally enacted you will find it in the extrinsic material bundle for the Aboriginal Land Act that we have provided to your Honours as item 5, starting at page 89. The current reprint is on our list of authorities, but I gather that your Honours do not actually have it for which I apologise.
HEYDON J: Did you say extrinsic material Part VII Aboriginal Land Rights Act?
MR WALKER: No. It is a bundle that was provided more recently, your Honour. It is just headed “EXTRINSIC MATERIAL ABORIGINAL LAND ACT 1978 (NT)”.
KIEFEL J: It finishes at page 72 though, Mr Walker. Number 5 is the Aboriginal Land Ordinance 1978 but it has section 12, I think. It has Part III, as you referred to at page 68.
MR WALKER: The best laid plans, I am sorry. Your Honours, in my version of that document that Justice Kiefel has just referred to it starts at page 97. When I say “at 97”, those are the pages of the book.
GLEESON CJ: It starts at page 65 in our folder.
MR WALKER: Sorry, these are tests of something or other, but I have failed. I do apologise. If your Honours have now located that, for present purposes, the changes that have occurred thereafter ‑ ‑ ‑
GUMMOW J: We have the Aboriginal Land Act as in force at March 2004 supplied by the library to us.
MR WALKER: Thank you, your Honour. Perhaps if we use that. I do not need to dwell long on it. Section 12 in Part III indicates the power to close. Your Honours see that the ‑ ‑ ‑
KIEFEL J: I am sorry, Mr Walker, when did that come into effect, section 12?
MR WALKER: I think 1 February 1979. Your Honours will remember that section ‑ ‑ ‑
KIEFEL J: That was in the 1978 Land Ordinance, was that its first ‑ ‑ ‑
MR WALKER: Yes, it was. So before self‑government. As your Honours will see from the travaux preparatoires we have supplied, I do not need to go to it in detail, and to anticipate something I want to say about section 73, the idea was that section 70, which is a very critical provision, would not come into effect until the Territory had had time to consider and enact pre‑self‑government the so‑called reciprocal legislation contemplated by section 73. The Aboriginal Land Act of the Territory is one of those reciprocal pieces of legislation.
GUMMOW J: I think what they did was that they transmogrified the old Ordinance. If you look on the last page of the pamphlet ‑ ‑ ‑
MR WALKER: Yes, they did, your Honour. The Ordinance became an Act after self‑government.
GUMMOW J: That happened with various pieces of legislation.
MR WALKER: Yes, it did. In section 12(3) you will see the range of matters which are involved in a preliminary investigation of a proposal to close and you see that they start with the restriction of strangers right to enter “in accordance with Aboriginal tradition”. They move in paragraph (b) to the question “whether the use of those seas by strangers”, and that is an expression that obviously means people other than the Aboriginal people in question, and your Honours again see the reference to “tradition” there and reproduced in (c).
Then in (d), one looks, as it were, if I may put it this way, to the other side of the ledger, a person being disadvantaged. In (e) pointed inquiry concerning “commercial, environmental and recreational interests of the public”, that is, they are all grist to the mill of the decision whether to close, and then “such other matters as” considered relevant.
GUMMOW J: How does all this fit in the scheme of your argument?
MR WALKER: It fits in in this way, your Honour. That is part of the 73(1)(d) provision for what was in the lead up to the Act called the buffer zone, what this Court in Risk noted is by definition not Aboriginal land. It is seaward of the low‑water mark and it fits into the scheme of my argument in the following way. If I may expand this answer to ‑ ‑ ‑
GUMMOW J: Sorry. So you are referring to 73(1)(d) of the Land Rights Act?
MR WALKER: Yes. The Aboriginal Land Act of the Territory is legislation of a kind contemplated in that provision. Historically, section 70 was not proclaimed until the Land Act had been devised by the Territory. We have supplied the travaux which I may summarise as follows – your Honours are family with the story. Part of the grievance which was addressed by Commissioner Woodward had to do with strangers, people not entitled under tradition, coming onto land which, as the grievance put it, included seas. An arbitrary two kilometres was referred to by the Commissioner in place of a request, I think at some stage, for a much greater stretch – 12, I think – and also for all seas between the mainland and islands, whatever the distance.
It was called a buffer zone for reasons which this Court has noted in various places. Conveniently, Justice Gummow extracted parts of the Commission report in Risk 210 CLR 392 at 419 to 420 in paragraphs 84 to 85. I will come to part of that texts in a moment just to complete the paraphrase of the summary of the story. It had been suggested and can be seen in the original Labor Government Commonwealth Bill which was introduced before the dissolution of Parliament and which lapsed upon its dissolution, to enact provisions of, I will call them, effective control in a buffer zone. I do not need to go into the details of that. They are contained in the material and it was, of course, a dead letter.
There was, as a result of what I will call agitation without any pejorative overtone, a number of enquiries both at the level of the Northern Territory legislature and then a joint select committee chaired by Senator Bonner. We have given some extracts from that in the travaux preparatoires. That included, significantly, balances of factors such as you now see in section 12 of the Aboriginal Land Act (NT). The expedient was adopted, contemplated by 73(1)(d) and actually implemented by the Aboriginal Land Act (NT), Part III, not of providing, as it were, standing and universal buffer zone with control in Aboriginal hands but containing the capacity ad hoc, perhaps temporarily and only after particular attention to particular times and places, closure.
Where does this fit into my argument? The Land Rights Act therefore under 73(1)(d) can be seen from the travaux preparatoires and from the text of that provision to which I will go contemplated Territory legislation of a kind which is complementary or reciprocal and capable of acting concurrently within the meaning of subsection 73(1) to close, that is, to prevent entry – it is an offence to enter closed seas. There is no problem about land and the column of water. It is closed sea – which is not Aboriginal land, and it stands historically in the place of the so‑called buffer.
So, we say, what an odd reading of the interaction of the grant, the prohibition on entry and remaining in section 70 and the specific lifting of that prohibition for certain Aboriginals in 71, what an odd reading of that would produce greater liberty of entry by strangers onto Aboriginal land, the tidal zone, than with sea that happened to be closed offshore of it.
KIEFEL J: But if a closure was provided, it extends the non-entry effect of the grant.
MR WALKER: Quite so. We say ‑ ‑ ‑
KIEFEL J: That extends the non-entry provisions and preserves the right for the traditional use of the intertidal zone ‑ ‑ ‑
MR WALKER: And the scheme works, if I may say so, your Honour, where one sees the same degree of preserved traditional resort and use in the intertidal zone as there is in the closed sea, if there happens to be a closure, and exactly the same total exclusion, subject to the statutory exceptions that do not concern us ‑ ‑ ‑
KIEFEL J: But is not the point that if you had a closure, you would not need to be asserting the right to entry into the intertidal zone because no one would be able to get through? That raises the question, what do you really want? You do not want closure so that you can get entry but by permission or you do not want entry at all.
MR WALKER: Your Honour, it is not true that closure will necessarily block off access to the foreshore.
KIEFEL J: How so?
MR WALKER: It will depend upon where the sea is closed.
KIEFEL J: That might depend upon your application.
MR WALKER: Quite so, but in our submission a buffer zone ‑ ‑ ‑
KIEFEL J: It could well work that way and, in theory, that is obviously, I would have thought, how it is intended to work.
MR WALKER: There is no indication of that in the travaux at all, your Honour.
KIEFEL J: But the whole idea of the buffer was a compromise to an extension of the zone, really, where no one should be permitted to enter.
MR WALKER: Quite. And the zone of no entry is, we say, therefore quite plainly from that history and the purpose, one which comprehends the whole of the Aboriginal land, which includes the tide land.
GUMMOW J: Just a minute, Mr Walker. Just look at section 12(2) of the Aboriginal Land Act. The administrator can impose all sorts of conditions. The notice shall specify the classes of persons, “the purpose for which the area of the sea is closed”.
MR WALKER: Yes.
GUMMOW J: So you could say it is closed for this purpose but not for that purpose.
MR WALKER: Quite. And you could close it for navigation, for example.
GUMMOW J: Yes.
MR WALKER: Subject, for example, to emergency. My point in concluding my answer to Justice Kiefel is this. In our submission, the legislative compromise that resulted in sea closure in place of the buffer zone, which could of course be a very effective buffer depending upon the matters Justice Gummow has noted and that is the terms of closure, that was intended to be something which could in appropriate cases extend what I will call an exclusion zone. By extending an exclusion zone, plainly a meaning can be given to the grant of Aboriginal land and the prohibition of entry or remaining on it in section 70 so as to encompass the exclusion from the tide land which is, after all, indifferently part of Aboriginal land.
So there is exclusion there. That is imported by section 70, not subject to inquiry or applications to re‑open. Then there may be exclusion qualified by its terms or fragile by amenability to a re‑opening application offshore of that. The scheme, in our submission, works and can be seen to gel with the history when one sees the exclusion zone by the Commonwealth statute that Territory legislation cannot abrogate by section 70. That means you cannot come on, obviously without permission, you cannot come on unless you fall within a statutory exception, onto the tide land. Offshore of that, whether or not you can come on or do anything, will depend upon the state from time to time of closures under section 12.
GUMMOW J: And as an offence in section 14 of the Aboriginal Land Act which uses the phrase, “not enter onto or remain on”.
MR WALKER: Quite so, and may I complete a reference to the corresponding provisions in relation to sacred sites? The reference you will recall in section 33 of the Sacred Sites Northern Territory legislation again used that expression “enter or remain”. This is reciprocal, whatever that word means. This is reciprocal legislation, it is not surprising that it picked up ‑ ‑ ‑
KIEFEL J: Well, they actually are working in tandem. There have actually been three closures. I think there is reference in the written submissions for Mr Jackson’s client to there being three sea closures.
MR WALKER: Yes.
KIEFEL J: Do you know whether they were made on the application of the Land Trust in question?
MR WALKER: I think they were. One of them, I think the report was gone to yesterday, I think, yes.
KIEFEL J: Yes, thank you.
MR WALKER: Now, to complete the answer to Justice Kiefel about closure.
KIEFEL J: Yes.
MR WALKER: Quite apart from that, which completes what I want to say about the closure in deference to the interest of the Aboriginal owners to exclude, there is the quite different operation recognised and permitted under section 74 of the Land Rights Act of the Fisheries Act closures. Now, they are closures to do with the husbanding of resources ‑ ‑ ‑
KIEFEL J: Yes.
MR WALKER: I will not go to them in detail at the moment, suffice as to say ‑ ‑ ‑
KIEFEL J: Different purpose really.
MR WALKER: ‑ ‑ ‑ that is operating in a totally different area of discourse; it is not confined to Aboriginal land, far from it. It is certainly not confined to the version of the buffer zone, and it is for stewardship purposes which are specified in that Act, and it is capable of operating under section 74, and I stress contrary to the position that would appear to be conveyed by the application - by the declaration first made we accept that it is capable of operating throughout Aboriginal land.
