Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors
[2007] HCATrans 721
•4 December 2007
[2007] HCATrans 721
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 TUESDAY, 4 DECEMBER 2007, AT 10.17 AM
Copyright in the High Court of Australia
__________________
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR V.B. HUGHSTON, SC, for the appellants. (instructed by Solicitor for the Northern Territory)
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR S.A. GLACKEN, for the first, second and third respondents. (instructed by Northern Land Council)
MS M.A. PERRY, QC: If the Court pleases, I appear with MR G.J. KENNEDY for the fourth respondent. (instructed by Cridlands)
MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MS R.J. WEBB, QC, for the fifth respondent. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Your Honours, the appeal is concerned, of course, with two grants made pursuant to the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976. May I come to the terms of the Act in just a moment, but could we say something very briefly about the base facts. The grants are made to low‑water mark and in the case of rivers, et cetera, land would have a line drawn across the mouth from low‑water mark to low‑water mark. They include tidal waters within the boundaries and the areas covered by the tidal waters fall into two categories.
One category is that above low‑water mark the land above which is covered each day in parts by water and the extent of the foreshore in the Northern Territory areas may be very great indeed. The other category consists of land covered by tidal waters in rivers and bays, et cetera, landward of the line drawn across the mouths of them. The waters are tidal and many parts are covered by the waters at all times although there are, of course, foreshores within those rivers, bays, et cetera. The rivers can be tidal for very great distances. In that regard, could I refer your Honours to volume 1 of the appeal book at page 151.
You will see, if I can go to the bottom left‑hand corner of the page, that there is a reference to near Burketown Crossing, the title extent of the river, freshwater inland at that line. If your Honours look at the scale on the page about the middle of it on the bottom you can see that it is a very considerable distance until one gets to the top right‑hand corner where there is a reference to the Southern Gulf of Carpentaria.
Your Honours, could I also, so that your Honours may know the location of the area one is speaking about, give your Honours a map of the Northern Territory showing on the left‑hand side the boundary with the border with Western Australia, on the right‑hand side the border with Queensland and you will see the pink shaded area of the Arnhem Land Aboriginal Land Trust at the top of it.
Your Honours, the Islands Trust does not I think appear readily from that but that is perhaps because of the nature of the grant or the area of the grant, but your Honours will see a large area and with quite a number of rivers running into it and a number of bays. The expression, “Blue Mud Bay” has been used on a number of occasions in the documents and your Honours will see Blue Mud Bay in the point which I am seeking to indicate about halfway down the page and there is the title Blue Mud Bay in the small blue writing.
Yours Honours, as the material demonstrated, and I am referring in particular to the affidavit of Dr Pyne in volume 1 of the appeal book at page 138, paragraph 4, a very large part of the coast of the Northern Territory, some 84 per cent, is within the boundaries of such grants and that was expected to increase to about 88 per cent; that is at the top of page 139.
Your Honours, the decision of the Full Court of the Federal Court has held that the Fisheries Act (NT) has no application in the waters to which I have referred. Your Honours will see that referred to in volume 2 of the appeal book at the bottom of page 476 at paragraph 105 and, your Honours, the order to that effect is in volume 2 at page 507.
Your Honours, could I say in relation to that that the declaration that was made was that the Fisheries Act has no application in those areas. We are conscious that a somewhat lesser claim appears in fact to be made, namely, that licences may not validly be granted under section 10 of the Fisheries Act to fish in respect of those waters but we also challenge that. I will come to the orders a little later, if I may.
KIRBY J: Is that suggesting that the actual declaration made was wider than was sought?
MR JACKSON: Yes. Your Honour, might I say shortly about that – and I will come to this in a little more detail – that essentially it amounts to this. We had succeeded before the primary judge. On appeal the order that was sought by our learned friend’s side and the order that was made was one to the effect that the Fisheries Act had no application in these areas. We said, assuming everything else be correct, that surely could not apply to such things as fisheries management plans and so on, as distinct from granting licences to people to fish in the area.
Some correspondence ensued in an unsatisfactory fashion in the sense that we are unable to arrive at a resolution of it for reasons to which I will come but, as your Honours will see from the statement of the issue contained at the commencement of our learned friend’s submissions in this case, a rather narrower view appears to be taken by them and I would refer also to the last paragraph of their written submissions. May I come to that in a little more detail later, your Honours.
KIRBY J: There is an amended order at 507 and 508.
MR JACKSON: Indeed, your Honour, that is the order that is challenged.
KIRBY J: Yes, but in paragraph (b) the second order is:
does not confer on the second respondent a power to grant a licence under that Act –
but that does not cure the problem that you have just raised.
MR JACKSON: The problem we have raised is paragraphs (a) and (c) of that order as distinct from paragraph (b) but I wish to make it clear, of course, that we challenge the order that is the subject of (b) as well.
KIRBY J: Would this not be a matter you would have to raise before the Full Court of the Federal Court? Did you seek to have the court align its orders with the issues for trial or issues for appeal?
MR JACKSON: Your Honour, our learned friends said, “We are prepared to have some amendment made by consent before the Full Court”. There were some difficulties in doing that for a number of reasons and, your Honour, may I come to those, and that is not the only reason why the matter is here. If the orders had been amended to the form that would, in our submission, have been as satisfactory as might be consistent with the orders of the Full Court, we would still be appealing from those.
Your Honours, in arriving at the conclusion to which I have referred, the Full Court also appears to have held that the public rights of fishing and of navigation do not apply in those waters. Your Honours will see that referred to at volume 2 of the appeal book at page 472, paragraph 90, and their Honours there said:
we are satisfied that a grant of an estate in fee simple to the low water mark under and in furtherance of the purposes of the Land Rights Act as revealed in its text and context conferred a right to exclude from the intertidal zone including a right to exclude those seeking to exercise a public right to fish or to navigate.
Your Honours, ultimately the conclusion arrived at by the Full Court appears to turn on one or both of two matters; one being the Full Court’s views of the provisions of the Land Rights Act relating to access to land, the subject of the grants, on the one hand, and on the other hand, the fact that the grants were grants expressed to be in fee simple. Your Honours, we would be seeking to contend that those views were erroneous and that the Territory has power to legislate to control and regulate fishing in the title areas within the grants and also, your Honours, that the grants are subject to public rights of fishing and to navigation.
