Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors

[2007] HCATrans 324

[2007] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D4 of 2007

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

First Applicant

DIRECTOR OF FISHERIES (NT)

Second Applicant

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

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 21 JUNE 2007, AT 9.32 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MS S.L. BROWNHILL, for the applicants, the Northern Territory and the Director of Fisheries.  (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)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia:  May it please the Court, I appear with my learned friend, MS R.J. WEBB, QC, for the fifth respondent supporting the applicant for special leave.  (instructed by Australian Government Solicitor)

GUMMOW J:   There is a submitting appearance for the fourth respondent, which is the Northern Territory Seafood Council Inc.  Yes, Mr Jackson.  Before we get into the detail of it all, one thing that perhaps comes to mind is the situation of costs in this matter if leave were to be granted.

MR JACKSON:   Yes, your Honour.  The position in relation to that is, as your Honours will see at page 248 ‑ ‑ ‑

KIRBY J:   We saw that but I, at least, found it a bit curious.  Why should the Arnhem Land Aboriginal Land Trust be brought up here essentially at the request of the Northern Territory and the Commonwealth on a basis that they have to bear their own costs?  So far they are the winners. 

MR JACKSON:   Your Honours will see in paragraph 4.1 on page 358, that no special order for costs is sought, so that is the position.  If there were a matter of controversy, that to which your Honour Justice Gummow is about to come, I suspect, would be a matter of significance but ‑ ‑ ‑

GUMMOW J:   We will see what Mr Walker says. 

KIRBY J:   Mr Walker might have another view.

MR JACKSON:   Your Honour, things change. Your Honours, the case involves, it is submitted, issues of very considerable importance for the Northern Territory.  May I in that regard refer your Honours to page 239 of the application book, where your Honours will see set out there the issues in the application and, in particular, the issues of true significance because the decision of the Full Court of the Federal Court applies to some 84 to 88 per cent of the coastline of the Northern Territory.  Your Honours will see that referred to in our written submissions at page 247, paragraph 28.

The Full Court has found that the Fisheries Act (NT) does not have any valid application to the extensive areas which are in question and your Honours will see that at page 187, paragraph 105, in the reasons and you will also see that reflected in the orders, of course, of the Full Court, pages 227 and 228.  The Full Court appears to have reached that conclusion by taking the view that the terms in which the grants in fee simple are spoken of in the Land Rights Act were inconsistent with the operation of the Fisheries Act in that area.

GUMMOW J:   It was not just that, was it?  Did they not stress the entry provision in section 70?

MR JACKSON:   Yes, your Honour, that is so, and I was going to come to that in just a moment if I may.  The grants are expressed to grants of fee simple.  I do not think I need to take your Honours to the detail of that.  The reasons that the Full Court adopted can be seen, in essence, in three passages at page 183, paragraph 94.  One of the matters there referred to is about line 9, the matter to which your Honour just referred, it was said that section 70 is of decisive significance.  May we say in relation to that that section 70(1) of the Act provides - and it is in the bundle of legislation, volume 1, behind tab 1, which provides that:

A person shall not enter or remain on Aboriginal land.

Your Honours, could we say in relation to that, however, that as we have set out in ‑ ‑ ‑

GUMMOW J:   That is a defined term, is it not?

MR JACKSON:   Yes, your Honour, “Aboriginal land” is defined and your Honours will see in, I think, section 3(1) as being:

land held by a Land Trust for an estate in fee simple -

The description of the boundaries of the estates in fee simple is such that it goes to low‑water mark where there is not a gap leading into a river or a bay but where there is a gap there is a straight line.  Some of the water is quite deep, of course.

Your Honours, in relation to section 70, one of the things we refer to in our written submissions at paragraph 22, page 245 is that one does have to take into account the provisions of section 70(2A) and your Honours will see that section 70(2A) says that:

it is a defence if the person enters or remains on the land in performing functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory.

If I could just say one thing about it for present purposes, if a person enters on the land, including waters in that regard, in accordance with a Northern Territory fishing licence granted under the Fisheries Act, why is not, we would submit, such a person doing so in accordance with the law of the Northern Territory. 

GUMMOW J:   Did the Full Court deal with that point?  They say…..section 70(2A) at one stage.  They deal with it in an oblique fashion perhaps.

MR JACKSON:   Yes, your Honour, but what they do not quite do is to recognise that one is not just talking about the common law, but talking about rights which are granted which is the part in which - the basis of their saying that that could not apply.  But what they do not appear to appreciate is that grants are made pursuant to sections 10 and 11 of the Fisheries Act.  Entry upon those is at least sufficiently arguably, in our submission, an entry which is in accordance with a law of the Northern Territory.  That is the first point we would seek to make about it.