Now, all of this, in our submission, in relation to section 19 where there are the safeguards in relation to traditional owners, to which I am about to come, all of this is to be seen as having been enacted against a context where rights of entry with the correlative exclusion by reason of criminal sanction had been already referred to in this Court in relation to materially similar the textually identical expressions in the South Australian Pitjantjatjara Land Rights Act case.
In Gerhardy v Brown 159 CLR 70 at 87 Chief Justice Gibbs made the observation we quote in paragraph 27 of our written submission, which concludes in relation to the relationship – now, these are different peoples, of course, but it is an interesting analogy:
it is necessary not only that they should own the land but also that they should have full control of access to it.
Similarly, as we have quoted in paragraph 24 of our written submission, Justice Brennan previously in Meneling Station 158 CLR 327 at 355, referred to the notion of the Act restoring some areas of land to Aboriginal control.
All of this, of course, in the immediate context leading up to the enactment of the statute as noted by Commissioner Woodward in our paragraph 37 of our written submissions in relation to the proof of genuine Aboriginal ownership being the right to exclude from it those who are not welcome, giving rise to the permit system that is the other main part of the Aboriginal Land Act (NT).
In our submission, against that background and with those provisions as enacted, section 70 plainly recognises that there is Aboriginal land which may be dealt with only by section 19, you may not enter or remain upon that except in certain circumstances to which I shall come, and that, according to the text, must include the tide land. Now, in section 19, your Honours will see the critical references to a “Land Trust” and the “Land Council”. I do not need to dwell on the provisions. They are both statutory artefacts but with genuine or substantive connection to the realities of the Aboriginal peoples.
Under section 4, land trusts are set up with the attributes one sees in subsection 4(3) of legal personality and the function is given by section 5, which is basically holding title and to exercise powers as owner for the benefit of the Aboriginals concerned. This is nothing to do with private ownership. Then in subsection (2), a requirement that it:
shall not exercise its functions in relation to land held by it except in accordance with a direction given to it by the Land Council for the area –
and an obligation to carry out such directions. Section 23, relevantly, in relation to land councils which are dealt with generally by Part III of the Act, in designating the functions of a land council has a representative and deliberative function as the word “council” would suggest, namely:
(a)to ascertain and express the wishes and the opinion of Aboriginals living in the area –
et cetera. Then, without reading them - that was paragraph (1)(a). Paragraphs (b), (ba), (c) and (e), not to mention all the others, indicate the substantive way in which by section 19 requiring land council paramountcy together with parallel, ministerial consent where that is necessary, this Act gave back or restored, to use the judicial language, a degree of control of land. In our submission, when one sees how integral to that is the notion of exclusion, then exclusion from the tide land, in our submission, must follow. Subsection 23(3) is perhaps the high-water mark, if I can call it that, of the substantive connection with traditional Aboriginal control intended to be giving a functional equivalent in our system of law by this Act.
Your Honours, can I now come directly to section 70? Section 70 starts with subsection (1) prohibiting anybody to “enter or remain on Aboriginal land”, not just so‑called strangers. Until one reads on, that will include all Aboriginals, be they local or not.
Under subsection (2), immediately one has a recognition of the position of persons other than the Land Trust that holds the trust for the benefit of the Aboriginals concerned, holds the land for the benefit of the Aboriginals concerned, where that other person has what is called “an estate or interest in Aboriginal land” and we know that that is an estate or interest that can be created only with the consent and at the direction of the Aboriginal people concerned, see section 19. The first of the exceptions from subsection (1) is a statutory entitlement, and I stress it is statutory in subsection (2)(a). They are:
entitled to enter and remain on the land for any purpose that is necessary for the use or enjoyment of that estate or interest -
In our submission, that is highly significant. It would be odd if an estate or interest gave a right to possess land and one were to be met by an answer, “You can’t go onto it”. But it is not odd in a statute that intends there to be a comprehensive exclusion and thus even the most obvious matter, namely an estate or interest which gives you a right to possession, needs to be explicitly dealt with as an exception to that comprehensive exclusion. That is a strong textual indication that unless one finds in the statutory words a right or entitlement, to use the expression of section 70(2)(a), to do something or to be on land then you are caught by the prohibition in section 70(1).
One sees in subsection (2)(b), one of these limits on the legislative competence of the Territory government because it is prohibited by this Commonwealth enactment from authorising:
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 -
So there is a requirement under the Commonwealth Act that the section 19 estate or interest carry with it a right of entry or remaining such as is necessary for the use or enjoyment of that estate or interest and that is not to be interfered with by any Territory legislation.
GUMMOW J: The holding a licence under the fisheries legislation just does not engage ‑ ‑ ‑
MR WALKER: That is right.
GLEESON CJ: It does not get you to enter anything.
MR WALKER: That is right and would not expect it. I come back to the grazier’s billabong. They are aquatic resources, they are subject to the legislative stewardship of the Territory and licences can be granted for the taking of it. If it is the grazier who gets the licence that is all he or she needs, but if it is anybody else then of course there has to be an arrangement. The Fisheries Act does not purport to alter private property, why should it be seen as altering Aboriginal land.
GLEESON CJ: If I own a farm near here that has a trout stream on it, people might need a licence to fish for trout, but they are going to have to deal with me to use my trout stream.
MR WALKER: Make it a real holiday, your Honour. Yes, they would, indeed. Trout, of course, if I may return to some matters that obsessed the Commonwealth Solicitor‑General yesterday, have been much beloved or at least their death has been much protected in England and Scotland where there is different common law – I do not mean different from ours but obviously there is no tidal right of fishing for at least the trout that we are talking about for men in tweed.
KIEFEL J: Or women who fly fish.
MR WALKER: Or women in tweed, I am sorry, your Honour, although cases in question all seem to be men, if I may say so. Your Honours, it cannot be stressed too much as a plank in our argument that the Fisheries Act battering ram which is used against us to get onto our land lacks a point. It cannot do the job because there are no provisions in it or authorised to be placed in a licence granted under it to overturn the right of private property in the case of non-Aboriginal land to control who comes onto your land or, in the case of Aboriginal land, to overcome the provisions of section 70.
GUMMOW J: The possession of the licence just lifts the prohibition on fishing imposed by section 10 of the Fisheries Act.
MR WALKER: Quite so.
GUMMOW J: It does not lift the prohibition against entering on the land of your clients.
MR WALKER: No. Quite so.
HAYNE J: The public right to fish on intertidal areas you say is taken away by section 70(1)?
MR WALKER: Utterly. No, I am wrong. Utterly is not right.
GLEESON CJ: I thought you said it was taken away by the Fisheries Act.
HAYNE J: Is it?
MR WALKER: No, I am sorry, I was wrong. I was too hasty. The public right to fish, shorthand for the tidal waters, et cetera, with all the qualifications that the authorities noted by my friends have, such as whether you can attach tackle to the solum, et cetera, is abolished as to commercial purposes by section 10 of the Fisheries Act but, may I say, not for the first time. It remains suppressed by that provision because as long ago as 1904, as I think is noted in Justice Olney’s reasons in Yarmirr 82 FCR 533 at 595, there had been similar prohibition of doing that which the common law granted a liberty to do, namely, to fish. There are two things I want to say about that liberty to fish. Your Honours will remember the way Justice Brennan described it in Harper 168 CLR 314.
GUMMOW J: Just before we go to Harper, Mr Walker, how do you fit section 10(2) of the Fisheries Act into this? That seemed to exempt some activities from the prohibition.
MR WALKER: It does. Can I come back to that later. That is the subsistence or personal use provision and it will require a reference to a regulation which might be better to do when I come to section 10. It suffices to say at the moment, your Honours, that to anticipate the outcome we do say section 70, of course, is entirely intact in its prohibition against entry or remaining, notwithstanding section 10(2) of the Fisheries Act, but I will come back to that.
In Harper at pages 330 to 331 Justice Brennan referred to the public right of finding in tidal waters. In the passage starting at the foot of page 330 about point 8 or so his Honour emphasised that it was:
not limited by the need to preserve the capacity of a fishery to sustain itself.
He quoted from the Lord Chancellor, Lord Selborne, in Goodman v Mayor of Saltash at the top of page 331 as follows:
The tendency to the ‘destruction’ of the oyster fishery . . . can mean no more than what must always be in the power of the public, where there is a general public right of fishing . . . namely, the exhaustion of the fishery, by taking excessive numbers of fish . . . They grow, and are reproduced continually from spat and spawn ‑ ‑ ‑
GUMMOW J: Yes, we can read that, but the present point, it seems to me, is that that explains why De Keyser’s Case has a lot to say here.
MR WALKER: That was all overturned by statute.
GUMMOW J: Yes, and there was a sense to it, too.
MR WALKER: Yes.
GUMMOW J: Because of the pernicious possibilities of the exercise of the prerogative granted fishing right.
MR WALKER: And so the ancient right from time immemorial could be seen to have been rooted in the policy of a time which did not have impending shortages, et cetera, of a kind which by a very long time ago had led to the complete reversal – the complete reversal – of the common law right, the essence of which is that you cannot stop me from taking 10 fish, 1000 fish, 10,000 fish, you cannot stop me from throwing them away after killing them. That was the common law right. The abrogation by provisions such as section 10 of the Territory Act, in our submission, completely extirpates the common law right.
GLEESON CJ: I am not suggesting that it has any relevance to this case but as to that common law right, who actually did “the public” mean? Where did “foreigners” fit into that?
MR WALKER: Your Honours, I confess ignorance. I have only a shadowy grasp of how many common law rights or liberties aliens had, depending upon whether they were resident aliens or transient aliens.
GLEESON CJ: Because one of the sensitive areas about fisheries management is the intrusion into fisheries of people from abroad.
MR WALKER: Yes. The travaux in this case, for example, includes the assurance that Australian fisherman are not going to be treated like invading Taiwanese, as they were then named in the debates or reports.
HAYNE J: But the public right to fish was the intertidal zone, was it not, and only the intertidal zone?
MR WALKER: No, I am sorry, your Honour, tidal.
HAYNE J: A public right to fish was the intertidal zone, was it not?
MR WALKER: Not just the intertidal zone, tidal waters.
HAYNE J: Tidal waters more generally.
MR WALKER: Which will include the permanent water of tidal creeks, as well as leave aside seaward of the low‑water mark. Your Honours, you have a plethora of authorities on the common law right. In British Columbia v Canadian Case which, of course, is about the division of legislative competence between provinces and dominion and which is not directly in point, it is the only authority, in our submission, which can be said to stand against this.
GUMMOW J: That was significant at the time of the Seas and Submerged Lands Case, was it not?
MR WALKER: Yes. Your Honours, in the Privy Council (1914) AC 169 there is the passage – I will not read it to you because I think others already have – but your Honours will recall about an inch down, the passage that commences “The legal character of this right is not easy to define”, and there is a reference to the Crown’s protective role, parens patriae, of subjects exercising that right at the foot of that paragraph.