Your Honours, might I say before going to the Land Rights Act just one further thing, that in relation to both the aspects which I have just mentioned there may be some issues at the margins of them which will fall to be decided by courts in future cases but they do not require decision in this case. Your Honours, could I go then to the terms of the Land Rights Act and the copy to which I am referring your Honours is the copy that your Honours should have.
KIRBY J: Do you identify those intriguing issues that you just mentioned that are going to have to be dealt with in the future so that we do not deal with them in this case or attempt to do so?
MR JACKSON: May I give one example and that is the question of the extent to which persons exercising a right to fish or legislation conferring a right to fish might contain an ability to use the seabed of waters within the boundaries of the grants. For example, is it possible to affix nets to the solum, as it were, for the purpose of, say, barramundi fishing and things of that kind. Issues of that kind may well arise in the future, but they do not actually fall for decision now. That is the point I am trying to make, your Honour, that there are questions which may arise in future cases, to put it shortly.
KIRBY J:They are not governed by the Fisheries Act (NT)?
MR JACKSON: They are, your Honours.
KIRBY J:Do those questions arise if the appeal is dismissed?
MR JACKSON: In our submission, no, your Honour, because the approach that has been taken in the Full Court has been to declare, at the narrowest, the power to licence to be outside the power of the Territory. The point I am seeking to make is to recognise that because one is talking ultimately perhaps about questions of intersection, there will in the future be questions of intersection that may arise but there are not particular provisions of it challenged as being on the margin in this case. I am going to give your Honours a reference as to where the Act is to be found. In volume 1 of annexure 1 to our submissions, behind tab (b) is a copy of the Land Rights Act as at the time the decision was given in the Full Court. You will see that there have been some amendments in the copy of the Act that precedes it but I intend to refer to the one behind tab (b). If I could turn first to section 10 of that Act.
KIRBY J: Is this the Act that followed Justice Woodward’s inquiry?
MR JACKSON: Yes. The Act followed Justice Woodward’s inquiry, yes. There have been various amendments to it, of course, over the years. If I could just say one thing about it, at the time when the Act in its original form was enacted, the Northern Territory was not self‑governing and so references to Acts were references to ordinances and so on, and to the Northern Territory (Administration) Act rather than to other enactments later.
KIRBY J: I know that in the reasons for judgment of the Full Court there are references to Justice Woodward’s inquiry but are there materials available to us that explain the overall purpose of the Act of 1976?
MR JACKSON: Your Honour, I am not sure that the whole of those reports are before the Court but there are various references in the decisions to what seem to be the relevant parts of the report first of all and your Honours will see various references in the cases to the purposes of the Act, purposes of the Act really being those stated, in a sense, in it, namely, to provide, if one looks at the long title of the Act:
An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes.
KIRBY J: I am just thinking that the Full Court laid some emphasis upon the beneficial character of the Act and its purpose, in effect, to create a form of legal revolution. Certainly a great change to that which preceded it.
MR JACKSON: A change, your Honour, yes, but the provisions to which I am going to take your Honours are ones which the Full Court referred to and undoubtedly there was a change and the change was to give a title in fee simple with some powers more limited, in some respects, than those ordinarily attaching to a fee simple and for there to be bodies established which were to administer it. When I say bodies established to administer it, I mean by that the land councils and the land trusts. May I come to those provisions, your Honours. If one goes to section 10(1) of the Act, your Honours will see the various paragraphs of:
(i)a Land Trust has been established in respect of land constituting, or included within, an area of land described in Schedule 1 –
and the two areas in question are described in Schedule 1, your Honours. Then, your Honours, one sees in the last three lines of the subsection that “the Minister shall recommend to the Governor‑General” that a grant of an estate in fee simple in that land be made to that land trust. Your Honours will see then that in a case such as this one goes to section 12 of the Act and section 12(1) provides in the first lines that:
on the receipt of a recommendation under section 10, 11 or 11B with respect to land, the Governor‑General may:
(a)in the case of a recommendation under subsection 10(1) . . . execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the grantee –
Your Honours, this land, as I said a moment ago, is Schedule 1 land. If your Honours go to Schedule 1 to the Act, you will see that the fourth area of land is headed “ARNHEM LAND (ISLANDS)”.
GUMMOW J: Page?
MR JACKSON: Page 160, your Honour. Then it is immediately followed by “ARNHEM LAND (MAINLAND)”.
Your Honours, the land, the subject of such grants, is land which is to be registered under the Northern Territory land titles registration system, and your Honours will see that referred to in section 12(5) at the bottom of page 29, and your Honours will see that that provision goes on to say that the Registrar is to “register and otherwise deal with that deed of grant under that law according to its tenor”.
Now, your Honours, if I could pause at that point, what emerges, of course, is that subject to any specific provisions of the Land Titles Act the grants are to be treated as title to land held in fee simple under the laws of the Territory, no more, no less.
GUMMOW J: I was wondering about that, Mr Jackson. Is there any evidence as to grants of land in fee simple in the Territory completely outside the Land Rights Act, but of foreshore, and of the impact upon the Territory’s fishing legislation upon those grants?
MR JACKSON: I do not think there is any evidence in the case, your Honour, on that point, no. Your Honours, could I just say in relation to the fact that the land is to be treated as held in fee simple under the laws of the Territory, that was a matter which was adverted to by Justice Sackville in Director of Fisheries v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 489 at page 525. Justice Spender agreed with his reasons. Your Honours will see at paragraph 156 on page 525 that his Honour said that:
Without expressing a final view, I should indicate that, in my view, there are obstacles in the path of accepting the cross‑appellants’ contention that the grant of the fee simple estate to the Arnhem Land Trust, of itself, carried with it exclusive rights to fish in the Waters.
Your Honours will see then in the next sentence that he refers to section 12(1) of the Act, and section 12(1) is the provision that makes provision for the grant of the deed, that:
carried “all the normal incidents of such title” (to use the language of the Second Report ‑
Your Honours, that reference back to paragraph 45 of the reasons can be seen at page 497:
If that is correct, it would seem to follow that the Arnhem Land Trust’s right to “enjoy the exclusive right of fishing in [the Waters] or to grant such a right to another as a profit a prendre is qualified by the paramount right to fish vested in the public” (Harper v Minister for Sea Fisheries . . . See also Attorney-General (British Columbia) . . . I also think that there are difficulties with the contention that the “scheme” of the Land Rights Act is to confer on the Arnhem Land Trust exclusive rights to the Waters.
Your Honours, the discussion of that issue continues by his Honour in paragraphs 157 and 158.