The second thing is that if one goes to section 73 of the Act, your Honours will see that it speaks in section 73(1) of:

The power of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 in relation to the making of laws extends to the making of –

laws which satisfy a number of tests.  One of them is provided for by paragraph (b), that is:

laws regulating or authorizing the entry of persons on Aboriginal land.

May I pause immediately, your Honours, to say this, that the concluding words of the whole subsection say:

but any such law has effect to the extent only that it is capable of operating concurrently with –

amongst other things, this Act.  But having said that, there is expressed to be a power to make “laws regulating or authorizing the entry of persons on Aboriginal land”.  What your Honours will see is that, we would submit, assuming that the tidal areas in question fall within the definition of “Aboriginal land”, as perhaps prima facie they do, as we submit at page 245 and the top of page 246, there is no reason why a law such as the Fisheries Act could not satisfy that description. 

The reason adopted by the Full Court, and your Honours will see this at paragraph 103 of its reasons, was to say that that provision did not grant a power to pass laws relating to fishing on Aboriginal lands or otherwise taking things from them.  But, your Honours, in our submission, it is sufficiently arguable – and I am speaking of course in the context of the present application – that a law which regulates or authorises entry of persons onto Aboriginal land is not doing so for reasons purely of scholarship; it is allowing them to be on or it is regulating their entry or authorising entry for particular purposes.  In our submission, such a law is one which is capable of being made consistently with the terms of the Land Rights Act.

Your Honours, could I then go on to say we mention in our written submissions in paragraph 24 the possible application of section 73(1)(d):

laws regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land –

That raises a question of construction of the term “waters of the sea” under that provision.  Is it one which simply is referring to “waters of the sea” outside the Aboriginal land or when it uses the expression “waters of the sea”, does it include the waters which are above Aboriginal land?  “Waters of the sea” in other Commonwealth legislation to which we referred commonly enough refers to waters that are tidal. 

Your Honours, those are the principal matters dealing with the construction of the Act but could we say this, that unless one takes a very ample view of the nature of a fee simple, there is no reason why, in our submission, the Fisheries Act could not operate consistently with the Land Rights Act.  But, your Honours, it is clear, in our submission, that the Full Court did take a surprisingly ample view.  Could I refer your Honours to one matter and that is paragraph 90 of the Full Court’s reasons at page 181.

Your Honours will see in paragraph 90 that the Full Court held that the Land Rights Act, although it does not anywhere purport to say so expressly, it is held that the grant in fee simple to the low‑water mark under the Land Rights Act:

conferred a right to exclude –

that is a right on the whole of the fee simple –

from the inter‑tidal zone . . . those seeking to exercise a public right to fish or to navigate. 

That is, with respect, a very large conclusion to have arrived at.  It is one which seems inconsistent with the notion expressed unanimously in this Court in Harper v Minister for Sea Fisheries (1989) 168 CLR 314. That is behind tab 20 under the materials and Justice Brennan’s reasons for judgment were agreed in by the other members of the Court.

GUMMOW J:   What was the issue in Harper?  It was one of these abalone cases, was it?

MR JACKSON:   Yes, I think when the case first started it was thought that abalone were immobile and then they had moved a little by the time the case came on.  Your Honours, the issue in that case that gave rise to it was a slightly different one.  Your Honours will see it in a sense referred to, I think, in the headnote where one is talking about whether it was a tax and a duty of excise but in the course of it the question was whether the law that limited the ability to harvest the abalone was one which was capable of being regarded, in effect, as imposing a tax.  So the circumstances, I accept, are different but your Honours will see the observation at page 329, the last paragraph on the page:

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 goes through to the end of that paragraph on page 330 and that proposition is one that has been adopted in a number of decisions in this and other jurisdictions.

Could we say finally in a sense that some reliance was placed by the Full Court and is placed by the respondents upon a passage in some observations of members of the Court in Risk v Northern Territory (2002) 210 CLR 392, that is behind tab 26 in the materials. The most relevant passage, your Honours, is at page 404 and one goes on then to page 405. May I, in particular, refer your Honours briefly to paragraph 32 at page 405. Your Honours will see the observation made about two-thirds of the way down the page:

Nonetheless, it may be observed that there is nothing in the Land Rights Act which appears to limit the rights of the holder of an estate in fee simple in land granted under the Act to rights over only the solid substance of the earth’s crust, as distinct from those parts of the superjacent fluid (be it liquid or gas) -

Your Honours, the observation, in our submission, is first of all hardly definitive for the present purpose and, with respect, secondly, it does not suggest that those rights either are exclusive or may not be regulated by statute.  Your Honours, our submission is that the matter is important, the views taken by the Full Court are ones on which there is a perfectly arguable view the other way and it is an appropriate case, we would submit, for grant of special leave.

