Risk v Northern Territory & Anor

[2002] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D12 of 2001

B e t w e e n -

WILLIAM MAXWELL RISK

Appellant

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

THE HONOURABLE  JUSTICE H. W. OLNEY,
Aboriginal Land Commissioner

Second Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 MARCH 2002, AT 10.17 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   If the Court pleases, I appear with MR S.A. GLACKEN, for the appellant.  (instructed by the Northern Land Council)

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory:   If the Court pleases, I appear with MS R.J. WEBB for the Northern Territory of Australia, the first respondent.  (instructed by the Solicitor for the Northern Territory).

GLEESON CJ:   There is a certificate from the Deputy Registrar that she holds a letter from the Australian Government Solicitor who acts for the second respondent, the Honourable Justice Olney, which advises that the second respondent submits to any order of the Court, save as to costs.

MR H. FRASER, QC:   May it please the Court, I appear with MR N.J. HENWOOD, for the Northern Territory Seafood Council, an applicant for leave to intervene.  (instructed by Cridlands)

GLEESON CJ:   What is the attitude of the parties towards the application?

MR BASTEN:   Your Honour, our attitude is that we have no opposition to the intervention.  Perhaps I should note that there has been some agreement between ourselves and the Seafood Council as to the question of costs.

MR PAULING:   We support the intervention, if your Honour pleases.

GLEESON CJ:   Yes, you have that leave.  Yes, Mr Basten.

MR BASTEN:   If the Court pleases.  Your Honours, may I start by putting this case into a statutory context.  As Your Honours will be conscious, in the Commonwealth v Yarmirr the Court considered a claim under the Native Title Act in relation to the seas and seabed, the seabed being in that case beyond the limits of the Northern Territory.  Under the Native Title Act a determination of native title is the Court’s order as the result of an outcome of the application.  The scheme under the Land Rights Act is somewhat different ‑ ‑ ‑

GUMMOW J:   Do we not have to look at section 210 of the Native Title Act?

MR BASTEN:   Your Honour probably does.  I am afraid I ‑ ‑ ‑

GUMMOW J:   Nothing in that – well, just have a look at it.

MR BASTEN:   I am sorry, yes, indeed.  That defines the interrelationship between the ‑ ‑ ‑

GUMMOW J:   Well, what does it mean?  The Native Title Act is a later federal statute.

MR BASTEN:   Yes.

GUMMOW J:   What is 210 telling us about the continued operation of the 1976 statute?

MR BASTEN:   Really that there is no need to consider whether there might be inconsistency between rights and interests granted under that Act and those which might accrue under the Native Title Act.  The issue arose in the matter of – I think it was the Lake Amadeus claim where there was a question about whether a grant of land under the Land Rights Act might vest interests or create rights in people other than native title holders ‑ ‑ ‑

GUMMOW J:   Perhaps you could give us a reference to that later.

MR BASTEN:   Yes I will, your Honour.  It went up to this Court on a special leave application and leave was refused.  Under the Land Rights Act traditional Aboriginal ownership of land is recognised by the transfer to land trusts established by or under section 4 of the Act, of an estate in fee simple in relation to the relevant lands.  The function of the land trust is to hold the land on a communal basis.  The interest, however, is the interest provided by a fee simple estate and not some sui generis native title or traditional ownership interest.

GUMMOW J:   Well, that is right.  So, is not the position that the fee simple that the trust would get under the Aboriginal Land Rights Act is something that could not be affected by a determination of native title under the Native Title Act? 

MR BASTEN:   Yes.  So that is the ultimate result, your Honour. 

GUMMOW J:   Is that what section 210 is telling us?

MR BASTEN:   It is, primarily, your Honour, yes.  It may have some further consequence, but principally, that would be right, yes.  We accept that, your Honour. 

KIRBY J:   Now, you have proceeded straight into the Act, but according to Mr Fraser’s submissions, there was a history in the passage of the Act in the Federal Parliament, which is relevant to these proceedings.  Are you going to deal with that now, or later? 