KIRBY J: Could you just explain why his Honour did not express a final view but did express this view? How did that arise in that case?
MR JACKSON: It arose, your Honour, because in the end the court took the view that the issues they had been required to answer were issues which were expressed in a manner ultimately unsatisfactory to answering. Now, no doubt, there was no actual need to make observations of this kind, but no doubt his Honour thought that to raise those topics in relation to it was something that indicated the difficulties in dealing with questions of that kind in so abstract a form.
HAYNE J: A cross‑reference given in paragraph 156 is, I think, wrong. I think it is a cross‑reference to paragraph 55, not 45.
MR JACKSON: I was going to mention that, your Honour. I realised I had made a mistake in saying 45 as I looked at it, but thank you, your Honour. So we would refer to those paragraphs in his Honour’s reasons, but the reason why I refer to them is that they do reflect a conception of a grant in fee simple but, of course, your Honours, there are some differences which arise under the Land Rights Act.
There are some special provisions made for occupation of land, for example. If one goes to section 12A, which your Honours will see at page 38, there is provision made for occupation of land by the person who is the director under the Environment Protection and Biodiversity Conservation Act 1999. There is provision made in section 14 for occupation of land by the Crown or by a Commonwealth or Northern Territory authority, and there is provision made in section 18 for the occupation of land by missions.
Your Honours, another difference which occurs is the inability to dispose of the land – dispose of it finally. That is in section 19(1) and your Honours will see that:
Except as provided by this section or section 19A or 20, a Land Trust shall not deal with or dispose of, or agree to deal with or dispose of, any estate or interest in land vested in it.
Now, your Honours, again however, there are exceptions to the generality of that proposition and your Honours will see those in, for example, section 19(2) which relates to – if I could put it very briefly – Aboriginal interests. Your Honours will see also section 19(3) which relates to public or mission purposes, and there is then a power in section 19(4A) which is not limited by reference to particular purposes ‑ unlike those earlier provisions – but it provides:
With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council –
there can be a grant of –
an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose.
Could I say, your Honours, that the consent of the Minister is not required in all cases. It is not required if the estate or interest to be granted is for less than 40 years. That appears from subsection (7).
KIRBY J: How does this bear on any suggested error on the part of the Full Court? I have just lost the structure of your argument.
MR JACKSON: I am sorry, your Honour. Your Honour, may I answer the particular first and then more generally. As to the particular, your Honour, section 19(4A), and I intend to come back to it in just a moment, but section 19(4A) was a provision that was relied on by the Full Court as indicating, in effect, that because the Trust was able to grant estates or interest in the land, then that was something that militated against the contention that there could be fishing rights which are granted pursuant to a Fisheries Act.
GUMMOW J: But if Mr Walker were correct and the Land Trust was not encumbered – to use that word – by the fisheries legislation and the Land Trust itself wanted to set about exploiting this resource, what in the Land Rights Act would bear upon that? Would they need the consent of a Minister or would it be just section 19(4A) or ‑ ‑ ‑
MR JACKSON: That is where the power would have to come from, your Honour.
GUMMOW J: That would have to be the source, would it?
MR JACKSON: Yes. Your Honour, I will come back to making a submission that that would be an inappropriate view to be taken about it but may I come back to ‑ ‑ ‑
GUMMOW J: Yes. I am just trying to understand where it would go.
MR JACKSON: Yes.I am sorry, what I was seeking to deal with at the moment was to indicate really what the nature of the rights stated in the Act as being those appropriate, those given by the grant of fee simple were. That is what I am seeking to do, your Honour, in answer to your Honour, Justice Kirby. I am coming to the most relevant provisions in just a moment, if I may. Your Honours, what I was going to say was this, that the Land Council’s powers to act under section 19(4A) are themselves circumscribed to a degree by section 19(5).
Your Honours, may I come then to the most important, for relevant purposes, provisions of the Act and they commence with section 70. That is at page 151. Your Honours will see that section 70(1) establishes a general proposition that “A person shall not enter or remain on Aboriginal land”. Perhaps hardly surprisingly neither “enter” nor “remain on” is defined but the term “Aboriginal land” is defined and it is defined by section 3(1) at page 1 to mean, relevantly “land held by a Land Trust for an estate in fee simple” and that is land of the kind that is presently involved.
Your Honours will see that the generality of the prohibition contained in section 70(1) is reduced a little by the fact that there are some exceptions. Your Honours will see that the exception of the most particular relevance for present purposes is section 70(2A) and your Honours will see that section 70(2A) provides for a defence to a charge under section 70 in a number of circumstances. They are, “performing functions under” the Land Rights Act itself. They also include entering and remaining on the land “otherwise in accordance with” the Lands Rights Act, or, entering or remaining on the land “in accordance with” the “law of the Northern Territory.” In our submission, there is a clear recognition of the fact that laws of the Northern Territory may provide for entry on or remaining on land the subject of a grant under the Act.
Your Honours, there are then various other subsections of section 70 which provide other defences or entitlements in cases where there might otherwise be a contravention of section 70. Could I refer in passing to section 70(2) which deals with the position where there has been an estate or interest granted in Aboriginal land under section 19(4A).
Your Honours, in looking to see the laws that satisfy section 70(2A) one has the provisions of sections 73 and 74. May I take your Honours to those and, in particular, if I could commence with section 74 which is at page 155. Your Honours will see that it sets out the general proposition that the Land Rights Act –
does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that that law is capable of operating concurrently with this Act.
That provision, in our submission, is a provision which is perfectly capable of applying both to laws of general application throughout the Territory and to laws having particular application to areas the subject of land grants under the Act.
Could I go then, your Honours, to section 73(1). It provides specifically for some aspects of the legislative power of the Northern Territory. Your Honours will see that section 73(1) at the bottom of page 153 says that that power extends to the making of laws of the four classes referred to in paragraphs (a), (b), (c) and (d). May I say something else about them. Your Honours will see that each of the subparagraphs of section 73(1) contains a proviso commencing in each case with the words “but so that” and your Honours will see the nature of the qualification at the end of each of those provisions. Your Honours will see too that each of those qualifications requires the law to take into account or provide for various matters in accordance with Aboriginal traditions.