GUMMOW J:   Thank you, Mr Jackson.  Mr Solicitor, do you want to add anything?

MR BENNETT:   Your Honours, this case, we would submit, is important at three levels of generality.  The first level, of course, is the large area involved and the importance to the Aboriginal parties and the fishing parties and navigators and the Northern Territory itself in relation to the actual decision and, as you can tell, it involves a very substantial area.

The second is the question of interpretation of the Aboriginal Land Rights (NT) Act and the meaning of the grant of a fee simple to low‑water mark in that Act and that involves also the section 70 questions.  The section 70 questions outlined by my learned friend should have added to it the question of whether a law of the Northern Territory includes the common law for that purpose, and that is a whole separate argument.

Finally, there is a third and wider still level of generality at which the case is important.  Our primary submission is that when the statute used the words “fee simple”, it is using them in the common law sense and that the cases establish, although it was suggested in Risk that the Court was told it was an open question, we say the cases establish fairly ‑ ‑ ‑

GUMMOW J:    I did not say that in Risk.  I steered clear of it.

MR BENNETT:   We were told in argument the Court said it.

GUMMOW J:   I know, but I did not say that, the Court did not say that.  Some members of the Court said that.

MR BENNETT:   Yes.  We would submit it is quite clear when one goes to the common law of Canadian, American and Australian cases, that a fee simple over waters is subject to the common law rights of fishing and navigation in much the same way as a fee simple over ordinary land can be subject to public rights of way and roads and there is a case called Vickery v The Municipality of Strathfield that discusses that.

GUMMOW J:   That is in the context of the Torrens system.

MR BENNETT:   Yes, that is, your Honour.

KIRBY J:   I was interested in Ms Webb’s reference to the two American cases in the Supreme Court, the Illinois Central Railroad Case and the case of Shively.  What was the situation in which they arose? 

MR BENNETT:   It was a fairly different context, your Honour.  The Illinois Case involved the validity of a state‑granted title over part of Lake Michigan to the Illinois Railroad Company which was a right said to override rights of navigation and the state was held not to have power to do that.  That involved very different questions but the relevance ‑ ‑ ‑

KIRBY J:   It is a very different context from the present, really.

MR BENNETT:   Totally different, but the relevance of the case is the importance the court placed on these common law rights.

KIRBY J:   The Supreme Court expressed itself in very general terms.  It was stating a matter of, as it were, foundational common law principle.

MR BENNETT:   Yes, whereas the Full Court seems to have denigrated the significance of…..

KIRBY J:   It has perhaps taken the view that in this particular context of Aboriginal title rights and the structure of the legislation that a different rule emerged.

MR BENNETT:   Our submission will be, your Honour, that by using the words “fee simple” the legislature adopted a particular common law structure and that the cases very clearly establish that that common law structure is one in which a fee simple is subject to these rights.  That will be the main argument we wish to put to the Court.  All I am saying at the moment is that that is an important question and it involves some basic questions of real property rights on both sides of the argument, on the side as to what a fee simple is and on the side as to what these common law rights are.

GUMMOW J:   When we are talking about a “fee simple” here, what are we talking about?  It is granted under the Northern Territory Torrens system, is it not?

MR BENNETT:   Effectively and ultimately, probably yes, your Honour.

GUMMOW J:   One needs to be clear about this.  It is not a common law case, really, it is just another Northern Territory statute providing for a system of title by registration.

KIRBY J:   But you say you pick up from the use of the words “fee simple” in the statute all the baggage of the common law.

MR BENNETT:   Yes, your Honour, and the Torrens system does the same thing.

GUMMOW J:   But that is not right.

MR BENNETT:   The Torrens system does the same thing to a large extent, your Honour.  Of course, there are peculiar features of the Torrens system but it involves the concept of a fee simple as what is recognised and protected by it.

GUMMOW J:   Anyhow, I just alert you to the point, that is all.  Barristers love gliding to the common law, even in Real Property Act cases, and one gets a bit tired of it. 

MR BENNETT:   That is why I mentioned Vickery v Municipality of Strathfield.

GUMMOW J:   Yes, exactly.  That is why I said it is a Torrens case.

MR BENNETT:   Yes, as is this. 

KIRBY J:   We know that barristers love the judges.  They do not much like the statutes, but this is a statutory case, as Justice Gummow has pointed out. 

GUMMOW J:   I think we have your point, Mr Solicitor.