MR BASTEN:   I will deal with it only briefly, your Honour, and later, if I may. 

KIRBY J:   As I understand it, the predecessor was presented to Parliament during the Whitlam Government, and fell with the events of 11 September 1975, and contained a clause which would have solved the issue which is now before the Court – which clause was not inserted in the present Act. 

MR BASTEN:   Your Honour, in substance, our ‑ ‑ ‑

GLEESON CJ:   It may have been a Freudian slip, but I think his Honour was intending to refer to a date in November. 

MR BASTEN:   Yes.  The coincidence had occurred to me, but I thought it was probably wrong.  Your Honours, may I deal with the matter in this way.  We, with respect, accept the approach that your Honour referred to in questions of statutory interpretation in Yarmirr, namely, that one really needs to start with the language of the statute, to see what that tells us about its operation and effect.  The reliance upon the extrinsic material is, as your Honour notes, largely in the argument presented by the respondent and the intervener in this case.  We say two things about it, really.  One is that it does not take one very far and at the end of the day we will adopt, I think, in substance, the approach of Justice Merkel, which was to say that many of these arguments simply did not give a clear indication one way or the other.  But in answer to the point as your Honour articulates it, we say that there was never any section which really answered this question at all.  There was ‑ ‑ ‑

KIRBY J:   I agree with you. We should really deal with it after we have analysed the statutory language, but it is said in the submission – and of course I have not looked at the parliamentary debates – that there is an ambiguity in the word “land” and that the issue was specifically dealt with in a predecessor Bill and that it was raised during the passage of the Bill that became this Act and that that is a matter which we can take into account in resolving the ambiguity.  But I think you are right:  I think it is something that comes later rather than at the outset.  Historically it comes at the outset but analytically it comes later.

MR BASTEN:   It comes later.  Your Honour, there is another aspect to it, namely that really in order to understand that argument, one needs to go to the drafting instructions provided by Justice Woodward.  That was the ultimate extrinsic material.  It went through various formulations in the Parliament, none of which your Honours have in full, but we do have extracts before the Court from the Woodward Reports, including his Honour’s drafting instructions, and I will if I may seek to explain why I put the conclusion as I did a moment ago, namely that it ultimately is not going to assist the Court.  If I might leave that exercise till a little later and start with the concepts underlying the Act.

GUMMOW J:   You mentioned a fee simple.  Where do we find that, Mr Basten?

MR BASTEN:   If your Honour goes to section 12, which is in effect the ultimate operative provision, grants of lands are made to a land trust by the Governor‑General.  It arises in a number of places, your Honour.  The language is used throughout, for example, section 5 which I was going to – section 11 perhaps is the easiest place, where the recommendation – I am sorry, I am going a bit out of course.  The Commissioner under the claim process makes a recommendation to the Minister for a grant of land and that recommendation is identified in section 1.

GLEESON CJ:   Mr Basten, I am using reprint 5 which has a yellow cover.  It looks to be the same as the one you are using.

MR BASTEN:   Yes, that is, your Honour.

GLEESON CJ:   Does that contain the legislation in the form relevant to this case?

MR BASTEN:   Largely, your Honour.  We have indicated in the written submissions where there have been variations to relevant provisions.  There have been amendments which have arisen after the claim was made in the present case.

GUMMOW J:   What is the relevant date?

MR BASTEN:   The relevant date was, I think, 5 May 1976.  It is in our chronology.

GUMMOW J:   No, no, for this claim.

MR BASTEN:   For this claim?

GUMMOW J:   Yes.

CALLINAN J:   27 May 1997.

MR BASTEN:   Yes, I am so sorry.  Your Honour is right.  In the chronology in our written submissions we have the ‑ ‑ ‑

GUMMOW J:   It looks like reprint No 4, we would say.

MR BASTEN:   There have been amendments.  I was going to take the Court through the materials in the reprint which your Honour the Chief Justice alludes to.  In paragraph 7 of our written submissions we note in paragraph 7.2 that there have been no relevant amendments since the lodgment of the claim.