GLEESON CJ: Do you need to embrace as part of your argument Justice Selway’s theory that there is now no such thing as a public right to fish and the best that you can say is that in relation to catching some fish for your own supper there is no law against it?
MR WALKER: I do not have to go that far although that is, with great respect, the effect of the law as it happens, the municipal law governing fishing in the Territory. Your Honours, what I do have to do, however, is to note the directly contrary holding of Justice Mansfield in the Arnhem Land Trust Case 170 ALR 1 at page 17, paragraphs [69] and [70] and, in our respectful submission, paragraph [70] is completely wrong. His Honour, in particular, rests upon the effect of subsection (2) but subsection (1) is unmistakable in its character. It prohibits, indeed, renders criminal, conduct of a kind – it is, in our submission ‑ ‑ ‑
GUMMOW J: It does not understand the significance of De Keyser’s Case which we have banged on about more than once, most recently in Jarratt v Commissioner of Police.
MR WALKER: Paragraph [70] is, in our submission, a passage and a conclusion which cannot be supported in any of its steps. The common law right has gone except insofar as the liberty is preserved by subsection (2), which we deal with differently in relation to section 70. As to commercial fishing, Justice Mansfield in Arnhem Land is, with respect, incorrect. There is no common law character to it at all. It is the opposite of the common law.
Your Honours, may I then go to section 71 of the Land Rights Act before I come to the critical section 70(2A). The reason is that that is at the heart of this Act’s scheme in fact executed by a general prohibition which would catch Aboriginal people as well and then in section 71 a recognition of an entitlement under tradition. In section 71(1), subject to it – and subsection (2) is important – there is statutory statement of entitlement:
to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals –
So there is the Commonwealth statutory recognition by granting as a matter of statutory law an entitlement in the face of what would otherwise be the criminally sanctioned prohibition in section 70. One can see, in our submission, by that structure everyone is prohibited except certain persons, owners of estates or interests which have to go through the section 19 mill, so Aboriginals will control that. Then section 71, again, Aboriginal tradition dictates who among Aboriginals can come in. Could I draw to attention, however, the important provisions of subsection 71(2).
Traditional Aboriginal entry, use or occupation is not authorised if it “would interfere with the use or enjoyment of an estate or interest” held by someone else other than the Trust, et cetera. In other words, if by the process under section 19 there has been the involvement and approval and active assent of the Aboriginals in question, then they are bound to that and they may not derogate from their grant.
So the scheme, in our submission, fits together with 19, 70 and 71 at its very heart so as to provide for what Justice Woodward called in his report the privacy of their land. Your Honours will see that in paragraph 423 of the report which happens to be quoted in paragraph 85 of Justice Gummow’s reasons in Risk 210 CLR 392 at 420. That was in the context of the buffer zone, the buffer zone being to protect the privacy of their lands, their lands being the Aboriginal land under this statute. That notion of privacy, in our submission, entirely coincides with the comprehensive prohibition against entry or remaining on Aboriginal land reflecting, as I say, exactly the same language and prohibition for a similar purpose in relation to sacred sites under section 69.
Might I, while on that schematic control of entry or remaining, add a reference apropos in particular Justice Hayne’s inquiries about roads or point about roads, with great respect, in the Aboriginal Land Act (NT) section 4 regulates using a road, and I omitted that from earlier reference.
Now may I come to section 70(2A). There is no question of anything that was in controversy justicially between the parties in this case requiring attention to the notion of performing functions under this Act, we can pass over it. Neither, as the argument has been put and decided so far, is there anything which requires further attention to the notion of entering or remaining in accordance with this Act. Leaving the expression in question being a “law of the Northern Territory”, which is defined in this print that your Honours have, that is on page 5 in section 3, and that is defined to mean:
a law made under, or having effect in the Northern Territory by virtue of, the Northern Territory (Self-Government) Act 1978.
That definition has been amended by reason of self-government and previously referred to the Northern Territory (Administration) Act 1910.
Your Honours, to anticipate and complete all I wish to say in elaboration of the Full Court’s approach concerning the so‑called common law point, may we simply say first that, with respect, the Commonwealth Solicitor‑General is correct, namely, that one looks to the definition of the term “a law of the Northern Territory”. But, second, nonetheless, in seeking to understand those terms which supply the definition, it is legitimate, in our submission, to understand that it is after all defining the phrase “a law of the Northern Territory”.
Third, that under the provisions in the Self-Government Act of section 57 for the continuance of laws, the expression used is “all existing laws of the Territory” which continue to have the same operation as they would have had if the Self-Government Act had not been enacted and then “subject to alteration or repeal by or under enactment”. In our submission, as a matter of textual indication, the notion of existing laws being such as to be “subject to alteration or repeal by or under enactment”, though literally capable of including the effect on common law of legislation, is as a matter of first and enduring impression more apt to describe enacted or statute law only.
Finally, in our submission, in section 57 of the Self-Government Act it would be contrary to the well understood nature of the common law in and of Australia to describe it as one of the existing laws of the Territory, not operating in the Territory, not applying in the Territory, but of the Territory as if the Territory has some role in its making or guardianship. This Court does that in relation to the common law.
KIRBY J: If that point of construction is accepted, where does that lead in your argument?
MR WALKER: It is supererogatory because I hope we have already persuaded your Honours there is no common law right of commercial fishing to be availed of by Ms Perry’s clients in relation to Aboriginal land anyhow. It is supererogatory in a sense that if there is no common law right then there is nothing at stake, but it otherwise fits into my argument because we say that the common law is, in any event, not within the expression in section 70(2)(a) “a law of the Northern Territory” as being a law in accordance with a person may enter or remain on the land. Yes, at common law, tidal waters could be entered by people exercising the common law right.
The argument against us, as we understand it is, well, the fee simple – the magic term “fee simple” – is subject to that time immemorial qualification. The short answer is, but there is no such common law right, and had not been for a very long time when this particular use of the word or expression “fee simple” was used in this statute. That is the first point, and it still is not a common law right, so that no declaration can be made to vindicate it.
The second point is, in any event, that phrase does not include so‑called common law rights, because a law of the Northern Territory should in the manner the Full Court explains – and I have just slightly elaborated – be interpreted as referring only to “enacted law”.
Apropos that relation of enacted law and common law, I think it was your Honour Justice Gummow who inquired about the American jurisprudence. We have noted that American jurisprudence in footnote 32. I cannot remember the paragraph but the truth is the footnote is bigger than the paragraph of our written submissions.
In the material in relation to that could I draw attention in particular to the discussion that your Honours may – I stress, may – find useful by the Supreme Court in 1893 in Shively v Bowlby 152 US 1 at 26, 48 to 49 and 57. It suffices to say that it would appear, particularly by the closing passage in those reasons, that there were, first of all, as you would expect in that jurisdiction or those jurisdictions, highly disparate approaches taken to what local conditions required as to the content of the common law right, highly disparate local responses as States were added to the Federation concerning what public policy required in terms of the extent of land grants, qualifications of the ad medium filum doctrine in relation to inland waters and in particular, a pattern of executive grant pursuant to so‑called donation legislation which usually removed any doubt about the right of the public both to navigate and to fish in tidal waters, usually by preserving it and ensuring that there were no owners who might claim private rights of exclusion.
GUMMOW J: Mr Walker, can we just go back to section 12(3) of the Land Rights Act?
MR WALKER: Yes, your Honour.
GUMMOW J: This question of roads. We looked at it before and I think we had seen that the:
road over which the public has a right of way –
had to be excluded.
MR WALKER: Yes, it has to be identified and excluded.
GUMMOW J: Identified and excluded, but then one goes to section 4, which you directed us to, of the Aboriginal Land Act, that seems to bring in a definition of “road” which would include those excluded public roads but nevertheless deny entry to them?
MR WALKER: Yes. When I say I think so, that is because – I apologise for not seeing whether there has been judicial interpretation of this, but that part of the interpretation talks about “that part of the land within the boundaries of Aboriginal land”. There was a road over which the public had at that time a right of way.
GUMMOW J: It seemed to be a conundrum. That is what I do not understand.
MR WALKER: That is a definition that refers to the Land Rights Act explicitly, and section 12. If you put it all together, to make sense of it, it must mean a road not itself Aboriginal land but geographically located as an inclusion in an area which is – the difficulty with all of that geometrically is that, is land really included in boundaries if it, for example, intersects the whole of a parcel of Aboriginal land, which I suppose then are really two parcels. Suffice it to say that, read charitably or purposively, which may be the same in this case, it would seem to mean those roads which are not Aboriginal land under the Land Rights Act but which are controlled as to access pursuant to the legislative competence of the Northern Territory Parliament by section 4 of the Aboriginal Land Act (NT).
GLEESON CJ: Excuse me, Mr Walker. The next cases will be taken not before 2.15 pm. Yes, Mr Walker.
MR WALKER: Your Honours, if we are right about the irrelevance of the common law, then the matter falls out quite differently for this reason. The importance for my friends of the common law argument was that they could attach it silently, as it were, to the fee simple. The words “fee simple” brought in, they said, for all the reasons contained in the authorities dating from a long time ago subjection of what would otherwise be the highest rights of ownership available to the public right of fishing. Once, however, the common law goes because it has in this case as to commercial fishing been abrogated, then there is no role whatever for that argument, leaving only the statutory licence to fish. Again, I am leaving out section 10(2) of the Fisheries Act to be dealt with separately.
As to commercial fishing it is just the statutory right. But no one has ever supposed that the words “fee simple”, whether from time immemorial or only when they were first used in this statute, contained within themselves by some method of legal reasoning subjection of that highest form of ownership to a requirement that you permit people to exercise their licence of commercial fishing. That does not follow from any common law reasoning, it does not follow from land law and it certainly does not follow from the terms of the Fisheries Act, assuming against the fact that the Northern Territory would have had competence in the Fisheries Act to do so.
So that in relation to that which is the object of the form of declaration transmogrified at the suggestion of the Chief Justice this morning, what matters is what is conveyed by the kind of licences which were referred to in the evidence at trial as purporting to permit fishing in Aboriginal land, the intertidal zone. We stress, we withdraw and apologise for those references which, as it were, invalidate either that grant of licence or the legislation to do so. The licence is good. It does not permit entry into the intertidal zone.
GUMMOW J: There does seem to have been some shift between the Full Court and here.
MR WALKER: Unquestionably, your Honour.
HAYNE J: That is to say a little shift from the written submissions to now.
MR WALKER: Your Honours, there are matters which are indefensible and call for withdrawal and apology and I hope I have made it plain and clear. In paragraph 43 we incompletely, but I hope appropriately, indicated the degree of our no contest.
HAYNE J: It is paragraph 42 I had in mind. Move on.
MR WALKER: Yes, your Honour. If I may, to use the political cliché, move forward without looking back.
GLEESON CJ: But are we concerned in this case with the question of whether the traditional owners need licences themselves?