Could I also, your Honours, before going to the individual provisions of section 73, say two more things. The first is that your Honours will see the concluding words of section 73(1), which in effect mirror section 74 to a degree, that any such law has effect only to the extent that it is capable of operating concurrently with the laws of the Commonwealth and, in particular, with this Act and various other matters. The other thing, your Honours, is that in section 71 of the Act at page 153 your Honours will see a statement of the rights of Aboriginals or groups of Aboriginals to enter upon and use or occupy Aboriginal land.
Could I go then to the individual paragraphs of section 73(1). Your Honours, section 73(1)(a) deals with the sacred sites in the Northern Territory including sacred sites on Aboriginal land. I do not need to deal with that for present purposes.
Could I come importantly to section 73(1)(b). Your Honours will see that section 73(1)(b) empowers the making of:
laws regulating or authorizing the entry of persons on Aboriginal land –
and it has the qualification, of course:
that any such laws shall provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition -
Now, your Honours, may we say several things about the provision. The first is that it appears to be at least one of the provisions contemplated by the words or the expression “otherwise in accordance with a law of the Northern Territory” in section 70(2A). Your Honours, one sees in section 70(2A) the words:
otherwise in accordance with this Act or a law of the Northern Territory –
and section 73(1)(b) is provision which appears to authorise the making of such laws. The second thing, your Honours, is this, that no doubt in some statutory contexts there may be questions about whether a power expressed only as a power to regulate includes a power to prohibit. It all seems to depend on the context. There have been many cases one way or the other on that. But what one does see in section 73(1)(b) is that the expressions used are “regulating or authorising,” and they are expressions which are, in our submission, broad.
Your Honours, in that connection, and if I could take your Honours for just a moment to our written submissions in‑chief at page 5, paragraph 29, the capacity to legislate, to regulate or authorise entry onto Aboriginal land is, in our submission, to enable such legislation to be made for a purpose. It would seem to be, as we say there, a pointless exercise for persons to be authorised to be present on the land, but not authorised to do anything on the land when they are there.
GLEESON CJ: Including the exploitation of any resources?
MR JACKSON: It may be, your Honour, yes. Yes, indeed. Your Honour will appreciate there are many resources to be found there in some cases, in some cases not. The authority is one to enter and to enter for a purpose. Your Honour will see though that there is a limitation provided for by the concluding words of section 73(1)(b). Your Honour, that is the limitation, in our submission, that is appropriate laws provide for the rights to enter the land in accordance with Aboriginal tradition. I will come in a moment, your Honours, to section 73(1)(c), but could I ‑ ‑ ‑
KIRBY J: Do the closing words after the preposition “but” militate against that construction, the answer that you gave to the Chief Justice. The closing words say that:
any such laws shall provide for the right of Aboriginals to enter such land –
So it seems to be focused on entry rather than exploitation of resources.
MR JACKSON: Your Honour, could I just say in relation to that, if one assumes for the moment that an entry onto the land includes entry onto the tidal waters above the land, then leaving aside altogether the question of any common law – if I could call it that – right to fish or navigate, then, in our submission, you have a situation where section 73(1)(b) is a provision which authorises persons to go on the land. They go on land for a purpose and provided that the rights of the Aboriginal persons are protected, then they go on there for a purpose which may include dealing with some of the resources of that land.
GLEESON CJ: Such as minerals? Does the Northern Territory’s power to make laws regulating the entry of persons on Aboriginal land embrace a power to permit miners to go onto Aboriginal land to exploit the mineral resources?
MR JACKSON: Your Honour, that is dealt with specifically in the Act by a quite separate range of provisions. Your Honours will see that in, I think, Part IV of the Act where there is a completely separate regime in relation to mining. I should say, however, your Honours, that mining interests are defined by section 3(1)(a) – the words in brackets of that:
other than a lease or other interest in land, or a right, relating to the mining or development of extractive mineral deposits –
I am sorry, to make this more difficult than perhaps needs, your Honour, but “extractive mineral deposits” is defined by the same section as meaning “a deposit of extractive minerals”. “Extractive minerals” are, to put it shortly, things that you can use for building and it is “soil”, “sand, gravel, clay or stone”, et cetera, and your Honours will see the definition there. So that the answer in relation to minerals generally is a specific regime, but building materials is not.
GLEESON CJ: Would 73(1)(b) embrace a law permitting a pastoralist to enter on the land for pastoral purposes?
MR JACKSON: Yes, it would, your Honour, if there were provisions in the laws which ensured the right of Aboriginals, et cetera. Your Honours, could I just say that perhaps that is one of the issues – I am not suggesting that would arise, but if one is talking about power, that is a possibility. Your Honour asked about the resources of the land. You will see in paragraph (c) that there is power to make:
laws providing for the protection or conservation of, or making other provision with respect to, wildlife in the Northern Territory, including wildlife on Aboriginal land –
and then there is a particular provision about it and also the qualification at the end “but so that”. Your Honours, the point we would seek to make about that is that the term “wildlife” would, one would think, plainly encompass some of the marine animals – if I could put it that way – that one might find in the aspects of the Northern Territory, including some rather large ones that are capable of moving on land as well as at sea; some of the rivers with the name “alligator” attached to them, as your Honours will be aware. But if I could just say this, the term “wildlife”, as we have said in our written submissions, was one which was relevantly although not defined specifically for this Act, it was a term used to encompass marine animals in coastal seas and in tidal waters as well as referring to just animals that were land animals.
Your Honours, the next thing we would say about section 73(1)(b) is that if one goes to the Full Court’s approach to it - your Honours will see that in volume 2 of the appeal book at page 476 at paragraph 103. What the Full Court appears to have said:
while s 73(1)(b) of the Land Rights Act confers a power on the Northern Territory Parliament to make laws regulating entry of persons on Aboriginal land, it does not grant a power to pass laws relating to fishing on, or otherwise taking from, Aboriginal lands –
Now, in arriving at that view the Full Court, as you will see earlier in the paragraph, appears to have placed reliance on the existence of section 19(4A) and could I just say, your Honours, that section 19(4A), to which I took your Honours earlier, one should read with section 19(11) which appears at page 49 which says that:
an estate or interest in land includes:
(a) a reference to a licence granted in respect of that land –
You will see also, your Honours, the reference to “extractive mineral” there. That appears to assume that a power in the Northern Territory to make a law dealing with extractive minerals there. I only say that in passing. Your Honours, the view taken by the Full Court presumably means that because the power to grant “an estate or interest in land” exists in respect of the whole of the land that is granted, that a Territory legislation cannot place some inhibitions on its exercise.
