Northern Territory v Arnhem Land Aboriginal Land Trust

The High Court of Australia considered an appeal by the Northern Territory of Australia against a decision of the Full Court of the Federal Court concerning the rights of licensees under the *Fisheries Act* (NT) to fish in tidal waters within Aboriginal land granted under the *Aboriginal Land Rights (Northern Territory) Act 1976* (Cth). The dispute centred on whether fishing in the intertidal zone or tidal waters within the boundaries of the Arnhem Land grants constituted "entering or remaining on Aboriginal land" under section 70(1) of the *Land Rights Act*, and if so, whether a licence issued under the *Fisheries Act* provided a defence under section 70(2A) of the *Land Rights Act*.

The legal issues before the High Court were whether the *Fisheries Act* (NT), by necessary implication, abrogated any pre-existing common law public right to fish in tidal waters, and whether a licence granted under that Act permitted a licensee to enter any place to fish. Crucially, the Court had to determine the meaning of "Aboriginal land" and whether fishing in the intertidal zone or tidal waters within the boundaries of the grants was an act that contravened section 70(1) of the *Land Rights Act*, absent permission from the relevant Land Council. The Court also considered whether entering or remaining on such land "in accordance with a law of the Northern Territory" included holding a licence under the *Fisheries Act*.

The High Court reasoned that section 70(1) of the *Land Rights Act* could be engaged if a person holding a licence under the *Fisheries Act* entered or remained on waters within the boundaries of the grants. It held that the holding of a licence under the *Fisheries Act* did not, without more, constitute entry or remaining "in accordance with a law of the Northern Territory" for the purposes of the defence under section 70(2A). The Court found that common law rights of navigation did not assist in the construction of section 70(1) as the activity in question went beyond navigation. However, the Court determined that the declarations made by the Full Court were framed too broadly.

The High Court allowed the appeal in part, setting aside one of the orders of the Full Court and substituting a declaration that sections 10 and 11 of the *Fisheries Act* (NT) do not confer on the Director of Fisheries a power to grant a licence that would, without more, authorise a holder to enter and take fish from areas within the boundaries of the Arnhem Land grants. The appellants were ordered to pay the respondents' costs of the appeal.