MR WALKER: No, not concerned at all with that. Their subjection to the Fisheries Act is not in contest, was not in fact the subject of argument, which is one of the several good reasons why the declarations were inappropriate. Your Honours, in section 70, may I draw to attention again the detail and clarity by which explicit provision is made for what might otherwise have been thought to be implied. See in subsection (4) that a person with an estate or interest – I stress that is one which is created after section 19 has been involved – is enabled to enter and remain on or use not only the land over which that estate or interest has been granted pursuant to section 19, but also to traverse Aboriginal land in order to cross it, as it is put in subsection (4)(b), in order to gain access so as to enable the use or enjoyment of that estate or interest.
So that it was not left to implication and, in our submission, this strongly supports the proposition that there cannot be an implication upon an implication, that is, an illegitimate implication in section 70 of the unavailable implication in the Fisheries Act of a right granted under the Fisheries Act to enter Aboriginal land.
Where that which, as it were, might otherwise in another context seem to go without saying, this provision, not surprisingly given its criminal nature in section 70, makes explicit provision. There is no explicit provision for entering so as to avail oneself of either a commercial fishing licence under section 11 of the Fisheries Act or, and here I come to it, section 10(2) under the Fisheries Act, namely, the subsistence or personal use. In relation to subsection (2), your Honours may have wondered whether personal use includes the elaborate form of safari‑style holiday where you end up kissing fish, I understand. The fact is that under paragraph 10(1)(e), a prescribed form of action by regulation 192 of the Fisheries Regulations is:
the conduct of a business that provides the services of a person to conduct a fishing tour –
and that requires a licence.
GUMMOW J: Where do we see that?
MR WALKER: You do not have it.
GUMMOW J: We had better have it at some stage, Mr Walker, just to find out about this.
MR WALKER: We will repeat the references. Regulation 192 of the Fisheries Regulations, a copy of which will be provided by us.
GUMMOW J: So we can contemplate these strange activities that seem to go on when you fish.
MR WALKER: Yes. Could I now come to section 74 briefly? I have already noted the way that operates, in particular as it picks up the Fisheries Act, promptly to our abandoned stance. The Fisheries Act, in our submission, is par excellence in this case an example of a law of the Northern Territory contemplated by the Commonwealth Parliament as operating concurrently in section 74 and having its application unaffected as it applies to Aboriginal land. I then come to the reciprocal legislation provision, section 73, which is expressed, as your Honours appreciate, in terms of limiting by description the legislative competence in particular areas of the Legislative Assembly of the Northern Territory.
The Sacred Sites Act, which is reciprocal in many ways to section 69 of this Act, is obviously one of the laws providing for the protection of and prevention of the desecration of sacred sites, including sacred sites on Aboriginal land noted in section 73(1)(a).
GUMMOW J: Why was 73 put there? In other words, why was not the ordinary grant to the Territory under the Self-Government Act sufficient? Is it a sort of “a non-covering the field” provision? Was it designed to meet an argument that the Territory was incapacitated in some way because of the breadth of the Commonwealth ‑ ‑ ‑
MR WALKER: Your Honour’s question really may also involve why was this not repealed upon self-government.
GUMMOW J: Yes.
MR WALKER: I do not know. I can explain how it appears now by reference to the pre-self-government legislative compromise illustrated by the extracts from travaux preparatoires that we have supplied. Your Honours are familiar with all of that.
May I offer this as a speculative explanation without any citation of source and that is that the Land Rights Act is a critically important Act for the political, social and land settlement in the Northern Territory. It is in the nature of a constitutional enactment.
GUMMOW J: We do not have 73 in its original form, do we, in this reprint? It was amended in 1978 which suggests self‑government.
MR WALKER: Yes, for example, Ordinance references were changed to Acts, et cetera. We have looked at the original form. There is nothing in it material to our argument and I hope not to anyone else’s argument. We will supply the original form of that provision. None of the changes, I think, are outside the category of what I will call statute law reform.
GUMMOW J: Yes. I am sorry, I distracted you from paragraph (a), sacred sites.
MR WALKER: Yes. As to paragraph (a), it grants legislative competence but, as has been pointed out earlier, under what might be called provisos or prerequisites or necessary characters introduced by the expression “but so that” limits that competence, “such laws shall provide for the right of Aboriginals to have access”. Without going to the provisions that gets a tick in relation to the Northern Territory Sacred Sites Act.
We then come to (b) which is “regulating or authorizing the entry of persons on Aboriginal land”. It is the Fisheries Act which is relied upon against us as answering that description and, in our submission, it fails on at least two counts within paragraph (b) and it also fails by reason of the proviso at the foot of section 73(1). First, it does not authorise the entry of persons on Aboriginal land. I have already, if I am ever going to, made good that point by argument. Second, it does not in fact “provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition” being in paragraph (b) the prerequisite or necessary condition of such a law introduced by the expression “but so that”.
If I can take your Honours to the Fisheries Act, that can be seen from the possibilities of aquaculture licences to which my friend, Ms Perry, took you yesterday and your Honours will note in the Fisheries Act section 11(8) specifically recognised the difference between the licence to conduct aquaculture – and they obviously have public health and aquatic resource management implications, disease in captive fish, et cetera – and the land interests, called there a lease, there are no provisions for the grant of a lease for aquaculture in the Fisheries Act. That is textual recognition of the fact that you will find the capacity to go on and remain on land on which you are licensed to conduct aquaculture in other sources of law, either other statute or private dealings.
GUMMOW J: The point the Chief Justice put to you is the point, is it not?
MR WALKER: Yes.
GUMMOW J: Assuming the trout fishing he was talking about.
MR WALKER: Quite, and such a lease or licence is exactly what is encompassed within section 19(11) of the Land Rights Act and would be necessary and appropriate for aquaculture in the mouth, say, of one of the rivers behind the straight line across the mouth level with the low‑water mark and thus on Aboriginal land.
GUMMOW J: What 73(1)(b) is looking forward to is, I think, section 4 of the Aboriginal Land Act which deals with entry onto Aboriginal land and which preserves traditional rights in express terms.
MR WALKER: Yes. Your Honour anticipates me. It is not the Fisheries Act, it is the Aboriginal Land Act that does that and does it within the competence required, including satisfying “but so that”.
GUMMOW J: But what laws are there to deal with (c), wildlife?
MR WALKER: I am sorry, your Honour?
GUMMOW J: What statutes are picked up by paragraph (c), conservation of wildlife? You have got sacred sites for (a), Aboriginal Land Act for (b).
MR WALKER: Can I give the specific reference. I hope I am not wrong. It is the Parks and Wildlife Commission Act (NT).
KIEFEL J: Would it also be a reference to the Environment Protection and Biodiversity Conservation Act?
MR WALKER: Yes. That is Commonwealth?
KIEFEL J: Yes.
MR WALKER: Yes. Can I just finish what I want to say about the Fisheries Act. It may be put against us that section 53 of the Fisheries Act satisfies the “but so that” of 73(1)(b). It does not. Under section 53(2), following what might appear to be such a compliance in subsection (1), there is a carve out of the traditional use which is required to be preserved by 73(1)(b) in relation to areas used for aquaculture. So section 53 is not a complete compliance with the “but so that”. The scheme is still satisfying in relation to aquaculture. If you want to engage in aquaculture, you will get a lease or a licence from the Trust under section 19 and then all Aboriginals will be required under section 70 or section 71(2) to honour that. There is no resort to the Fisheries Act at all for that.
Paragraph (c), the first enactment, was the Territory Parks and Wildlife Conservation Ordinance, passed in 1976 and dissented to in 1977. Otherwise we will pass over paragraph (c) and come to paragraph (d). That is the other of the paragraphs in this subsection relied upon by our opponents for the non‑common law argument.
GUMMOW J: You have explained to us about the buffer zone.
MR WALKER: As Risk points out the:
waters of the sea . . . adjoining, and within 2 kilometres of, Aboriginal land –
emphatically is not and cannot be Aboriginal land of itself. Thus (d) describes or provides legislative competence to enact Territory laws regulating or prohibiting entry on land which does not include the land in controversy in this case.
KIEFEL J: If you read (d) as interested in the purpose of entry to the waters of sea abutting Aboriginal land as land, there are no tidal waters, and the Land Act as involved only in entry on land as such, the only potential problem in the way of construction would be the definition of “Aboriginal land”, would it not?
MR WALKER: Could I respond this way. That is to put it mildly, we submit, a problem for such an argument and I will come to that in a moment, but there are problems of policy as well. When this Act was enacted there had been for decades Aboriginal reserves down to the low‑water mark. Those reserves were, as Commissioner Woodward noted, and as Justice Gummow quotes in Risk, paragraph 84, they had been generally estuaries and tidal flats of Northern Territory Aboriginal reserves, they are now Aboriginal land in this case, have been generally regarded as being part of the reserves, not surprisingly because the boundary was low‑water mark, and therefore out of bounds to commercial fishermen.
KIEFEL J: That is it. If you are trying to give effect to the purpose of preventing entry it may be that what it has in mind here is the recognition of the whole of the area the subject of a grant or a reserve but that the Land Act deals with the prevention of entry to land as such ‑ ‑ ‑
MR WALKER: No, with respect.
KIEFEL J: ‑ ‑ ‑and legislation contemplated by (d) deals with prevention of entry on the sea. If that is a workable definition, then you do not have any problems with the Fisheries Act, do you not?
MR WALKER: Well, there are no problems with the Fisheries Act, in any event.
KIEFEL J: No, there should not be.
MR WALKER: I, with respect, accept that if there is it is a weakness in the argument, but there is no problem under our argument with the Fisheries Act which applies, according to its tenor, and operates. It is not complete to say it is the Aboriginal Land Act (NT) which deals with entry to Aboriginal land because section 70 does, and it is to be recalled that there is a proviso, the kicker at the end of subsection 73(1) makes it clear that Territory law is not going to be derogating from section 70. So the complete answer is, no, it is section 70 plus such reciprocal legislation as is permitted under section 73(1)(b) that will affect entry, and I stress (b).
KIEFEL J: What I am really saying though is section 70 can – it is a workable arrangement, is it not, if section 70 deals with entry to land as land, and the laws contemplated by (d) deal with entry to the waters of the sea ‑ ‑ ‑
MR WALKER: No, your Honour.
KIEFEL J: ‑ ‑ ‑ even if it overlies part of the grant?
MR WALKER: No, your Honour. This is the particular character of the intertidal zone which determines the outcome to the matter you have raised. Your Honour uses the expression “land as land” by which we understand you to mean land not covered by sea water.
KIEFEL J: Yes.
MR WALKER: The first thing to note, of course, is that in terms of aquatic resources there may not be a lot practical in terms of the way in which this exclusive zone approach is ‑ ‑ ‑
KIEFEL J: There should not be an impinging upon the practical right of the traditional owners of the land to access aquatic resources, but if the Land Rights Act is really talking about grants of land itself, all that it means is that entry to land itself will – the boundary of the land will alter with the tide.