MR BENNETT:   The point is there are three levels of generality and the third one is also a very important one.  If the Court pleases.

GUMMOW J:   Thank you.  Yes, Mr Walker.

MR WALKER:   Your Honours, this was and would be only a case about statutory interpretation.  That is not to deny the evident importance in the Territory suggested ‑ ‑ ‑

GUMMOW J:   We were not degrading the importance of statute law in this country.

KIRBY J:   It is just that we keep trying to teach people to start with a statute and they just will not listen.  We will go to our graves saying it.

MR WALKER:   Yes, your Honours, the Full Court did just that.  Could I remind your Honours, you have been taken I think to most of these passages already by my friend Mr Jackson exactly how the reasoning went – this is to make good my proposition that were leave to be granted there is, by reason amongst other things of the unchallenged decision and reasoning of this Court in Risk, insufficient prospects ‑ ‑ ‑

KIRBY J:   But it was not on this particular point.  You said in your opening words that this is important for the Territory.  We have the government of the Territory, we have the Commonwealth intervening to support, we have three points of general legal principle, even if slightly different from what the Solicitor said.

MR WALKER:   Can I deal with those three later.  Your Honours, it cannot be enough that there is governmental concern about the outcome of statutory interpretation concerning important land rights – that cannot be enough for a grant of special leave.  The Full Court of the Federal Court ‑ ‑ ‑

KIRBY J:   As far as I am concerned, it is a factor.  If the government of the State or Territory comes and says, “This is an important thing for us”, one infers it is important for the people of that State or Territory.

MR WALKER:   And I have started off by a concession that of course the issue was important.

KIRBY J:   But as you say, we had the case about the Darwin land grant and we refused special leave in that case on the basis that essentially these cases should stop at the Federal Court.

MR WALKER:   Yes, and, in our submission, when one looks at the reasoning for the outcome produced by the Full Court in this case, this special leave Bench would be satisfied that there is insufficient prospect of success.  May I try to develop those propositions by taking your Honours first in the application book to page 180.  My learned friend Mr Jackson referred, towards the end of his address, to the significance of this Court’s decision in Risk.  As Justice Kirby has pointed out, it could quite possibly be said that Risk covers everything in the present decision.  However, it provided a footing for an essential and, in our submission, unanswerably correct part of the reasoning which puts paid in particular to any prospect of success worthy to attract special leave in relation to the section 70 and section 73 points to which I am about to come.

In paragraph 87, at about line 2 or so on page 180, there is the short reference to what the decision in Risk held in relation to where the boundary of land referred to in the present statute ran down to the low‑water mark.  There is no suggestion there would be any attempt to alter that outcome.  It is expressed in all the reasons in Risk, perhaps implicitly in Justice Callinan, but nonetheless informing the approach.

In paragraph 88, the point that both my learned friends have raised – which might be called the interplay between those whom the barristers love and that which is supreme, namely, the statute law – is directly addressed because it was argued below.  Their Honours point out that this is not just a matter of asking what they call a grant of fee simple, what it would do of itself – one sees that in the third line of paragraph 88 - as they pointed out in the last sentence commencing at the foot of page 180, at the top of page 181, this was in the context of the Land Rights Act.  The fee simple in question is granted pursuant to statute, it is a creature of statute. 

KIRBY J:   But statute has used a technical phrase.

MR WALKER:   It has used a technical word which of course raised questions concerning what that word means in the statute using it in relation to the public right to fish.  The public right to fish is not an inalienable or unalterable right, as this Court observed in Harper 168 CLR 330 just near the passage that my learned friend Mr Jackson took you to:

the right of fishing in the sea and in tidal navigable rivers, being a public not a proprietary right, is freely amenable to abrogation or regulation by a competent legislature.

Of course, that is the whole point for which the Territory comes to this Court.  They say they are the competent legislature and they should be able to regulate that right to fish.

The question that the Full Court addressed and decided, in our submission, in orthodox fashion and persuasively was whether or not, in the statute which contained sections 70 and 73, there was any room left for the right of an individual to assert a so-called common law right to enter this land, being the intertidal zone, to fish or, finally, whether there was a competence legislatively for the Northern Territory to permit it.  As to the former, in our submission, it is plain to demonstration that the terms of section 70 which make it unlawful to enter are intractable and prevent any such common law right being asserted contrary to its terms. 

KIRBY J:   Except that, I have to tell you, I have been significantly affected by those few passages from the Supreme Court of the United States about basic common law principle which would have been expressed in the context of fee simple at common law.

