Risk v Northern Territory

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FEDERAL COURT OF AUSTRALIA

Risk v Northern Territory of Australia [2000] FCA 1779

ABORIGINAL AND TORRES STRAIT ISLANDERS – land rights – traditional land claim under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – claim covering seabed under bays and gulfs within the limits of the Northern Territory – whether seabed amenable to claim – whether the term “land” in s 50 of the Land Rights Act extends to the seabed – ordinary and ordinary legal meaning of “land” – whether includes seabed – operation of Acts Interpretation Act.

Aboriginal Land Rights (Northern Territory) Act 1976 s 50, s 73
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Judiciary Act 1903 (Cth) s 39B
Acts Interpretation Act 1901 (Cth) s 22(1)(c)
The Seas and Submerged Lands Act 1973 (Cth) s 7
Northern Territory Aboriginal Sacred Sites Act 1989 (NT)

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 cited
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 referred to
Hampton Urban Council v Southwark & Vauxhall Water Company [1900] AC 3 cited
Goldsworthy Mining Ltd v Commissioner of Taxation (1973) 128 CLR 199 discussed, cited
Goldsworthy Mining Ltd v Commissioner of Taxation (1975) 132 CLR 463 referred to
Dampier Mining Co Ltd v Commissioner of Taxation (1981) 147 CLR 408 discussed
Jennings  Construction Ltd v Burgundy Royale Investments Pty Ltd [No 2] (1987) 162 CLR 153 followed
New South Wales v The Commonwealth (1975) 135 CLR 337 cited
Rogers v Squire (1978) 23 ALR 111 referred to
Yarmirr v Northern Territory(No 2) (1998) 82 FCR 533 referred to
Commonwealth v Yarmirr (1999) 168 ALR 426 referred to
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 cited
R v Toohey; Ex parte Attorney-General for the Northern Territory (1980) 145 CLR 374 cited
R v Kearney; Ex parte Northern Land Council (1984) 158 CLR 365 cited
Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 cited
Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 cited
Attorney-General of British Colombia v Attorney-General of Canada [1914] AC 153 cited
Lansen v Olney (1999) 169 ALR 49 cited
Argyll & Bute DC v Secretary of State for Scotland (1976) SC 248 cited
Re Rivtow Industries v Assessment Commissioner of British Columbia (1986) 24 DLR (4th) 475 cited

WILLIAM MAXWELL RISK V NORTHERN TERRITORY OF AUSTRALIA & THE HON JUSTICE HW OLNEY ACTING AS ABORIGINAL LAND COMMISSIONER
D19 OF 1999

FRENCH, KIEFEL AND MERKEL JJ
 8 DECEMBER 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D19 OF 1999

AN APPLICATION TO REVIEW THE DETERMINATION OF 30 NOVEMBER 1999 OF THE HON JUSTICE H W OLNEY, ABORIGINAL LAND COMMISSIONER

BETWEEN:

WILLIAM MAXWELL RISK
APPLICANT

AND:

THE NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

THE HON JUSTICE HW OLNEY acting as ABORIGINAL LAND COMMISSIONER
SECOND RESPONDENT

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Details
Case
[2000] FCA 1779
Decision Date

CaseChat Overview and Summary

In the case of Risk v Northern Territory, the appellants, William Maxwell Risk and nine other individuals, sought to claim traditional land rights over the seabed of Beagle Gulf, Fog Bay, and Van Diemen Gulf in the Northern Territory. The Aboriginal Land Commissioner rejected their application, concluding that the seabed was not considered "land" under the Aboriginal Land Rights (Northern Territory) Act 1976, thus not subject to traditional land claims. The central issue before the court was whether the Aboriginal Land Commissioner was correct in his interpretation that the seabed was not "land" within the meaning of the Act. The court had to determine if the seabed, particularly the bed of bays and gulfs, could be the subject of a traditional land claim under the Act.

The court examined the definition of "land" in the context of the Aboriginal Land Rights (Northern Territory) Act 1976, focusing on the legislative intent and historical context of the Act. The court also considered the broader implications of the Commissioner's decision on the rights of Indigenous peoples to claim traditional lands, including submerged areas. The court found that the term "land" in the Act was not intended to include the seabed, which falls under different legal frameworks governing maritime zones. Consequently, the court upheld the Commissioner's decision that the seabed of Beagle Gulf and other specified areas was not "land" subject to traditional land claims under the Act.

The appeal was dismissed, and the applicants were ordered to pay the respondents' costs of the application. The court's decision reinforced the distinction between traditional land rights and maritime rights, ensuring that the Aboriginal Land Rights (Northern Territory) Act 1976 was applied within its intended legislative scope.