MR WALKER: Your Honour means dry land.
KIEFEL J: Yes, land that may be walked upon.
MR WALKER: The first thing is that the Land Rights Act is not concerned only with dry land.
KIEFEL J: But there is hardly any reference to anything other than land except in the few provisions which surely suggests that (d) might be trying to deal with the waters abutting the land, including the tidal zone.
MR WALKER: It has never hitherto ever by anybody been suggested, for example, that a billabong is not part of Aboriginal land, whether it is seasonal or not.
KIEFEL J: But the words in (d) are “waters of the sea” so we do not need to be bothered about billabongs.
MR WALKER: Quite, but when one is talking about land you do have to be very bothered about billabongs, with respect. They are both permanent and seasonal and no one has ever suggested they are not caught within land. That is the first point.
KIEFEL J: For the purpose of my question, we will concentrate on (d), how it might work in relation to the intertidal zones.
MR WALKER: The second point is, as your Honour, with respect, has anticipated, to examine first the definition of “Aboriginal land”. We know, without any possibility of ambiguity, that that is land down to the mean low‑water mark. There is no ambiguity possible to that. In our submission, that is an end of any controversy about paragraph (d).
KIEFEL J: Except that the land itself in that position has two qualities. It is both Aboriginal land the subject of a grant and it, from time to time, has waters of the sea over it.
MR WALKER: Without any question.
KIEFEL J: Well, (d) might be addressed to the latter position.
MR WALKER: There is nothing in the statute at all, not a single expression, which selects the intertidal zone as a special form of Aboriginal land, let alone at different times of each day. That is a very important point because, if the foreshore, as it is sometimes called, were to be excluded for some reason from the notion of Aboriginal land, then people could as well walk on it as boat over it when it is covered.
KIEFEL J: Perhaps, Mr Walker, the difference in approach is yours commences from the point about control and has rather a lot to do with aspects of control of land, I might say.
MR WALKER: It does.
KIEFEL J: Whereas perhaps more a purposive approach which looks to the prevention of entry might see that the prevention of entry to land might be one thing and the prevention of entry to the waters of the sea might be another.
MR WALKER: Unquestionably, your Honour, but, with respect, we are not concerned with control only on so‑called dry land.
KIEFEL J: I appreciate that.
MR WALKER: And not only because of the intertidal zone and billabongs and rivers upstream of the tidal mark are manifestly part of our concern. Sacred sites are found on the foreshore, that is, in the intertidal zone.
KIEFEL J: They are actually found on water as well, as I understand it.
MR WALKER: Quite. Hence the grievance about having more exclusion zone by buffer or otherwise which was legislatively compromised, but the legislative compromise went down to low‑water mark. That, in our submission, is ineluctably defined in this statute as being the boundary of Aboriginal land, and once you have got the boundary of Aboriginal land at low-water mark, it does not matter from time to time with regularity it will be covered with water or not, then one draws a line which has to be a line certain because it refers to legislative competence. It is not going to be from any mark other than the boundary. No other mark is provided. In particular, it is not going to be a mark from where dry or wet changes, assuming that you can draw a line between dry and wet in an intertidal zone. In my experience, you cannot.
Now, you have that low‑water mark which can be surveyed, can be known, and then the statutory language of “within 2 kilometres” and “adjoining” can operate to delineate a zone of legislative competence within which activities can be regulated as a matter of legislative competence, and that, in our submission, entirely accords with the reasoning, the obiter and the ratio in Risk in this Court and it would be contrary to that approach in Risk in this Court to devise an interstitial reading of paragraph (d) by which there, but apparently nowhere else in the statute, Aboriginal land is dry land only, or worse still, is dry land except where it is freshwater or non‑tidal.
KIEFEL J: It would only ever be dry land except that Schedule 1 introduces references to tidal zones. There is nothing in the substance or the body of the Act itself that refers to water.
MR WALKER: But no one has said there is excessive power in a grant to the low‑water mark of a Schedule 1 zone.
KIEFEL J: No, that is not to the point.
MR WALKER: No, but my point is that once the statute has taken that step then that provides the boundary for paragraph (d), and as I say, that is required by adherence to the holding in Risk. Now, the Fisheries Act, in our submission, in any event, fails under paragraph (d) even if all the arguments I have put were incorrect about those waters of the sea not including Aboriginal land, because the “but so that” is not satisfied, see again section 53 in the aquaculture problem.
Finally, in our submission, when one looks at the proviso that covers all of the grant of legislative or limitation of legislative competence in section 73(1) one has the requirement of capacity to operate concurrently and, in our submission, that requires an examination of the provisions of sections 19, 70 and 71 upon which we have already addressed, and the way in which the Fisheries Act is put forward as authorising a licence to be given by fisheries authorities to enter Aboriginal land. The way that argument is put, in our submission, in particular flies in the face of section 19 which regulates the way in which that can be done.
GLEESON CJ: Just at the moment I am having some difficulty finding in the Fisheries Act anything that empowers the granting under that Act of a right to enter any land, whether it is Aboriginal land or non‑Aboriginal land.
MR WALKER: There is one, your Honour, but it is ‑ ‑ ‑
GLEESON CJ: I am looking at section 11(7) that says that licences “shall be subject to such conditions relating to areas” et cetera.
MR WALKER: No, there is not, your Honour. The only one is the one I mentioned yesterday which has nothing to do with licensees and that is found in section 31, and very familiar form, statutory authorisation necessary in order to enter a place.
GLEESON CJ: Yes. That is the lease provision.
MR WALKER: That is very telling because one would expect the daily and intensive entry and remaining necessary for fishing operations to be dealt with explicitly and it is not.
GLEESON CJ: Well, a possible point of view is that the argument against you seems to treat the fishing legislation like a mining Act.
MR WALKER: Yes.
GLEESON CJ: That is, legislation that empowers the government to authorise mining on private land. Forget the particular position of Aboriginal land for the moment and follow up that question that was asked yesterday about what would happen in relation to an individual grantee of land to low-water mark. Mining legislation not only empowers the government to give people rights to mine on land, it also – those rights carry with them under the legislation rights to get on the land.
MR WALKER: And to take bits of it away.
GLEESON CJ: And pay royalties to the owner and so forth.
MR WALKER: Yes.
GLEESON CJ: But just at the moment I am having difficulty finding in the Fisheries Act anything that corresponds to that.
MR WALKER: There is not, with respect. That is our first point, main point, about the Fisheries Act. We would defeat the non‑common law or statutory argument which has been put under both 73(1)(b) and 73(1)(d) by saying that if the Fisheries Act is your candidate then it does not do what you want, and that is it. Now, I have gone into the other arguments in deference to the fact that the issues have been raised about other matters, and the last thing I want to draw to attention in 73(1) is that the concurrency requirement, concurrent operation requirement, refers not only to laws of the Commonwealth but also to:
regulations made, schemes or programs formulated or things done, under this Act -
In our submission, things done under this Act include, of course, from time to time the grant of the estate in fee simple trammelled with the section 19 exclusive manner of granting licences in respect of Aboriginal land.
GLEESON CJ: Is that a convenient time, Mr Walker?
MR WALKER: It is, may it please the Court.
GLEESON CJ: We will adjourn now and resume at 2.00 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GLEESON CJ: Yes, Mr Walker.
MR WALKER: Your Honours, I said that I would note for your Honours certain specific provisions in the Fisheries Act.
HAYNE J: Just before you go to that, can we go back to this public right to fish?
MR WALKER: Yes, may it please your Honour.
HAYNE J: Go to Halsbury, 1st edition, volume 14, at paragraph 1270, you find that it is written:
As the public right of fishery is dependent on the presumed ownership of the soil by the Crown, the area in which the right may be exercised is limited to the Crown’s right to the soil.
That is a view also expressed by one of the authors of that article in Halsbury, who presumably was a relative, who is the author of History and Law of Fisheries published in 1903 where in Chapter XIX, entitled “OF THE PUBLIC RIGHT OF FISHERY AND ITS LIMITS” at page 95 says that:
In tidal waters . . . the public, as subjects of the realm, have the right to fish to the exclusion of the subjects of all foreign powers, except in such parts of those tidal waters as have been legally appropriated as private fisheries.
The authors then develop that proposition both as to public fisheries and private fisheries linking the two to ownership of the underlying soil. Where does that leave us in this case? Is that an accurate statement of what was the position in England? If it is, how do you translate that holus bolus into Australia? I am not quite sure about that step. Even if you do, where does it leave this case?
GUMMOW J: Where does it leave your opponents, I think.
MR WALKER: Your Honours, that basis – perhaps origin – of the public right was referred to by Justice Brennan in Harper 168 CLR at 330, a passage your Honours are familiar with, not conclusively, but with the following phrasing:
there is authority for the view that the public right of fishing is sustained by the Crown’s title to the sub‑soil ‑
His Honour passed over that to what mattered for those purposes in that case which had to do with the legislative competence, not equally being sustained by ownership – not requiring ownership. Now, obviously some intermediate steps must be taken in reasoning from ownership of soil to public right to fish because normally the ownership of something does not mean that somebody else can use it, the opposite.
Before the adjournment, we drew to attention the other passages noted in Harper where it is pointed out that the right of the Crown is held not qua private proprietor but in what I will call the political sense, as a political role, hence the parens patriae role in relation to the public right of fishing occupied by the Crown to protect that right for the benefit of the population.
GUMMOW J: When Justice Brennan said what he said at 330, he picked up the case of Carlisle which is picked up in Halsbury.
MR WALKER: Yes, that is (1869) LR 4 Exch 361.
GUMMOW J: If that is right and the grant under the Land Rights Act means what it says, what follows?
MR WALKER: It may be that the removal from the public domain, that is, Crown ownership, of the bed of tidal waters in the intertidal zone removes that which would sustain a public right to fish and that is as far as we can put it in our case.
GUMMOW J: This will be an alternative or perhaps antecedent ground to the application of De Keyser, would it not?
MR WALKER: Yes, you would not have to worry about whether there is abrogating statute because, on that theory – your Honours, we would wish to be tentative and diffident about this because there is no case that I have come across, or I cannot find a case, that says of tidal lands that when it is other than a public authority or Crown with the ownership all these public rights have evaporated.
HAYNE J: But that is the point. It is this unthinking translation from English law rooted in very diffuse bases into the Australian context that is the largest step that is taken.
MR WALKER: Yes, your Honour. The Court looked yesterday at the example of Harbour Commissioners. In our submission, they have their ownership which is in the nature of a public trust and for specified statutory purposes. That tells us nothing in relation to the way in which that sits with public rights of navigation and public rights of fishing in a harbour which is otherwise apt to accommodate both of those rights.
In our submission, as I said in opening our response to the appeal, the beginning and end of it is in the statute. The statute does not explicitly deal with the public right to fish. What we have been dealing with is our arguments that say first, but you have to deal with it because of the common law because of fee simple; or, second, you have to deal with it because of the section 73 laws, being the Fisheries Act. In our submission, those arguments all yield ultimately to the statutory analysis.