Your Honours, we would submit that a lease, for example, for an abattoir could not be given to a person by a land trust, could not be given to a person who is disqualified by Territory law from conducting a business – such a business – because of previous breaches of health regulations, nor could a lease be given for a casino if Territory law prohibited casinos without a licence under Territory legislation and the same would apply to licensed premises. We would submit, at least the same applies in the Territory.
Fishing, in our submission, is something that is properly controlled by the Territory, the persons who can fish and the circumstances in which they can fish are controlled by laws of the Territory and no doubt the rights of Aboriginals are preserved by section 71 and by the provisos to the provisions to which I have referred.
GLEESON CJ: Do you need a licence to drive a motor vehicle on Aboriginal land?
MR JACKSON: I think the answer is yes, your Honour. I will check that, but I think the answer is yes.
KIRBY J: But I think there may be a difference between entry of, say, a hotel or driving a vehicle in the property. There are social reasons that require licences for everyone in that respect but the theory, as I understand it, behind the Full Court’s approach is that you can enter into this territory which is fee simple but you just have to be willing to pay a fee as you would normally to other people who have fee simple and that is how the statutes are designed to work together.
MR JACKSON: Well, your Honour, could I just say that if one goes to the terms of the – well, sorry, may I start that again, your Honour? What I am seeking to say is this, that if one looks ‑ ‑ ‑
KIRBY J: I do not want to take you off your track because you will have to come to these things after you have laid all this statutory material before us, but I mean, I do not think we should allow the point to pass.
MR JACKSON: Well, your Honour, I do not think your Honours will, but may I just say in relation to it that what we would submit in relation to section 73(1)(b), if I could pause there for the moment, is to say that it is a provision which deals with regulating and authorising entry on the land whether or not a land trust is agreeable to it in circumstances that allow the persons who are given the right to entry to enter for a purpose and if the purpose may be relevantly of any kind provided that the provisions of, for example, section 71 and the proviso to section 73(1)(b) are right, and there is not, we would submit, much purpose in having a power to make laws authorising entry onto the land unless it is authorising entry for particular purposes, which may be narrow or they may be large.
GLEESON CJ: But is it your argument that the Northern Territory Government could licence somebody to conduct a casino on Aboriginal land even though the Land Trust did not want it?
MR JACKSON: Well, it would be possible, your Honour, possible - unlikely to happen, but possible. Your Honours, I do not wish ‑ ‑ ‑
GUMMOW J: Just before you do that, Mr Jackson, if one looks at section 69, for example, it is tangential in a way but maybe it is not, section 66 says:
A reference in this Part –
which is where we are –
to an estate or interest in Aboriginal land includes a reference to –
then there are various sections laid out in paragraph (d) there, and they talk about “occupation or use” which certainly encompasses the sort of activity the Chief Justice was putting to you; entry might be somewhat less.
MR JACKSON: Well, your Honour, I am sorry, I just did not pick up the words “occupation or use” your Honour was referring to.
GUMMOW J: Section 66(d). It refers one back to some of those sections you were taking us to.
MR JACKSON: Yes, yes. I am sorry, I thought your Honour said (b), but (d).
GUMMOW J: All I am saying is that the draftsman of Part VII certainly knew that entry was one thing and maybe knew that occupation or use is another.
MR JACKSON: Well, your Honour will appreciate that that is an interpretation provision and it has an operation in relation to other particular provisions of that part of the Act, and your Honours I am not certain that they really tell us much about that in that sense. Your Honours, could I just say then that if one goes to ‑ ‑ ‑
GUMMOW J: What I am putting to you I suppose, Mr Jackson, is that transient trespass may be one thing, someone driving a motor car across and so on, but the sort of trespass that provokes an action and ejectment may be another.
MR JACKSON: Well, your Honour, it may be, but could I just say that one is looking at a provision of section 73(1)(b), which is not expressed in narrow terms. It is covering a wide variety of possible situations. It is speaking about a ‑ ‑ ‑
GUMMOW J: Well, I think, Mr Jackson, it is a real problem that the draftsman of this simply did not think about this immediate problem, or alternatively it was thought about and put in the cupboard.
MR JACKSON: Put for the Court to decide, in a sense.
GUMMOW J: It is too hard. The Court will sort it out years later.
HAYNE J: This branch of your argument about entry for purpose assumes perfect generality to the purposes, does it not?
MR JACKSON: Yes, it does.
HAYNE J: And that the purposes are not, for example, confined to dealing with people. There can be an entry for the purpose of dealing with people who are on the land which is quite distinct from an entry for purposes involving a use or exploitation of the land.
MR JACKSON: Yes, your Honour. It is a provision of general application. Could I move then to section 73(1)(d). Your Honours will see that section 73(1)(d) allows the making of –
laws regulating or prohibiting the entry of persons into, or
controlling fishing or other activities in, waters of the sea, including waters of ‑ ‑ ‑
GUMMOW J: That is the problem, you see – “waters of the sea”. These are not waters of the sea, are they?
MR JACKSON: They are, your Honour.
GUMMOW J: Are they?
MR JACKSON: They are, yes.
GUMMOW J: Is that a defined expression?
MR JACKSON: No, it is not. What I was going to say was that the expression “waters of the sea” is one commonly used in Commonwealth legislation to refer to tidal waters of the kind with which the Court is presently concerned, whether they be internal waters or external waters. I will give your Honours the reference to that in a moment. If I could just go back to the provision, it provides for there to be laws regulating or prohibiting a number of things –
the entry of persons into…waters of the sea, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea in Australia, adjoining and within 2 kilometres of, Aboriginal land ‑
There are two possible views, in our submission, of the ambit of section 73(1)(d). We have set them out in our written submissions at paragraph 33. May I take your Honours to that. One view is that the provision refers only to waters seaward of the boundary of Aboriginal land. The other is that it refers to all waters of the sea; that is the waters seaward of the boundary of Aboriginal land but also the tidal waters within the boundaries of Aboriginal land as well as the waters, of course, seaward of it.
One sees also section 74A which relates to the provision of funding for persons who want to be heard on an application for closure of waters, assuming legislation of that kind is made by the Northern Territory. Your Honours will see that it says where –
an application is made… with respect to the regulation or prohibition of the entry of persons into, or the control of fishing or other activities in, waters of the sea, including waters of the territorial sea –
et cetera. It uses the same form of words as section 73(1)(d). Regulation or prohibition does rather assume the existence of some entitlement to fish or navigate in those areas absent such regulation or prohibition.