MR WALKER:   But section 70(1), your Honours, is enacted in a statute that uses the technical language redolent of, but not importing immune, the doctrines of common law in relation to land ownership.  They use the expression as stating fee simple but it is used in the context of this statue and the Aboriginal land referred to in section 70(1) is land about which there is an absolute prohibition subject only to the matters that my learned friend Mr Jackson has referred to, to which I am going to come.

GUMMOW J:   This land was granted in 1980, was it not?

MR WALKER:   I think originally 1978 and then 1980, yes, your Honour.

GUMMOW J:   The grant was by the Commonwealth?

MR WALKER:   Yes, it is a Commonwealth statute ‑ ‑ ‑

GUMMOW J:   I realise that.

MR WALKER:    ‑ ‑ ‑which is critical of course to the section 73 point to which I shall come.

GUMMOW J:   Yes, that is what I am trying to get to the bottom of.  What is the section in the Commonwealth Act providing for the Commonwealth to grant this?

MR WALKER:   Sections 10 and 12, your Honours.

GUMMOW J:   They provide for recommendations, I know, and then ‑ ‑ ‑

MR WALKER:   So there is a scheme of recommendation and then, over in 12, upon recommendation “the Governor‑General may”, et cetera.

GUMMOW J:   Then what happens to it?  What is this deed of grant?

MR WALKER:   The deed of grant, which your Honours will notice may contain reservations ‑ ‑ ‑

GUMMOW J:   I know, but does the deed of grant operate outside the ordinary system of real property in the Territory?

MR WALKER:   No, your Honour.

GUMMOW J:   Does is it get registered under the Torrens register up there?

MR WALKER:   Section 12(4) stipulates when it takes effect, delivery of deed, primarily ‑ ‑ ‑

GUMMOW J:   Yes, “according to its tenor”.

MR WALKER:   Yes.  Section 12(5) provides for registration.

GUMMOW J:   Does a certificate of title then issue under the Northern Territory statute?

MR WALKER:   There is one in the appeal papers, yes, your Honour.

GUMMOW J:   Let us just have a look at it, it is something rather mysterious, mysterious alchemy taking place here. 

MR WALKER:   The actual grant is at 321, 322, your Honour, in 1978.

GUMMOW J:   That is by Sir Zelman Cowen.

KIRBY J:   It is headed “GRANT IN FEE SIMPLE” under the signature of the Governor‑General.

MR WALKER:   Yes, and then 312 to 314, your Honours - it actually continues to 316.  On 316 I am told the rubber stamp “TITLE CANCELLED” does not refer to substantive ownership, it refers to a replacement of the folio in the register. 

KIRBY J:   We really have to be careful that we do not work a Batman on this.  You grant under the great seal of Australia and it turns out ‑ ‑ ‑

GUMMOW J:   There does not seem to be any certificate of title, does there?

MR WALKER:   Yes, it is simply a registered deed.

GUMMOW J:   It is a registered deed, I see.  All right, well, some thought has to be given to this at some stage if we grant special leave because it has proceeded on a basis I do not clearly understand at the moment.  325 Justice Heydon ‑ ‑ ‑

MR WALKER:   Your Honours, 325 is the original 1978 ‑ ‑ ‑

GUMMOW J:   Yes:

the boundaries in this title are not guaranteed under the Real Property Act ‑ ‑ ‑

MR WALKER:   Not guaranteed, yes.  I do not know and I cannot assist the Court as to whether that is an endorsement that appears on any other form of title, otherwise or under this Act registered in the Northern Territory.

KIRBY J:   Some pains seem to have been taken under the statute and under the administrative decisions pursuant to the statute to assimilate the grant to a common law fee simple and that is where I hook in to the two statements of the Supreme Court of the United States which, if they are applicable in Australia, as one would think they would be, they say that the right of free navigation and free use is an important public right and a private right is always subject to the public right and that civilised nations have always done this. 

MR WALKER:   The first thing to be said, of course, is that the report that produced this legislation, as this Court noted in Risk, was the subject itself of an attempt to strike a balance between what are called competing interests; second, that it is not entirely appropriate to regard the Aboriginal interests, so‑called, as merely private.

KIRBY J:   I accept this all together, Mr Walker, but you cannot really question, can you, that this is an important issue?

MR WALKER:   I started by conceding it, your Honours.  It is clearly important. 

KIRBY J:   Your suggestion then is that it is so clear that it is a waste of this Court’s time for it to become involved in it and it should just leave it where it stands in the ‑ ‑ ‑

MR WALKER:   Your Honours, I would not adopt that language, nor that notion but certainly it is not necessary, in the interests of the clarity of the law, for this Court to examine this issue because the method by which it was determined by the Full Court was appropriate, produced the right result.  I would never suggest it would be a waste of time, no, that is not we are saying.