GUMMOW J: Yes, but the phrase “the common law” is used too broadly. It does not say “the common law in Australia”.
MR WALKER: No.
GUMMOW J: There is a threshold question there. Delohery’s Case and ancient rights to lights, for example.
MR WALKER: Yes, your Honour. It is common law in Australia. In Yanner v Eaton 201 CLR 351 at 369, paragraph 27, in the plurality there is a reference to common law rights which never made the journey from England to Australia. That is obviously, if I can put it this way, the country we are in.
GLEESON CJ: We were told the common law right to fish made the journey from England to Australia.
MR WALKER: Yes, no question. It made the journey and was rapidly put to death in many places. That brings me to another point. This case does not raise for consideration the question as to whether, to use some language, it has been extinguished or merely suspended, or whether it has been extinguished in part by the statutes, such as the Fisheries Act. That is whether it remains immanent in the common law to spring back into operation, so as to give liberties to people in the unlikely event that all Fisheries Acts were repealed with no replacement.
This case does not raise that. As we understand it, nobody is claiming to be able to fish without a licence commercially. Your Honours, in the Fisheries Act can I just complete the provisions you have already seen by reference to section 17? That is another way in which fishing can be permitted, they are called special permits, and they include - in a long delayed answer to one of Justice Kiefel’s questions – what are in effect closures by distinguishing between where you can and cannot.
Part III generally speaking relates to fisheries management plans which have the object set out in section 21, and they by their provisions which are enforceable as regulations, section 27, can also amount to the closure of certain areas, and we make reference in particular to Schedule 2, item 2, to be found in the Fisheries Act for matters that may be provided for in a fishery management plan, and they include designating areas as well as designating species and many other propositions.
The power of the Minister includes prohibiting taking of fish in a way that equates for fishery stewardship purposes to forms of closure. One sees that in section 28(1)(a) or (b), and (c) in relation to the use of gear. There are emergency restrictions under section 29 that are possible. I have already drawn to attention the only entry provision which is in section 31 for searching by officers. Section 47 is the general regulation‑making power, and I understand that our learned friends for the Territory will be supplying all the regulations. We have supplied the one regulation that I referred to before the adjournment.
Particularly in paragraphs (2)(b) and (e), one sees fees provided for plus also the regulation by means of a kind of closure. Your Honours are familiar with the expressions of closed and open seasons, for example, which are found in paragraph 2(b) of the regulating power. That concludes what I wanted to do about the Fisheries Act.
Your Honours, we may have misunderstood this, in which case I apologise to our friends, but we rather gathered that it was argued that a power to enter, if there could be found one, would carry with it a power to fish, having entered. In our submission, that is a topsy-turvy form of implication. There is nothing necessarily incidental about fishing for somebody who was in waters. It is not necessary that they fish. It could be said against us, of course, that in order to fish from waters you have to be there. That is the argument we have already addressed in relation to the Fisheries Act, there being an inadequate basis for implication by it being a necessary incident for the statutory scheme of licensed activities.
The Chief Justice asked about the practical capacity to know, when you are afloat, where the low‑water mark is, presumably when the tide is up. In our submission, whatever practical difficulty there is, it is the same for low‑water mark or high‑water mark. That is a matter of observations scientifically recorded and then depicted and disseminated normally by maps, plans or charts. We know that it is something which has to be capable of being measured, ultimately by metes and bounds or other references to the surface of the earth, because it is used for a number of different purposes. We have sovereignty, we have territorial competence in the offshore settlement, we have sea closures under the Aboriginal Land Act (NT), we have, of course, paragraph 73(1)(d) here.
GLEESON CJ: I am a little bit puzzled by that rejection by Justice Selway of the relevance in this case of any question of right to navigate. By hypothesis, these commercial fishermen get there by sea. If these were not navigable waters, we would not have a problem.
MR WALKER: Yes. I think that ought to be understood as being navigation without fishing, not by commercial fishermen otherwise, with respect, that is a puzzle, but I think it means navigation without fishing. Of course, most importantly, the low‑water mark is the expression used in the all important Schedule 1. Schedule 1 is where the lands are described, including my clients’ land, at pages 160 to 161 of the print you have of the Act. As Justice Kiefel pointed out before the break, there are repeated references in that description “by the low‑water mark of the sea coast” and other references to the low‑water mark, as well as, significantly, to the high‑water mark for some of those descriptions.
Now, that is all important because it is Schedule 1 land which is eligible for recommendation under section 10 and it is section 10 recommended land which must be the subject of a grant under section 12 and land granted under section 12 is that which is defined as Aboriginal land in section 3, and Aboriginal land is that which is protected by exclusion of people by section 70, and Aboriginal land is the land, the boundary of which forms the line for the operation of section 73(1)(d) laws. So the importance of it is evident. We are unable to add anything further in relation to the practicality which obviously has been considered and deemed appropriate for all those uses.
I referred to the importance of section 19 for the proviso, that is, the capacity to operate concurrently which appears at the foot of section 73(1). It is highly significant to recall in relation, for example, to the permissions from traditional owners to enter tidal zone in order to use a Fisheries Act licence. It is critical to note that in most cases that will be simply by the traditional owners via the Land Council and Land Trust because of the 40‑year threshold in section 19(7). So they will do it themselves. But in any event, where ministerial consent is necessary under section 19 that is not, a la section 73, a role for the Territory Government. That Minister, of course, is the Commonwealth Minister under section 19.
Your Honours, may we have an opportunity to respond, if so advised, to anything in Ms Perry’s note that is to be supplied?
GLEESON CJ: Yes, certainly. Thank you, Mr Walker. Yes, Mr Jackson.
MR JACKSON: Your Honours, may I deal first with the issue that your Honour Justice Hayne raised with my learned friend, and I wanted to go to two cases that deal with the issue. One of them, of course, is Harper which deals with it briefly, and also the Attorney‑General for British Columbia which deals with it rather more fully.
Your Honours, in relation to that, could I take your Honours to Harper v Minister for Sea Fisheries (1989) 168 CLR 314, in particular the passage which is at page 330. Could I say, your Honours, that the decision in that case was one given at a time after the decision in the Seas and Submerged Lands Case which had been 1975 or 1976 and that case had held that States did not have any proprietary right to the seabed under the territorial sea. So, your Honours, that is the context in which his Honour was speaking. He goes on to say, about half way down the page:
Although there is authority for the view that the public right of fishing is sustained by the Crown’s title to the sub‑soil . . . the competence of a State legislature to make laws regulating a right of fishing in such waters is not dependent upon the State’s possession of a proprietary right in the bed of the seas or rivers over which such waters flow.
That, your Honours, is not decisive of the particular issue because he is speaking there about legislative power as such, but what one does see in Attorney‑General for British Columbia v Attorney‑General for Canada [1914] AC 153 is that the issue is referred to in a number of places and one sees, if I could go to page 169. What is said at page 169, about two‑thirds of the way down the page, that whatever might have been the origins of the notion, the origin and extent of the right refers to:
a protection which gradually came to be recognized as establishing a legal right enforceable in the Courts.
Then one goes, your Honours, to page 170 and your Honours will see a reference two‑thirds of the way down the page to Malcolmson v O’Dea and the reference to the fact that there could be no new exclusive fishery and no public right of fishing could be taken away otherwise than by reference to legislation.
Then one sees, your Honours, at page 172 about point 7 on the page there is a reference to the fact that:
Neither in 1867 nor at the date when British Columbia became a member of the Federation was fishing in tidal waters a matter of property.
One sees then at page 173, the last paragraph on the page, they express the opinion:
that the right of fishing in the sea is a right of the public in general which does not depend on any proprietary title, and that the Dominion has the exclusive right of legislating with regard to it.
At page 174, the end of the first new paragraph on that page, it has been stated:
the right of the public to fish in the seas has been well established in English law for many centuries and does not depend on the assertion or maintenance of any title in the Crown to the subjacent land.
Your Honours, at page 175 about halfway down the page, it is said:
The right to fish is in their Lordships’ opinion a public right of the same character as that enjoyed by the public on the open seas. A right of this kind is not an incident of property, and is not confined to the subjects of the Crown who are under the jurisdiction of the Province.
Your Honours will see the reference, “not a right of property”. Could I just say in relation to it that – and I will come to this a little later – as early as I think 1910 there are references in a decision of this Court to the public right of fishing and navigation being available. May I come to that in a few moments. What that case does seem to demonstrate is that whilst the ownership or perceived ownership of the Crown in the solum of the sea might have been regarded as a reason or rationale for the existence of the public right of fishing, that was certainly no longer the case, or has not been the case, for many years – that is one thing.
Your Honours, the other thing is that if it be right to say, as the decisions support, in our submission, that the right to fish is one which is exercisable not only in relation to tidal waters which cover land of the Crown but also tidal waters that are in private ownership, then it is very difficult to see that there is any relationship between that right and the ownership of the land underneath in terms of the ownership of the land giving rise to the right. Rather, it is something antithetical to the ownership of that land.
Your Honours, that is the first point I wanted to mention. The second is this, that the arguments on behalf of the respondents for whom my learned friend, Mr Walker, appears have involved some, if I could put it neutrally, new assigning, as it were. Some of the submissions which we made yesterday were directed to what appeared to be rather larger claims.
Your Honours, may I endeavour to put shortly what we say, and I seek to do so because of something your Honour the Chief Justice said this morning which does not really quite reflect what we actually say, we accept that the Fisheries Act does not itself say you can go onto other people’s land to take fish. We will accept that the land within the boundaries of the land grants generally speaking – and I had that qualification for a reason to which I will come – is not available for use by a person who wants to fish simply because that person holds a license under the Fisheries Act.
Such a person could not, for example, use the Aboriginal land as a place to draw boats onto, leave them there, smoke fish, do things of that kind, use it as a rubbish dump or anything of that nature. Some authorisation from the landowner, as in the case of any landowner, would be required but, your Honours, in this case one is not talking about entry onto the land, rather, the issue which arises is about fishing in waters which are tidal and are above the land. Your Honours, it is an area in which there have been rights – I use the past tense for a reason I will come to in a moment – to fish and to navigate.
Your Honours, may I postpone coming in a little more detail to the question for a moment, but we would note, your Honours, that the absence from the Fisheries Act of mining legislation type grants of estates or interests suggests, in our submission, that the fisheries legislation now and in the past is a regulation both in relation to commercial and any other type of fishing of the public right to fish.
The ability to fish, the right to fish, derives ultimately from the common law rights. Your Honours will see that provisions of the Act are ones which regulate the exercise of that. The estate given by the Land Rights Act is an estate in fee simple. It carries with it a subjection to public rights to fish and to navigate. If those rights have been reduced or qualified by legislation, so be it. It does not follow that the fee simple is augmented to take over those rights.