CALLINAN J:   Mr Basten, there is a reference to fee simple in subsection 11(1)(b).

MR BASTEN:   That is the one I was about to come to, your Honour, yes.  I think that is the relevant reference for present purposes.  I thank your Honour for that.  Yes, so that when one goes to section 12 where it refers in 12(1) to “the receipt of a recommendation under” one of the previous sections, provides that the “Governor‑General may” and then, in the three cases:

execute a deed of grant of an estate in the land in accordance with the recommendation –

that picks up the reference, for example, in 11(1)(e) to the recommendation:

that a grant of an estate in fee simple in that land be made –

I am sorry, that is a rather long‑winded answer to your Honour’s simple question.  I am going to come to this in a moment, your Honour, but there are two mechanisms by which land is granted under the Act.

GUMMOW J:   Well, are we right in thinking that the grant is always of a fee simple?

MR BASTEN:   Yes.

GUMMOW J:   Under the surface of the water?

MR BASTEN:   Yes.

GLEESON CJ:   Usque ad coelum ‑ ‑ ‑

MR BASTEN:   Well, whatever that might encompass.

GLEESON CJ:   What does it encompass in relation to the seabed?

MR BASTEN:   I am not sure that it means – I am really getting out of the order of my argument.  One of the arguments put against us is that there are uncertainties which would arise if our construction was correct.  One of them is presumably the effect of a grant of an estate under this Act in relation to use of the seas and that is a matter which is not ultimately answered by simply looking at the fee simple estate, one would think, but one would need to look at the various provisions of the Act under which the fee simple is granted and one might need to take account of the common law rights and whether or not a fee simple estate would affect them, so that I hesitate in giving your Honour the Chief Justice a simple answer to that question.  I will come back to it, if I may, in a different way, but ultimately we will say that the answer to that question is an important one which is not presently before the Court.

In other words, there are fee simple estates now in existence dealing with wholly submerged seabed around the coast of Arnhem Land, for example, and that question arises specifically in relation to the operation of those grounds.

HAYNE J:   Is the claim with which we are concerned a claim that is in terms confined, relevantly confined, to the seabed that is permanently inundated?

MR BASTEN:   Relevantly for present purposes, your Honour.

HAYNE J:   In particular, no claim is made under this legislation, is it, to any right over the sea that would lie above the seabed that is permanently inundated?

MR BASTEN:   That is dealt with otherwise.  What your Honour says in relation to the claim is, as we would understand it, correct.

GLEESON CJ:   What about petroleum under the seabed?

MR BASTEN:   Minerals and petroleum are dealt with otherwise under the Act, your Honour, and are accepted from grants and I will come to that if I may.  Your Honour will see in section 3 that there are a number of definitions of extractive minerals and definitions relevant to mineral licences, and so on, and –

CALLINAN J:   Mr Basten, could I ask you this.  What practical utility would there be in possession or ownership of the seabed but not the waters above it or anything underneath it?

MR BASTEN:   I do not think I was suggesting ‑ ‑ ‑

CALLINAN J:   It may not matter but I would like to know if you can answer the question.

MR BASTEN:   I think the short answer, your Honour, is that our law envisages ownership of the land.  One can stratify land and one can, by principles such as that the Chief Justice referred to, incorporate into ownership of land rights of control of access to and use of resources in the air above or the subsoil beneath, or if there is water over the water, and that is not a controversial proposition because rivers, lakes, the foreshore from time to time, and so on, are submerged so that ‑ ‑ ‑

CALLINAN J:   There really is a claim then to the waters above it, or to the space occupied by the waters above it, anyway?

MR BASTEN:   Your Honour, the claim is not in terms to the waters above or, indeed, to any air space above but simply to the surface of the land ‑ the solid surface of the land ‑ which may carry with it access to and use of whatever flies or swims above the land from time to time.

CALLINAN J:   It would probably have no practical value unless it does include those.

MR BASTEN:   That is so.

GAUDRON J:   When you say it carries with it the right to access or are you saying the right to control access?