GLEESON CJ: What is it that produces the consequence that you do not offend the prohibition in section 70 if you fly an aircraft over Aboriginal land?
MR JACKSON: Your Honour, a couple of things. There are no doubt provisions of the Air Navigation Act that allow that to happen. That is the first thing.
GLEESON CJ: I am thinking of a helicopter or something.
MR JACKSON: Your Honour, it is really a question of the reasonable use of land, in a sense. As I understand the position, the decisions of the flights of aircraft over land arrived at the position where it was provided you were flying, in effect, high enough over land it was not treated as a trespass because the land was not at that point ‑ ‑ ‑
GLEESON CJ: Yes, but there are some aircraft that fly very low over land. That is why I mentioned helicopters.
MR JACKSON: Yes, your Honour. I know they have tormented us all, but the reason in relation to those, your Honours, is either they are flying at a level that is not unreasonable, on the one hand, or they are authorised to do it; mostly the latter, I think, your Honour, specific authorisation. Your Honour, if there is a statutory provision, I will endeavour to get it to you.
GUMMOW J: Another possibility is that the draftsman did not really appreciate principles of law about what land means. In other words, they were talking about surface activities.
MR JACKSON: That may well be, your Honour.
GUMMOW J: That is a criminal offence.
MR JACKSON: It may not have been thought necessary to deal with the issue at all. Your Honours, could I just say that there are, in our submission, good reasons for taking the view that the broader meaning is to be attributed to section 73(1)(d). I mentioned, your Honour, first of all the term “waters of the sea”. It is an expression commonly used to refer to tidal waters which otherwise would be inland or internal waters. Your Honours, we have given some references in volume 2 of annexure 1 to our written submissions and, your Honours, it is behind tabs 7 to 10. You will see, your Honours, this first example is the Seas and Submerged Lands Act and in section 10 it describes “internal waters of Australia”. Your Honours will see the usage:
that is to say, any waters of the sea on the landward side of the baseline of the territorial sea –
Your Honours, behind tab 8 is part of the Historic Shipwrecks Act and you will see in section 3A(1)(b), “Where”:
another part of that ship is situated in, or has been removed from, waters of the sea that are within the limits of a State –
Then behind tab 9 there is a provision of the Defence Act which defines “Australian waters” and then your Honours will see (b):
the waters of the sea on the landward side of the territorial sea of Australia –
and also paragraph (d). Then behind the next tab a provision of the Customs Act, section 73(1) and you will see the last three lines:
within waters of the sea within the outer limits of the territorial sea of Australia, including such waters within the limits of a State or internal Territory.
Your Honours, these are not decisive, of course, but the point I am seeking to make about them is that they do contain references to “waters of the sea” which include waters which are internal waters of a State or Australia.
Your Honours, the term “adjoining” that is used, as your Honours will see, in section 73(1)(d) is also, in our submission, apt to refer to waters of the sea above as well as seaward of low‑water mark. That view of section 73(1)(d) appears to have been taken by Justice Kearney, on the one hand, and Justice Toohey on the other, as Land Commissioners. Could I take your Honours first to Justice Kearney in a “Closure of Seas” report.
Your Honours, it is in the volume which is contains annexures 2 and 3 to our written submissions and it is the document behind tab 12 of that volume. Your Honours will see at page 17 of that extract paragraphs 80 and 81. He dealt first of all with a submission that the ability to “close the seas” only referred to parts of the territorial sea. He rejected that in paragraph 80. Your Honours will then see in paragraph 81:
The Northern Territory also submitted that the words “adjoining, and within 2 kilometres of, Aboriginal land” . . . precluded a closure of those seas which lay inside the boundaries of Arnhem Land as defined in the Grants, because seas could not at one and the same time adjoin Aboriginal land and be inside its boundaries.
Your Honour, when he speaks of section 12 he is speaking of a Northern Territory enactment. Hut he goes on to say:
The meaning of s.12(1) –
that is in the same terms as section 73(1)(d) –
is, I think, clear: if there is land that is “Aboriginal land”, and if there are seas that can be correctly classified as “seas adjoining” that land and within 2 kilometres of it, then the Administrator is empowered to close those seas. Whether the seas happen to be within or without the boundaries of Aboriginal land is irrelevant to the question of closure.
Your Honours, the view that you could only go 2 kilometres either side of the line is one that we would not really support, in the first place. What we would submit is that the position is that waters of the sea includes water within or outside the boundary up to the 2 kilometre reference. Could I say also that at paragraph 74 of that report he sets out his views of the way in which the boundary lines are to be construed and he says in the next paragraph, paragraph 75, in the last sentence:
Provided the waters above that land within the boundary, are properly regarded as “seas” and do not exceed 2 kilometres in depth, I consider they could be closed pursuant to s.12(1) of the Act, as being within that distance of Aboriginal land.
Justice Toohey, in relation to the “Borroloola land claim” – and, your Honours, that is in a separate small volume of materials which is called:
APPELLANT’S LEGISLATION, AUTOHRITIES ETC
C. OTHER MATERIAL – Items 27 to 33
KIRBY J: Which tab?
MR JACKSON: I am sorry, it is behind the first tab in that document, your Honour, which is numbered 27.
Your Honours, could I just say in relation to that, your Honours will see on the first page of that extract, paragraph 152, he went on to say in that same paragraph at the top of the next page, page 35 – and at the time this was prior to self‑government in the Northern Territory:
Any such ordinance must provide for the right of Aboriginals to enter and use the resources of those waters in accordance with Aboriginal tradition in the same way that s. 73(1)(b) authorises the making of ordinances regulating or authorising the entry of persons on Aboriginal land but requires provisions for the right of Aboriginals to enter in accordance with Aboriginal tradition. The power of the Legislative Assembly to make ordinances in regard to the waters of the sea within 2 kilometres of Aboriginal land is a power that may be exercised whether the land ends at the high water mark or the low water mark.