Orders

Orders of the court

1. The application be dismissed.

2. The Applicant is to pay the Respondents’ costs of the application.

Background

Background to the litigation

On 19 November 1999, the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 rejected an application raising a traditional land claim extending to the seabed covered by the waters of Beagle Gulf and other waters within the limits of the Northern Territory. He did so on the basis that the seabed is not “land” which can be claimed under the Act. The sole question in this appeal is whether he was correct in so concluding.Factual Background By an application dated 27 May 1997 lodged with the Aboriginal Land Commissioner under s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976, William Maxwell Risk and nine other persons asserted a traditional land claim in an area covered by the waters of the Beagle Gulf. Beagle Gulf lies between the coast adjacent to the city of Darwin and Bathurst and Melville Islands in the Northern Territory. Following various amendments to the claim made in July 1998 and August 1999 it covered Beagle Gulf, a portion of Fog Bay and a portion of Van Diemen Gulf. The limits of the area were defined by closing lines for the bay and the gulfs which were described with particularity. They were described by reference, inter alia, to the high water mark of the mainland and territorial sea base lines proclaimed under s 7 of The Seas and Submerged Lands Act 1973 (Cth). Certain islands, sandbars, islets, reefs, rocky areas and other formations within the gulfs and bay were also specified. On 3 July 1998 the Aboriginal Lands Commissioner, at the request of the Attorney‑General for the Northern Territory of Australia, issued a Notice of Intention to commence an inquiry to determine a preliminary issue. The issue, broadly expressed, was whether the claimed area or any part thereof is land which may properly be the subject of an application pursuant to s 50(1)(a). The questions raised before the Commissioner at the preliminary inquiry, by the Attorney‑General, related to the certainty and consistency of the description of the claimed area, whether the “sandbars, islets, reefs, rocky areas and formations” referred to in the claim were properly to be regarded as land and the identification of the bays and gulfs covered and the definition of the relevant closing lines. The major question however, was whether the bed of any bays or gulfs of the mainland and of adjacent islands fell within the description “land in the Northern Territory” for the purposes of the Land Rights Act. It was on that major question that the Commissioner made a determination on 30 November 1999 in the following terms:“The Aboriginal Land Commissioner determines that so much of the area claimed in the Beagle Gulf Area Land Claim, (Application No 191) as is adjacent to, and seaward, of, the low water mark of the seacoast of the Northern Territory or of any island adjacent thereto including the bed of any bays or gulfs of the mainland or of any such islands is not land which may properly be the subject of an application pursuant to s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976.”On 24 December 1999 an application was filed in this Court for an Order of Review of the determination under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and for orders under s 39B of the Judiciary Act 1903 (Cth). The Aboriginal Land Commissioner being a judge of this Court, the application must be dealt with by a Full Court albeit in the exercise of original jurisdiction.The Decision of the Land Commissioner

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH, KIEFEL AND MERKEL JJ
It was on that major question that the Commissioner made a determination on 30 November 1999 in the following terms:“The Aboriginal Land Commissioner determines that so much of the area claimed in the Beagle Gulf Area Land Claim, (Application No 191) as is adjacent to, and seaward, of, the low water mark of the seacoast of the Northern Territory or of any island adjacent thereto including the bed of any bays or gulfs of the mainland or of any such islands is not land which may properly be the subject of an application pursuant to s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976.”On 24 December 1999 an application was filed in this Court for an Order of Review of the determination under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and for orders under s 39B of the Judiciary Act 1903 (Cth). The Aboriginal Land Commissioner being a judge of this Court, the application must be dealt with by a Full Court albeit in the exercise of original jurisdiction.The Decision of the Land Commissioner By the time the preliminary inquiry commenced, the amended description of the claim area was as follows:“All that land in the Northern Territory of Australia which is adjacent to, and seawards of the low water mark of the seacoast of the mainland from, in the west, the northern-most point of the western boundary of Delissaville/Wagait/Larrakia Aboriginal Land (marked on the map by the letter ‘X’), and from, in the east, the point where the western bank of the Adelaide River meets the aforesaid low water mark (marked on the map by the letter ‘Y’);including, without limitation:(A) any islands, or part of any island, to low water mark, in the region described above, including any rights, members or appurtenances of such an island, or part thereof;(B) the bed of any bays or gulfs of the mainland or of an aforesaid island (or part thereof), or part of any such bay or gulf, in the region described above; and(C) all those sandbars, islands, islets, reefs, rocky areas and other formations enumerated on the map attached to this application;but excluding:(D) land which is Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976.(DA) land, which at the time of lodgement of Beagle Gulf Area land claim, was the subject of claim pursuant to any of the following land claims under the Aboriginal Land Rights (Northern Territory) Act 1976:* Kenbi Mainland land claim (no 37):* Kenbi Islands land claim (no 127):* Port Patterson land claim (no 153):* Vernon Islands land claim (no 9).(E) land located within a town within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976;(F) Northern Territory Portions 3578, 3580, 3581 and 3582.”The description also referred to a map and a part of the Port Hurd area which had been withdrawn from the claim. As particularised, the claim excluded:-(i) land which is the seabed of the high seas;(ii) land which is the seabed of the twelve nautical mile territorial sea of Australia;(iii)land which is the seabed of the first three nautical miles of the territorial sea of Australia adjacent to the base lines under the Seas and Submerged Lands Act 1973 (Cth);(iv)land which is the seabed landward of the aforementioned base lines, but not within the Northern Territory.There were other exclusions which are not material for present purposes.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH, KIEFEL AND MERKEL JJ

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