MR BASTEN:   Your Honour, these questions really require reference to the terms of the Act itself because there are numerous provisions in the Act which one would have to say would colour or qualify the common law rights which might otherwise follow from the simple grant of an estate in fee simple.  The other things I was going to say in answer to your Honour Justice Callinan in relation to practical consequences is that ‑ and I will come to this in more detail if I may, but the purpose of the Act is to provide land traditionally owned by Aboriginal people in accordance with their Aboriginal traditions.

As your Honour may appreciate, those Aboriginal traditions, as reflected in the statutory tests, place great weight on spiritual connections, in particular, with sites of significance on land.  Accordingly, the return of the land to the Aboriginal people may have as much spiritual significance as material significance, in terms of sustenance and occupation and other forms of use. 

GLEESON CJ:   But the key right referred to in the definition of traditional Aboriginal owners in section 3 – and it is an essential right, as I understand the Act – is a right to forage over the land. 

MR BASTEN:   It is a right as opposed to an activity, your Honour.  With respect, we would not think it the “key” right.  It is the second of two elements of the definition of ‑ ‑ ‑

GLEESON CJ:   It is an essential element. 

MR BASTEN:   It is an essential element.  I will come to that, your Honour, if I may.  I understand the relevance of that aspect of the matter to the present case.  Could I backtrack for a moment to the structure of the land‑holding arrangements?  Section 5(1)(b) ‑ ‑ ‑

KIRBY J:   Just before you go on, I have just been handed the fourth reprint.  Having regard to the date of the claim, is that the one we should be working from, or should we be working from the fifth reprint?  Can you find that out at some stage and let the Court know? 

MR BASTEN:   Yes.  Your Honour, our short answer is that I do not think there are any material differences, but it may ‑ ‑ ‑

KIRBY J:   I realise you say that, but we have to be careful that we are using the Act at the right time. 

MR BASTEN:   I appreciate that, your Honour.  I will make that inquiry. 

KIRBY J:   The fourth reprint bears the date:  reprinted at 30 April 1995. 

MR BASTEN:   Yes, well, that is two years before that claim.  Might I say this, that, in the course of what I want to say, a significant aspect of the argument is concerned, of course, with the Act as at the date of its commencement, because the operation of the Act relevantly is to be determined at that time, and then one sees whether there have been subsequent changes – of which there have been some, to which I will need to take the Court.  But these more recent changes do not affect the substance of this argument.  What we might do, if your Honour has that reprint, is simply to note which amendments since that time were made before the date of the application. 

GUMMOW J:   There are two statutes:  63 of 95 or 43 of 96. 

MR BASTEN:   Yes.  I was going to go, if your Honours please, to section 5 of the Act, which provides that the functions of the land trust, which are, firstly, 5(1)(a), “to hold title to land vested in it”, and (b): 

to exercise its powers as owner of land referred to in paragraph (a) for the benefit of the Aboriginals concerned –

and to understand that phrase, one goes back to section 4(1), which provides that: 

The Minister may, by notice published in the Gazette, establish Aboriginal Land Trusts to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned –

and that picks up the term “Aboriginal tradition” which is, again, a defined term in section 3(1), bottom of page 1 of the fifth reprint: 

Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships. 

I think in partial answer to a question I was asked earlier, section 71 picks up that concept and provides in effect that:

an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land ‑ ‑ ‑

GLEESON CJ:   So this legislation does not disturb what I might call the balance of entitlements as between Aboriginals?

MR BASTEN:   It is intended not to, your Honour.  To the extent that disputes arise as to that, the Land Councils are given a function of resolving those disputes.

KIRBY J:   This in essence was the alternative model.  There was Justice Blackburn’s decision which said there was no right, then there was the Royal Commission, then there was this statute, and then intervened Mabo with its more personal rights and then the present land rights legislation, but not in the Northern Territory.

MR BASTEN:   Yes, the Native Title Act.

KIRBY J:   I am sorry, the Native Title Act, yes.