Could I also mention, your Honours, two other passages in the reasons in this case in the Borroloola land claim. At paragraph 157 your Honours will see that his Honour said:
Under powers conferred by the Fisheries Ordinance 1965 the Administrator may declare an area of unoccupied Crown land or of water to be a fishing reserve and in general he may prohibit the taking of fish at particular times, in particular areas and otherwise as mentioned in s. 14 of the Ordinance. A grant of land to a Land Trust carries no immunity from the laws of the Territory except that s. 74 of the Land Rights Act reads: ‑
and then he quotes section 74, and then he says that there may be questions arising in the future about whether some ordinances or existing laws are not capable of acting concurrently. Your Honours will note that he works on the assumption that the fisheries law would be applicable and, your Honours, if one goes to paragraphs 208 and 209 on page 47 he said:
Much of this concern –
the concern being expressed by the Northern Territory Fishing Industry Council –
is I think unjustified. Ownership of land under the Act does not include water. The controls imposed by the Fisheries Ordinance are of general application. The reciprocal legislation envisaged by s. 73 of the Act must provide for the right –
et cetera, and your Honours will see he then discusses, in paragraph 209, the particular case.
Your Honours, the next thing we would seek to mention is this, that sections 73(1)(d) and 74A are the only provisions of the Act which deal specifically with fishing and not just with fishing, but with other activities on the sea such as navigation. Your Honours will see the words of 73(1)(d), “controlling fishing or other activities in, waters of the sea”. Your Honours, that, in our submission, does rather support the view that the ambit of section 73(1)(d) is not directed to just the sea ‑ seaward of the boundaries of the grant ‑ but to activities on tidal waters within the grant as well.
Your Honour, in that regard could we refer also to what was said by Justice Mansfield at first instance in Arnhem Land Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1. You will see on page 3 in paragraph [3] he set out the issue as being:
the extent to which the holder of a licence granted by the director under the Fisheries Act may fish, and engage in activities involving fishing, in waters in the inter‑tidal zone overlying land granted to the Land Trust.
You will see, your Honours, that at page 6, paragraph [15] he, in effect, defined the types of waters he was talking about and at paragraph [20] on page 7 referred to the fundamental question for decision. If I could go then, your Honours, to page 8, there is a passage which goes from paragraph [25] through to [35] in which he dealt with the question whether the grants had “the effect of excluding any public or statutory right to fish in the waters?” Your Honours will see that in paragraph [25] there is some history of the matter and that he refers to section 73(1)(d). You will see then, your Honours, in paragraph [26] he refers to reports of Aboriginal Land Commissioners where it has been said that the:
grant has not affected the common law right of the public to enter upon, and take fish from, the tidal waters –
Your Honours will see that dealt with in that paragraph. Then your Honours will see – I will not read it out – that he goes then to paragraph [33] which said that:
In my judgment, s 73(1)(d) of the Land Rights Act is not limited to empowering the Administrator to close the seas for a distance of two kilometres seaward of the low water mark which is one outer boundary of the land. If it did, it could lead to the curious result that the public right to fish in those waters, or the right to fish under licence granted under the Fisheries Act, will have been abrogated and the Land Trust will be authorised to license persons to fish only in those waters, while the waters above the intertidal zone could still be the subject of those rights.
Your Honours, that goes through, really, to paragraph [35] where he also quotes from Justice Kearney. Your Honours, the other point that we would seek to make about it is that if it be the case that section 73(1)(d) refers only to waters seaward of the boundary, then that, in our submission, supports the view that the provisions of section 73(1)(b) do apply and also supports the view that a broad meaning should be given to the definition of “wildlife” in section 73(1)(c).
Your Honours, could I go then to a further matter and that is the effect of the inclusion of tidal waters within the boundaries of the grant. That has two aspects: first of all, what passes in the case of grants having boundaries such that tidal waters are included within them; and, secondly, what happened to the public right to fish and to navigate. Your Honours will see that the grants are expressed to be grants of land, and in the case of the Arnhem Land (Mainland) Grant it is described as a grant of “all that piece of land” and, in the case of the Arnhem Land (Islands) Grant, it is a grant of all those islands. They speak in terms of a grant of land.
Your Honours will see then section 12(1)(d) of the Act. The point I am getting to is simply this – that the grants are grants of land in our submission, as distinct from grants of the waters or in relation to what is in the waters. I am sorry, I refer to section 12(1)(a). It is:
a deed of grant of an estate in the land in accordance with the recommendation ‑
Your Honours will see that the terms used by the Land Rights Act are “Aboriginal lands” and “land”. “Aboriginal land” is defined by section 3(1) to which I took your Honours earlier, “land” is not. What is dealt with by provisions such as section 19A, allowing for the grant of estates and interest, are grants of estates and interest in land. Your Honours have seen the term “Aboriginal land” used in the sections of 70, 71, 73 and 74 to which I have referred.
Your Honours, whilst the term “land” is defined in section 22 of the Acts Interpretation Act to include estates or interest in land, that does not seem relevant for present purposes. Your Honour Justice Gummow was to that effect in Risk v Northern Territory 210 CLR 392 at page 418, paragraph 82 and to the same effect, Justice Kiefel, another member of the Federal Court in that case, in the Federal Court in (2000) 105 FCR 109 at page 122, paragraph 34. That definition does not seem to go anywhere.
What we would submit, your Honours, is that the grant is a grant of fee simple in land covered from time to time by waters. It is not a grant of fee simple in effect in the waters. It is a grant of an estate in land covered by water from time to time. A distinction of that kind, if I could just mention in passing, was adverted to in the Privy Council in Colonial Sugar Refining Co Limited v Melbourne Harbour Trust Commissioners (1927) 38 CLR 547 at page 562. I do not think I need to take your Honours to that. Perhaps if one starts at the bottom of page 561, the last paragraph of that. They inserted a declaration that the appellants were:
entitled in fee simple to the land parcel of the bed and foreshore of the river, being the site of the wharf –
They then noted in the first new paragraph on page 562 that –
In making declarations Nos. 2 and 3, the learned trial Judge appears to have thought that there could be an estate in the water as distinct from the land covered by it. This is a mistake. What the appellants have acquired is an estate in land covered with water, being the site of the wharf.
Your Honours, the view that the grant is really of the bed of the waters does appear supported by the way in which four members of the court in Risk 210 CLR 392 at page 405 in paragraph 31 said:
The area claimed includes the bed of bays and gulfs. If the claim were to be allowed, the grant that would be made would be of an estate in fee simple in that part of the seabed. It would follow that, if granted, the claimants’ interest in the seabed would, on its face, appear to permit them to control access to the superjacent waters.
What we would say, your Honours, in relation to that is that we would, with respect, take issue with the generality of that proposition in two respects. In the first place, if it be correct, it would have to be read with the provisions of section 70(2A) and section 73(1) and it seems clear that those provisions are intended to act as a qualification upon the proposition stated in section 70(1).