Your Honours, could I simply conclude what I wanted to say about the orthodox approach and correct outcome in the Full Court as follows.  In the balance of competing interests, section 70 was in the statute, is in the statute.  It speaks in unmistakable terms about the lawfulness of someone purporting by right to enter upon Aboriginal land.  The decision of this Court in Risk made it clear that Aboriginal land may include the intertidal zone – that is finding not challenged.  From that, and we know from paragraph 88 of the Full Court’s reasons, that they did not proceed to look at this question by any illegitimate or inappropriate concentration on a common law term out of context.  It was a term from the common law used in a statutory context which included section 70. 

In paragraph 90, which I will not read, it is clear that their Honours then turned to a central question in the case, “What is the effect on what might otherwise have been, by analogy with common law, the incident of the fee simple, namely amenability for the public right of fishing, et cetera?”  What was the result of sections 70, 73 and 74 of the statute, and, in our submission, there has been nothing said to your Honours or written in the submissions to your Honours which suggests that there was any error of approach in relation to the statutory interpretation which their Honours then essayed. 

Paragraph 92 at the foot of page 181, which I will not read, commences explanation of the reasons and then at page 183, about line 9 in paragraph 94, as your Honours have been directed to by my learned friend, Mr Jackson, “section 70 is of decisive significance” is correctly noted and it can hardly be doubted that the meaning of section 70, with its apparently absolute prohibition subject only to named exceptions, is critical.

When one then comes to page 186 in paragraph 103, the all important notion of examining a posited law of the Territory as a source of authority to fish in the intertidal zone being Aboriginal lands was examined and decided by their Honours according to the test laid down by the statute, the possibility of concurrent operation.  The concurrent operation posited is between section 70, thou shalt not enter, in light of section 73 which bestows and limits the competence of the Northern Territory legislature.  May I take your Honours to section 73 to make good the proposition that there has been no error shown to the satisfaction of this, as a special leave Bench, as having sufficient prospect of being made out on an appeal.

My learned friend, Mr Jackson, with respect, appropriately directed your attention both to paragraphs 73(1)b and (d).  As the Full Court observed, (d) is the specific head of legislative competence in relation to the controlling of fishing or other activities and as this Court held in Risk, by its terms it bespeaks its application to land which is not Aboriginal land, in the context of this case, to land which is below, seaward of, the low water mark.

There is no suggestion that that critical part of the ratio in all the judgments in this Court in Risk would be challenged in the proposed appeal in this case.  Your Honours will see the critical phrasing of paragraph 73(1)(d) bestows competence to make such laws:

controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land –

phrasing which every judgment in Risk, observed by definition placed this zone of legislative competence below the low water mark.

KIRBY J:   Justice McHugh, Justice Gummow and Justice Callinan wrote separately at Risk.

MR WALKER:   They did.

KIRBY J:   Is there any point in the separate reasons that is different from the joint?

MR WALKER:   No, there is no point of difference between any of the judgments in relation to the way in which 73(1)(d) bestows legislative competence to make laws in relation to fishing below low water zone.  The legal geometer, as referred to in the plurality reasons, produced in all judgments the same outcome in relation to the line that had to be drawn, as between night and day in that case, between land and sea and that line was low water mark.  Low water mark became the furthest seaward extent of what could become Aboriginal land in relation to which the statute could then contemplate a fee simple grant – that was the issue – and it was determined by the Court in a way which is not sought to be doubted to any extent at all in the arguments that have been proposed to this Court to consider on a full appeal.

Your Honours, quite apart from the four paragraphs in section 73(1) describing and giving legislative competence, your Honours will see the words which follow in section 73(1) which adds an overriding limitation of the efficacy of any such Territory legislation.  It has:

effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth –

which obviously include and expressly the…..in States, this Act, that is section 70.  So a Territory law that said people may enter Aboriginal lands clearly raises the question:  is that capable of operating concurrently with the Commonwealth law that says, in section 70(1), people may not, on pain of criminal penalty do that.  In our submission, the answer to that was as plain as the Full Court found it, “No”, hence the disappearance of the first of my learned friend, Mr Jackson’s, planks in constructing a case fit to be considered on appeal.  Section 74 of the Act is to like effect, in general terms, concerning the possible application of a Territory law to Aboriginal land.  Again, the test is being “capable of operating concurrently”.