Your Honours, I said a moment ago that the land within the boundaries of the grants is not, generally speaking, available for use by fishers. I am speaking of land in the sense of solid land, as it were. But rights to fish and navigate in some cases carry with them some rights to use the shore or the subsoil. We have referred to those matters in paragraphs 42 to 45 of our written submissions. I will not take your Honours to the detail of them now but the point we would seek to make is that, as I submitted at the start of our submissions yesterday, there may be at the edges of these matters some debatable points about whether the ‑ ‑ ‑
GLEESON CJ: But the public right to fish was not a public right to fish in a privately owned fish pond.
MR JACKSON: No.
GLEESON CJ: It is a public right to fish in navigable waters only.
MR JACKSON: I am only talking about navigable title or navigable waters, your Honours, for present purposes.
CRENNAN J: In fact the Ordinance in existence at the time, 1976 Northern Territory Ordinance, refers to private waters in section 42 and says that a licence under the Fisheries Ordinance does not mean you do not have to get consent to fishing in private waters.
MR JACKSON: That is so, your Honour, yes. Your Honours, our learned friend had the picturesque but, with respect, irrelevant example of the billabong, but the reality is what the case is about is about tidal waters. Your Honours, as I submitted yesterday, there may be some question that the margin of these things will arise from time to time. They do not arise in the present case. Your Honours, the question of navigation and the observation made by Justice Selway at paragraph 89 in volume 2 of the appeal books was referred to. May I come to that, your Honour.
Your Honours will see at page 326, in the first sentence of paragraph 89 he is referring to “navigable streams”. Now, your Honours, in, for example, the United States the right to fish, for example, has been held to go beyond tidal areas and to go to navigable streams. So he is speaking there about navigable streams generally. One sees then, your Honours, two sentences further on, he says:
There was no evidence before me that would suggest that any waterway within the claim area was navigable –
which is a smaller area than of course the whole of the land grant –
at least beyond that part of the waterway which was tidal.
Your Honours will see the next sentence, reference to non-tidal waterways. He is really speaking, in essence, although in one sense it is expressed more broadly, about areas other than waters which are tidal.
GLEESON CJ: So the last sentence is really confined by what you said in the first sentence?
MR JACKSON: Yes. Your Honour the Chief Justice also asked about how, for example, crab fishing takes place. Your Honours, I will not go to it now, but your Honours will see a reference to it and to the hanging of pots from buoys in the affidavit of Mr Everett in paragraph 3, which is attached to the submissions on behalf of the Seafood Council that my learned friend, Ms Perry, represented. It is set out there very shortly in paragraph 3.
Your Honours, could I come to the Land Title Act and its relationship with the Land Rights Act? Your Honours have been referred to sections 12(5) and section 20A of the Land Rights Act, and one goes then to the Land Title Act. Your Honours, may I say about it – I have to speak a number of negatives – it does not contain any reference to the attributes of an estate in fee simple. It says nothing about it. In fact, the closest one gets to anything about fee simple is that the term “fee” is defined in section 4 to include a tax.
The second thing, your Honours, is that it does not contain any reference to land which has a water boundary, meaning by a water boundary of the kind presently in question or indeed I think to any other. It does not contain, your Honours, any reference to accretion and the effect of accretion, nor is there a particular statute of the Northern Territory dealing with that topic. Your Honours, it does not also I think contain any reference to the Land Title Act.
Your Honours, one sees that under section 173(1) of that Act the Registrar-General is obliged to register instruments. That gives rise to indefeasibility with section 188 and particularly section 188(2)(b) but, your Honours, the indefeasibility there referred to is in respect of estates or interests in land, and expressions of that kind have been treated, your Honours, not just in Vickery, as referring to private rights rather than to public rights such as the rights of fishing and navigating.
Your Honours have the reference to Vickery 11 SR (NSW) 354. May I go to it for just one moment. At the bottom of page 363 your Honours will see the passage about 10 lines from the bottom:
In the case of the Real Property Act there is no such object. The Act is designed to enable dealings in land unhampered by the technicalities and pitfalls –
et cetera. But your Honours will in the passage that goes on from there to the end of that paragraph on the next page, what is said is that the person is to:
obtain a title free from the interests of any persons who have not registered those interests in the manner prescribed by the Act.
Then there is a reference to the absence of machinery for destruction of public rights and so on. To rather similar effect was what was said in the New South Wales Court of Appeal in Jennings v Sylvania Waters Pty Ltd [1972] 2 NSWLR 4. A Court of Appeal whose members were Chief Justice Kerr and Justices Jacobs and Mason. That was a case where, as can be seen from the headnote, the owner of riparian land was granted in fee simple the whole of the bay, including any part of the Georges River called the riverine land.
If I could go to the last paragraph on page 5. It was held that at common law the plaintiff’s riparian rights and rights to navigation on the river were natural rights, not easements, and passed to them ‑ ‑ ‑
HEYDON J: A submission, I think.
MR JACKSON: I am sorry, your Honour.
HEYDON J: You are reading a submission of Mr Rath and Mr Tobias.
MR JACKSON: No, I am not. I am reading the headnote, I am sorry. I am reading the last paragraph ‑ ‑ ‑
HEYDON J: At the bottom of page 5 he is describing the submission of Mr Rath.
MR JACKSON: I am sorry. I must have said “page 5” by mistake. I was simply looking at the bottom of page 4, the paragraph numbered (1). What I was going to go to was the holding which is set out in paragraph (3) of the headnote and also paragraph (4) and then take your Honours to the relevant passages.
Your Honours perhaps if I could abbreviate this by going to page 11. Under the heading “Fourth plea” you will see a reference to the fourth plea. The fourth plea is set out in the paragraph commencing between letters B and C. Your Honours, the discussion then commencing about letter F on page 11 is in relation to the indefeasibility provisions of the Real Property Act and what is said, your Honours, at the bottom of page 11, it is submitted by Mr Riley that:
the riparian owner’s rights, ex jure naturae, of access to the waters of the bay is an interest which, unless it is notified on the certificate of title of the defendant is an interest from which the defendant holds free under s. 42.
Now, your Honours, if I refer your Honours to the whole of the remaining paragraph, but then about letter B it is said:
There are many natural rights which go with the ownership of land. The well known one is the right of support from adjoining land. It is true that this right does not involve –
Your Honours will see the remainder of what is set out there. Your Honours, the point I would seek to make is that the finding seems to be that there are rights that go with a fee simple, in effect, that do not have to be notified. So too in our submission are there obligations. Could I note one further feature, your Honours. Your Honours will have seen at page 12 in the paragraph commencing just after letter D, there is a reference to what was said by Justice Isaacs in Dabbs v Seaman, namely:
The accessorial right is included in the grant itself, and is evidenced by the Certificate without special memorial or specification.
Your Honours will have seen from the certificates of title to which our learned friends referred that of course the boundaries are stated as being boundaries which are water boundaries.
That being so, the reference to water boundaries carries with it the fact that there are obligations and rights that relate to them which are in fact, in any event, stated on the certificates of title.
Your Honours, could I give your Honours a reference to Woodman and Nettle, Torrens System in NSW. We have an extract at page 10226 speaking of the limits of indefeasibility. It is loose leaf service, paragraph 42‑120 which says indefeasibility of title is not as all protective as a concept as may appear at first site. Your Honours will see that paragraph refers also to Jennings v Sylvania Waters Pty Ltd and it refers to the notion in Dabbs v Seaman at page 10257 in paragraph 42‑300.
Could I also say, your Honours, that the point of those decisions, in our submission, is that a distinction is drawn between private or proprietary rights on the one hand and, on the other hand, public rights and that distinction, your Honours, was also drawn by Justice Aickin with whom Justices Stephen and Mason agreed in Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295 at 311. What was being spoken of there was an estate or interest in land pursuant to the Mining Act (Tas) but your Honours will see the ordinary meaning of “estate” or “interest” as used, for example, in the Northern Territory indefeasibility statute would be to the same effect. The relevant passage is at page 311 commencing about three-quarters of the way down the page where his Honour said:
The word “right” in that definition does not in its context mean a public right; it means an individual right of a proprietary nature –
When he is speaking of the definition it is in the immediately preceding paragraph. He said, a couple of lines further down:
In my opinion the ordinary meaning of the compound expression “estate or interest in land” is an estate or interest of a proprietary nature in the land. This would include legal and equitable estates and interests . . . It does not embrace interest in which the person concerned has no greater claim than any other member of the public.
He refers to “public highways” in the next lines and over to the top of the next page.
May I say, your Honours, that that passage was applied to a provision of the Land Rights Act in fact in R v Toohey and Another; Ex parte Meneling Station Proprietary Limited and Others 158 CLR 327 by Justice Mason at page 342 and the first new paragraph on that page, and also by Justice Wilson at page 351, two‑thirds of the way down the page. Your Honours, one of the decisions referred to by Justice Mason in that case is a decision of Justice King in the Supreme Court of Victoria in Harada v Registrar of Titles (1981) VR 743. Could I just say, your Honours, that in that case the judge also applied a proprietary test in relation to indefeasibility.
Your Honours, may I just say something about the right to use to roads? That issue, of course, is dealt specifically by section 68 of the Land Rights Act. Your Honours, I will not go to the terms of it, but that very much reduces, in our submission, the spectre of businesses being established which are incompatible with Aboriginal land for the areas of grants and, of course, your Honours, any interest would have to be one granted by the Land Council.
Could I come, your Honours, to what was said about section 69 and the sacred sites provision? Your Honours will see that section 69 of the Land Rights Act is not concerned only with the areas of granted land. It is concerned with land in the Northern Territory, and “sacred site” is defined by section 3 of that Act.
Your Honours, the provisions and what emerges from it is that whatever might be the provision under the general legislative power of the Northern Territory, the Commonwealth Parliament has given the Northern Territory legislature power to declare what sites are to be sacred sites. Your Honours will see that in the definition of “sacred site” in that Act.
Our learned friend’s argument yesterday in relation to section 69(2A) that one could not treat section 69(2A) as permitting the Northern Territory legislature to make any law it likes about entry onto sacred sites rather neglects the terms of section 69(1) itself, but also the terms of section 73(1)(a), which make it clear that the legislation in relation to sacred sites is to have particular beneficial effects. Our learned friend’s argument rather worked on the assumption the legislature was going to exercise its powers without due regard to the interests of a significant part of the population, and your Honours, if one looks at the actual legislation that clearly is not so.
Your Honour Justice Gummow raised a question about the interpretation provision in section 66 of the Land Rights Act which defines the term “estate or interest in Aboriginal land”. May I go to it for just a moment, your Honours. What it says is that a reference in Part VII of the Act, which includes sections 70 to 74 and so on, includes a reference to “a mining interest”, which is defined, then your Honours will see the other items mentioned. Could I just say two things about it? Mining interest, as I said, is defined by section 3, but miner’s right has an application which is limited by the terms of section 75 of the Act to in effect existing miner’s rights.