The second thing, your Honours, is that if one goes to paragraph 32 of those reasons, about halfway down the page, the part commencing “Nonetheless” the reasons there moot the possibility that there are rights acquired by the grant in fee simple to exclude public rights to fish or to navigate. Your Honours, the existence of public rights to fish and to navigate in Australian waters, whether the subject of a grant of fee simple or not, has been recognised on a number of occasions.
Could I go in that regard to Harper v Minister for Sea Fisheries (1989) 168 CLR 314. If I could go first to the reasons for judgment at page 325 of Chief Justice Mason and Justices Deane and Gaudron, your Honours will see at the top of the first paragraph they agree generally with the reasons of Justice Brennan but went on to say, in the middle of the next paragraph:
Under that licensing system, the general public is deprived of the right of unfettered exploitation of the Tasmanian abalone fisheries. What was formerly in the public domain is converted into the exclusive but controlled preserve of those who hold licences.
I mention that, your Honours, because it appears to be some recognition of the existence of a public right to fish, plus, of course, the acceptance of what was said by Justice Brennan. Could I come to page 329 of his Honour’s reasons. In the last paragraph on that page he said:
It was assumed throughout the hearing, no doubt correctly, that the waters in which the Tasmanian abalone fishery was situated were tidal waters. Accordingly, the right of the owner of the soil over which the waters flow (whether the owner be the Crown or not) to enjoy the exclusive right of fishing in those waters or to grant such a right to another as a profit à prendre is qualified by the paramount right to fish vested in the public.
Your Honours will see that that proposition was elaborated on and it goes through to the end of that paragraph on page 330 and could I also say, your Honours, that after that paragraph he said that:
The public right of fishing in tidal waters is not limited by the need to preserve the capacity of a fishery to sustain itself.
Et cetera. Then, your Honours, at page 334 ‑ ‑ ‑
KIRBY J: Justice Brennan was there talking in common law terms, thought, or common law and prerogative.
MR JACKSON: He was talking about both, your Honour. Your Honour, one would have to assume that Justice Brennan was familiar with the fact that grants of land in Australia have at all relevant times, in any event, been pursuant to statute. We have dealt with this a little in our reply, I think. It is very difficult to discern what actual difference there is. One can say, well, the land grants in the past may have been made pursuant to prerogative, but having said that, one sees now that a land grant in fee simple in Australia is always made, really, pursuant to statute. If one says, “What difference does that make?” the answer seems to be there is none, in our submission, and there is none really because any notion that the ability to grant was dependent on some right of the Crown in the seabed itself was long gone.
GUMMOW J: Mr Walker, just looking at section 69, is there any indication in the materials in this case as to whether any of these areas covered by water are sacred sites?
MR WALKER: I think the proper answer to that is, yes.
KIRBY J: Mr Yunupingu referred to those in his letter.
MR WALKER: The answer is, yes, but that is to any indication. I do not believe there is anything precise at all, but there is unequivocal material to the effect that such sites exist and exist offshore.
GUMMOW J: I am just fixing on the words “enter or remain” which is used in 69, and it may throw some light on what it means in 70.
MR WALKER: Section 69, I said by digression and contrast, for this reason. Section 69 applies to sacred sites being land in the Northern Territory. I stress, land in the Northern Territory. So the offshore sites that I have referred to will not be within section 69 depending upon their location. But if there are intertidal ones – and to imitate an approach that my learned friends will be taking on another topic – imagine that was discovered or acknowledged tomorrow, then section 69 attaches regardless of whether there has been any grant under this Act, that is, regardless whether it is Aboriginal land as defined in section 3, being one of the critical factors in section 70.
Now, why I draw section 69 to attention is this. Section 69 is part of the expedient chosen to protect matters of Aboriginal tradition, including against what is called desecration. It does not require much imagination nor any stretching of judicial notice to appreciate that desecration can include the entry of unauthorised persons, be they individuals or kinds of persons.
CRENNAN J: Is the legislation designating sacred sites?
MR WALKER: There is Northern Territory legislation, namely, the Northern Territory Aboriginal Sacred Sties Act 1989 which is part of the, we submit, suite of provision by so called reciprocity or complementarity between this Commonwealth legislation and the Territory legislation to which section 73 and section 74 refer.
Now, your Honours, the point about section 69 is this. It is concerned with prohibitions against persons who are not Aboriginals acting in accordance with their tradition from entering or remaining upon land that is a sacred site. It has an exception in subsection 69(2A) which is materially verbatim identical with the exception which is at the heart of our argument, namely, subsection 70(2A). In particular, it can be seen that the evocative phrase “or otherwise in accordance with a law of the Northern Territory” appears as well in section 69 as it does in section 70.
One of the questions which we will seek to raise in a pointed way against our friends as the result of the overall analysis is to imply whether it is truly supposed that the statute with the long title this statute has and against the background shown in the travaux preparatoire made available to your Honours is a statute which leaves open the following prospect, that is, the prospect that somebody claiming to be entering land in accordance with what has been grandly called the common law public right of navigation, thereby escapes the sanctions of the law designed to prevent such entry in relation to sacred sites.
The last comment I would make this afternoon is this. My learned friend the Commonwealth Solicitor‑General in particular has leaned on that
canon of interpretation which places close scrutiny on statutes entrenching upon common law rights. Justice Kirby raised this by the familiar language of important aspects of basic rights being grounds to give pause to a court the full finding that they have been swept away or abrogated by statute.
On our reckoning, since about 1904 there has been no common law right of commercial fishing in the Northern Territory, none at all. That will involve us to make that good in due course making good a criticism – indeed, an outright attack – on the conclusion to the contrary effect of Justice Mansfield in the Arnhem Land Case to which we will come. It suffices to say that we submit that sections 10 and 11 of the Fisheries Act which are not novel in their effect and reproduce schemes rather briefer, simpler but still exactly the same has the familiar effect of complete abrogation of the common law right by prohibiting that which the so‑called right, really a liberty, formerly allowed people to enjoy, prohibiting it, making defence and rendering it possible to be done not by appeal to anything dating from time immemorial but from a piece of paper, probably annually renewable and obtained in response to tendering a fee, namely, a licence.
GLEESON CJ: Is that a convenient time, Mr Walker?
MR WALKER: May it please the Court.
GLEESON CJ: We will adjourn now and we will resume at 10.15. The next cases in the list will be not before 12.15.
AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 5 DECEMBER 2007
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