Your Honours, section 70, when one bears in mind section 73(1)(d) and the buffer zone notion recommended in the scholarly and political considerations that produced this statute, is a classic legislative bargain struck between competing interests, a policy decision made, and put into statutory texts to be interpreted.  In our submission, it is clear from the combination of 70 and the idea of a buffer zone in 73(1)(d), that it was considered of great importance that the statute law of the Commonwealth, addressing the supposed mischief of doubts about the enjoyment by Aboriginals of their traditional lands, would have a crime of entering land except in specified circumstances.

That is so obviously at the heart of the special characteristic of the Aboriginal lands about which this statutory fee simple is concerned that, in our submission, the Full Court’s reasons ought to be regarded as ‑ ‑ ‑

GUMMOW J:   What do you say about section 70(2A)?

MR WALKER:   The first possibility, of course, is not one that matters in this case, performing functions under this Act.  Otherwise, in accordance with this Act, it does not follow and a law of the Northern Territory refers to statute law – it has nothing to do with common law as the Commonwealth Solicitor-General suggested, it is a defined term, as follows.  It means:

a law made under, or having effect in the Northern Territory by virtue of, the Northern Territory (Self-Government) Act1978 –

That is found in section 3.

GUMMOW J:   What about Northern Territory fisheries legislation, though, fishing licensing systems?

MR WALKER:   The Northern Territory’s fishing legislation is made, obviously, so as to raise questions concerning its concurrent operation, see section 74, with Commonwealth law including this Act.  Section 70, obviously, operates in a way that does not permit concurrent rights of entry onto Aboriginal land so that law of the Northern Territory raises two questions, both of which were appropriately answered in the Full Court.  The first is legislative competence.  There is no question about the legislative competence of the Northern Territory in general terms to enact fisheries legislation.  The second is application to Aboriginal land.  Section 74 directly addresses that and the Fisheries Act was not capable of operating concurrently with this statute, section 70.

GUMMOW J:   Section 70(2A) was not in the Act in its original form.  It has been put in later, has it not?

MR WALKER:   Yes.

GUMMOW J:   How much later, quite recently, is it not?

MR WALKER:   I am told, your Honours that section 70(2A) and (2B) appear thus by way of a drafting amendment in light of the Commonwealth criminal law reforms, the substance of the defence was always there, it has been drafted differently, printed differently probably.

GUMMOW J:   Two matters, Mr Walker.  Just go back to page 318 of the application book – if we grant leave this can all be explained to us, it should not be controversial – at the top left-hand corner of 318 there is a reference to the “REGISTER BOOK”.  That seems to be the equivalent of the Registration of Deeds Act (NSW). Is that the idea there, as you understand it at the moment?

MR WALKER:   Yes.

GUMMOW J:   And then, if you go to 319 at the bottom, it says:

Cancelled now contained in Certificate of Title -

Is that certificate of title as understood in the Torrens legislation in the Northern Territory?

MR WALKER:   Yes, as we understand it, your Honour, and that would appear to follow from the provisions to which you were taken earlier concerning registration. 

GUMMOW J:   Anyhow, that has to be made clear to us at some stage…..  Is there any costs order yet in the Full Court, what happened there?  They seemed to have reserved costs and then while that was happening there was a rush to file a special leave application.

MR WALKER:   Yes, it has not been determined.  In relation to that matter, it would be better that ‑ ‑ ‑

GUMMOW J:   The question is whether you make an application and what it is.

MR WALKER:   We do make an application that any grant of special leave be conditioned on the costs in this Court ‑ ‑ ‑

KIRBY J:   I wondered whether what was put in the applicant’s application indicated that the view was taken that these were governmental parties and that, therefore, they will all bear their costs of prosecuting their different points of view in the Full Court or in this Court ‑ ‑ ‑

MR WALKER:   That is a halfway house, that is that, in no event would we be ordered to pay their costs.

KIRBY J:   Normally, if you bring up a party with limited resources, like the present first respondent, the Court would say that if government wants to have this matter sorted out it would normally have to pay the costs, I would have thought.

MR WALKER:   In our submission, that full house, that full extent is what the Court ought to impose by way of a condition.  May it please the Court.

GUMMOW J:   Yes, Mr Jackson, anything on that question of costs, that is all we need to hear about.

MR JACKSON:   Your Honour, on the question of costs, if it be a condition of special leave and we have to pay the costs of the appeal then we will do so.  However, your Honours, may we suggest in that regard, this is a matter that is one in which there has no doubt been discussions at various stages that the Court leave open the possibility of a recision of that order if it be deemed appropriate.  That is the first thing. 