Your Honours, if one looks to see how the definition is used, the existence of the definition does not, in our submission, cast much light on the matters presently in issue. Your Honours, if one goes to section 67A, one sees a restriction on the grant of any estate or interest before the claim is finally disposed of. Any attempts to do so are treated as being of no effect. There is an exception to that in section 67B and your Honours can see the effect of that in section 67B(9). Your Honours will see the term “estate or interest” referred to also – perhaps I could just list the provisions - section 68(4), section 70(2) and subsection (4), and also section 71(2), but in the end, with respect, not much is gained from the existence of the definition.
I should invite your Honours to note one curiosity and that is to be seen in section 67A(12) to (14) at page 146. Your Honours, I mention that simply so that your Honours will not think we have not mentioned it. You will see that subsection (14) defines “qualifying land” as being “land between high and low water marks” and your Honours will see the remaining part of that definition. That makes it qualifying land.
You then have in subsection (12) the provisions which say that the traditional land claim is taken to have been finally disposed of to the extent that it relates to qualifying land as described in the regulations. Your Honours, the lands referred to there would have been covered by water. The provisions appear to have been designed to deal somewhat peremptorily perhaps with claims to those areas that were unrelated to claims to any other land. Your Honours, I mention that purely for completeness.
Your Honours asked about the ad medium filum rule. In Williams v Booth (1910) 10 CLR 341 - your Honours should have a copy of this - the rule was treated as applicable in Australia. Justice O’Connor dealt with the issue at page 353. Your Honours will see at the top of page 353 he said:
The existence in English law of what may be called the medius filus rule of construction, in respect of grants of land described as bounded by a non-tidal stream, is, of course, admitted. It must also be conceded that Lord v Commissioners for the City of Sydney, has authoritatively decided that the rule must be applied in similar circumstances to the construction of grants of land in New South Wales –
That goes on, your Honours, for the next two sentences, I think.
One sees also from that case that the public rights of fishing and navigation appear to have been recognised. Could I in that regard refer your Honours to Chief Justice Griffith, with whose reasons Justice Barton agreed, at page 349. This was water which was sometimes open to the sea, sometimes not; sandbar build up; sandbar knocked down. His Honour said at the bottom of that page:
No authority was cited to us which even suggests the extension of the rule of medius filus to marine lagoons. The onus is on those who assert the extension. But, even if it were not, the consideration that such lagoons are substantially part of the sea, and may be of public use for fisheries or even for navigation, at some times if not all, would exclude the basis of the rule applicable to fresh water rivers.
His Honour clearly treated the principles as applicable. That area was one that, I think later became – would now be known as the lagoon at Dee Why – that is page 346. I should have referred also to page 355, Justice O’Connor. At the bottom of page 355 in the last five lines it says:
Having regard to the public use of the lagoon for fishing, and its possibilities for other public uses in the future ‑
That is not a decisive statement of the matter, but it suggests that the public right of fishing was recognised in this Court at an early point.
Your Honours, in relation to the licences that are contained in the appeal books, could I just take your Honours for one further moment to volume 1 of the appeal books. Your Honours have been taken to a number of these and could I just give your Honours a reference to page 60 in volume 1 where you will see the fishery area for pearl oysters as described – it is about line 18:
The fishery area is that area extending seaward from the high water mark or a river mouth to the outer limit of the Australian Fishing Zone.
So that is a clear indication that the high‑water mark is involved. So, too, your Honours, at page 65 the trepang fishery licence, your Honours will see the second paragraph under the heading “Area”, and also the Aboriginal coastal licence at page 67, paragraph 1.1, “extending 1 nautical mile seaward from the coastline”.
Might I take your Honours to the Aboriginal Land Act (NT) for a moment in relation to the effect of closure. One sees in that Act two further provisions, one being section 18 which provides in relation to in effect existing licences, that the persons who hold those licences:
before the publication of a notice . . . may, together with any persons who assist or work for the holder, enter and fish the area of closed seas referred to in that notice.
Your Honours will also see section 20 which says:
Nothing in this Part –
which includes the closures –
shall prevent the bona fide transit of a vessel through seas which are otherwise open to that vessel.
It leaves a question or two, no doubt, but, your Honours, the issue of navigation has been referred to in part.
Your Honours, could I refer very briefly to what was said in Gerhardy v Brown. As we have said in our written submissions in reply, the case referred to land in the northwest of South Australia, and Chief Justice Gibbs in his observations was hardly casting his mind to the question of navigation and fishing in tidal waters, and it seems highly unlikely that anything of that nature was intended.
Could I come then, your Honours, to some provisions of the Fisheries Act and the submission we make is simply this, that the provisions are a regulation of the public right. Your Honours, the right is expressed in, for example, the British Columbia v Canada Case [1914] AC at page 169 as a right held by the subject. Your Honours, without going to it page by page if one goes to the history set out by Justice Olney in Yarmirr 82 FCR 533, and the passage goes from pages 594 to 599, that is suggestive, in our submission, of a regulation of the right in its various aspects, whether they be commercial, private or something else, rather than an abolition of those rights.
Your Honours, could I say a couple more things about that. Yarmirr itself is authority for the proposition – and I speak of Yarmirr in this Court – that the public right to fish had not been extinguished in the Northern Territory. Your Honours will see that, and if I could just without going to the case itself, but if one looks at paragraphs 74 to 75 and 98 to 99, it had not been extinguished as at three dates that are referred to there, 1824, 1983 and 1990.
Your Honours, regulating the way in which a right can be exercised is not inconsistent with its continued existence. Indeed, regulating the way in which the right may be exercised does presuppose its continued existence. That is what was said by your Honours in Yanner v Eaton (1999) 201 CLR 351 in paragraph 37, where the joint reasons of your Honour the Chief Justice and Justices Gaudron, Kirby and Hayne said that:
regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists.
Your Honours, could we say this. Your Honour Justice Gummow has referred on a couple of occasions in the course of the argument to the De Keyser principle, but if one is seeking to apply a principle of that kind which is founded on regulation and abolition in the end of a prerogative to a case of this kind, it is very difficult, in our submission, to see that so far as the rights to fish exist, that the provisions of the Fisheries Act and the preceding legislation do any more than reduce or regulate the way in which that power may be exercised, because the right to take fish that is being regulated in these ways, is the right that derives from the common law right, in our submission. That has been so whether one is looking at the situation from 1904 or to now.
Your Honours, we would also submit that if the legislative regime for managing fisheries in the Northern Territory had extinguished the common law public right to fish, then it would also, one would think, have extinguished any native title right to fish and, your Honours, one knows from the decision in Yarmirr that it did not do that. Your Honours, could I just say something else about the Fisheries Act and it is in relation to section 53(2). That is the provision which, if I can take your Honours to it, says that the right recognised by section 53(1) does not:
authorize a person to enter any area used for aquaculture, to interfere with or remove fish or aquatic life from fishing gear that is the property of another person, or to engage in a commercial activity.
My learned friend placed emphasis on aquaculture. It may be that some types of aquaculture that are carried on or could be carried on in areas that are within the land grants, that some kind of licence from the Land Trust would be required. That would be if they are carried on on land.
Your Honours, the speculation that that might be so does not mean that the whole provision should be treated as invalid or inoperative because of the possibility that one day there might be something like operative inconsistency in relation to it.
Your Honours, our learned friends referred also to the previous use or, in their way of putting it I suspect, the previous lack of use of the fishing and perhaps navigation in some of these areas, we have dealt with this in our written submissions at page 14, paragraph 66 and I would simply refer to what is there.
Could I come then, your Honours, to section 73(1)(d) of the Land Rights Act, a matter that was raised by her Honour Justice Kiefel with my learned friend this morning. We would submit that the terms of section 73(1)(d) should be given the larger meaning to which we referred in our written submissions. The distinction between land and waters is one that really appears in the provision. What we would say is that section 73(1)(a) and (b) are referring prima facie to land and (d) is prima facie referring to waters. When one speaks of waters of the sea in this context the waters of the sea are those which are the tidal waters which are whether they are within or without the boundary of the land. The word “adjoining” is one that covers waters above as well as waters that are seaward and your Honours, Justices Toohey and Kearney, dealing with this matter, thought that was fairly clear.
Your Honours, I think there are two final things I would like to say – I hope, final. One is that the decision of this Court in Risk does not really decide any issue. The issue was specifically left open in paragraphs 31 and 32 of the decision in that case. The last thing, your Honours, is this. We have had some difficulty and thrown away a number of attempts in the wastepaper basket of attempting to arrive at what would be an appropriate order if we were to fail but our learned friends’ case were to succeed, the
reasons being that there is, if I may say so with respect, something of a slightly moveable feast about those submissions.
Your Honours, could we say with respect that, if it is contended, as it appears to be, that some different order should be made from the order which the Full Court made, we would submit it is incumbent on our learned friends to have the first go at it, as it were and we will endeavour to do the same, but we would ask that a form of order that would be sought would be put forward by our learned friends.
GLEESON CJ: I understood it to be common ground that – you and Mr Walker can correct me if I am wrong – Mr Walker does not now seek to sustain paragraphs (a) and (c) of the declaration on page 508.
MR JACKSON: Yes, your Honour, I accept that. Where the difficulty arises is that it was not clear, with respect, to my learned friends’ argument, at least to us, whether the position being contended for related only to, say, commercial fishing as distinct from fishing that might be carried out by persons who were engaged in it for recreational reasons.
GLEESON CJ: Maybe, Mr Jackson, the most convenient way to deal with it is this. We will give Mr Walker seven days from today within which to put in writing the order that he claims should be made in the event that we substantially dismiss your appeal and any submissions he wants to make on any consequential orders as to costs that might follow any significant variation of the orders made, and we then give you a further seven days to put in your response.
MR JACKSON: Yes. Thank you, your Honour.
GLEESON CJ: Is that convenient, Mr Walker?
MR WALKER: Yes, may it please the Court.
MR JACKSON: I am pleased that your Honour mentioned the question of costs because your Honours will have seen the terms of the grant of special leave. The situation has changed a little in that time and it is a matter on which I would need to seek some instructions, whether to seek to vary the order.
GLEESON CJ: Thank you, Mr Jackson. We will reserve our decision in this matter. We will adjourn for a few minutes to ‑ ‑ ‑
MR BENNETT: Would your Honour ‑ ‑ ‑
GLEESON CJ: I do not think you have a right of reply, Mr Solicitor. You are a respondent.
MR BENNETT: I do not have a right of reply, your Honour. All I wanted to seek was leave to put in some short submissions dealing with a number of matters raised by my learned friend, Mr Walker, which went further than his written submissions. I can itemise them if your Honours wish.
GLEESON CJ: Yes, within seven days.
MR BENNETT: If your Honour pleases.
GLEESON CJ: Thank you. We will adjourn for a few minutes to enable people to rearrange their papers for the next case.
AT 3.10 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Constitutional Law
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Native Title
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Property Law
Legal Concepts
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Jurisdiction
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Standing
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Statutory Construction
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Judicial Review
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