Your Honours, dealing with the substance of the matter, there are three points I wish to make.  The first concerns the statute and the relationship of the separate sections.  One starts with section 70(1).  It simply states the proposition:

A person shall not enter or remain on Aboriginal land –

that being defined as the land the subject of a grant.  One goes then and cannot read section 70(1) without reading with it section 70(2A).  Section 70(2A) says relevantly that it is a defence to a prosecution under 71:

if the person enters or remains on land . . . in accordance with this Act or a law of the Northern Territory.

You see then one goes to section 73 and section 73(1)(b) says that the Parliament of the Territory may make laws doing the same thing, “regulating or authorizing the entry of persons on Aboriginal land”.  Now, assuming “Aboriginal land” ‑ ‑ ‑

KIRBY J:   It is highly particular you see, when you actually look at it.  First of all, do you dispute that the Full Court took the correct approach?  They started with the statute, they dealt with it as a statutory question and you accept that so there is no error in the approach, therefore, it is an error in application that is being urged on us.  When you actually look at the statute, it is very particular and specific and it is said to be a statutory compromise.

MR JACKSON:   Your Honour, may I say, I do not really want to fall if I may do so into agreeing that it is simply an application of settled principle.  What we are saying, your Honours, is that (a) it is an important case.  The determination of the issue turns ultimately on statutory considerations, but the statutory considerations are ones of the greatest importance and they are ones that the Full Court got, we submit, quite wrong and that is the point I am seeking to make in a very short way now and that is to say, if you follow the sections through 71, 70(2A), 73(1)(b), assuming Aboriginal land includes the water, this says you can do it.  If it does not include the water you go then to 73(1)(d).  It is one or the other, your Honours.  We would submit that it is a case where it really is a simple notion aided perhaps by the common law issues, but fundamentally one where the Full Court got it, with respect, quite wrong.

The second thing we would seek to say is this.  Your Honour Justice Gummow asked about the relationship with the real property provisions.  The position under section 12(5) is that there is a form of registration, a notification in effect of the ownership.  A provision which has not been included in the part of the Act that your Honours have is section 20A which explains why one sees those notations on the bottom of the deed of grant and that is that when parts of the land are excised or dealt with then it be dealt with under the Real Property Act form of statute.

One sees also, your Honours, of course that there can only be limited circumstances in which there may be a disposition of land by the Land Trust and that is provided for by section 19 and it is only in circumstances other than those specifically referred to with various approvals that there may be such dispositions.

GUMMOW J:   But does section 20A produce in this case the result that there is a certificate of title?

MR JACKSON:   It should your Honour, yes, but an appropriate form of certificate of title depending on the nature of the disposition.  Yes, that is so. 

That would not be the Trust itself because of its inability to dispose of the land, I suppose, to itself in a way.

GUMMOW J:   It would be an odd certificate of title.

MR JACKSON:   It is a statutory - anything can be done, I suppose.  The third point, your Honours, if I may say this, our learned friend said that this might be of a bit of importance to you but it is not very important to anyone overall.  Could we just refer your Honours back to the application book and its inclusion of our submission, page 247, and in particular what is said in paragraph 27 and also paragraph 28.  The result of the decision of the Full Court is that in respect of the very large areas of title land, the Fisheries Act cannot apply and nothing, for example, could be done to this land even though it be land in a form of private ownership which prevented there being the fishing stocks degraded in an acceptable way.

GUMMOW J:   But it is the Fisheries Act (NT) we are talking about.  We are not talking about the common law of the Northern Territory.

MR JACKSON:   No, I am not talking about the common law, I am talking about the Fisheries Act and, of course, the position is, if I may have one complete sentence, as it were, your Honours, the position simply is that whatever be the common law rights they have been affected by the provisions of the Fisheries Act.

GUMMOW J:   Thank you.  Mr Solicitor, do you want to add anything?

MR BENNETT:   Yes, may I just make one very short point, your Honour, and that is in relation to my learned friend, Mr Walker’s, statutory submissions.  Section 70(2A) refers to a person who “enters or remains on the land” in accordance with “a law of the Northern Territory”.  Section 3 defines a “law of the Northern Territory” as, inter alia:

a law made under, or having effect in the Northern Territory by virtue of, the –

Self‑Government Act.  Section 57 of the Self‑Government Act provides that:

Subject to this Act . . . all existing laws of the Territory have the same operation –

So we would submit that the common law is picked up by that statutory change.  There is some discussion of this issue in the cases, but that is part of the argument we would wish to put in relation to that aspect of the ‑ ‑ ‑

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 10.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.36 AM:

GUMMOW J:   There will be a grant of special leave in this matter and the appeal will be listed as a one-day appeal but the grant is upon the term that the applicants bear in any event the costs of the first, second and third respondents in this Court.

AT 10.36 AM THE MATTER WAS CONCLUDED