MR BASTEN:   That applies in the Northern Territory but also beyond.  In substance, yes, your Honour, although there is ‑ ‑ ‑

KIRBY J:   This was a more communal idea.  The idea was that it went to the trust for the whole Aboriginal community of the Northern Territory, was it, or of the area?

MR BASTEN:   We would say no, your Honour, but that does require a discussion of the concept of “native title” under the Native Title Act because, in short, the breadth of the definition of “native title” appears to pick up any person who has traditionally rights or interests in an area of land.  So that it may not be disconsonant with section 71 and the concepts which underlie this Act.

KIRBY J:   Except that it creates a statutory trust, as I understand it, whereas under the Native Title Act ‑ ‑ ‑

MR BASTEN:   Yes, the mechanism differs, that is so.

GLEESON CJ:   But the trust is a trust for the benefit of the traditional Aboriginal owners of the particular land, not for all Aboriginal people in the Northern Territory.

MR BASTEN:   Not for all Aboriginal people, but it may go beyond the group of traditional Aboriginal owners because, as your Honour noted, there was a specific definition of them.  Firstly, they have to constitute a local dissent group and, secondly, they are defined by firstly common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land.

GLEESON CJ:   But section 71(1) ‑ ‑ ‑

MR BASTEN:   - - - confers rights beyond that, one would think.

GLEESON CJ:   It confers rights but it also protects rights, does it not, of traditional owners?

MR BASTEN:   It does, it does undoubtedly.  All I am saying is perhaps a qualification on that, namely that it also protects the rights of others who under tradition have what are sometimes called secondary or contingent rights or other rights to use or occupy the land at times and places and so on.  Aboriginal tradition is complex in that way because people who have primary spiritual affiliations may be entitled to keep people off the land in some circumstances but not when a particular ceremony is taking place which involves people from other places.  There are various ways in which those complex traditions are reflected in the definitions, particularly “Aboriginal tradition”.

Your Honours, just following through that line of thought, if one goes to section 5(2) of the Act, it provides that:

A Land Trust:

(a) shall not exercise its functions in relation to land held by it except in accordance with a direction given to it by the Land Council for the area in which land is situated –

and it must act in accordance with such a direction.  Then in section 23(3):

In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land –

and so on.  So that there is a complex scheme, as it were, for the exercise of power in relation to these lands.  The land trust is almost a nominal trustee who can only act under instruction, and instruction requires reference to both traditional Aboriginal owners and others.

Now, any land so held by a land trust is Aboriginal land within the definition contained in section 3(1) of that term, the third of the definitions, “land held by a Land Trust for an estate in fee simple”. So that relevantly, for present purposes, as I noted before, there are two routes provided under the Act for grants in fee simple to be made. The first is pursuant to section 10 of the Act which involves those lands which are described in Schedule 1 to the Act and in relation to which, once a land trust has been established, the Minister is obliged to recommend to the Governor‑General that a grant of an estate in fee simple be made.

The Schedule 1 lands, with three exceptions, were as described in the original Act and in substance, as recommended by Justice Woodward, the three exceptions which have been added – and this is at page 123 of the reprint – are Alligator Rivers (No 1) and (No 2) and Uluru.  That perhaps does not matter, but the others are all subject to the recommendation of Justice Woodward and they were all Aboriginal reserves at the time that the Act commenced.  While your Honours have it open, may I simply take your Honours to page 126 of the reprint, in the second half of the definition of the Arnhem Land (Mainland) grant ‑ ‑ ‑

KIRBY J:   You are using reprint 5?

MR BASTEN:   I am, your Honour.

GLEESON CJ:   It is on page 106 of reprint 4.

MR BASTEN:   Thank you, your Honour.  I may find it harder to pick up in reprint 4, but about eight lines from the end there is a phrase starting, “but excluding”.  The effect of that phrase is – I should go backward.  The schedule defines a boundary which follows the low‑water mark of the sea coast.  When it comes to an intersecting estuary or river it seeks to draw a line from the seaward extremity of the low‑water mark of the bank of the river or estuary across.  So that when I made reference earlier to lands which are submerged being Aboriginal land in any event regardless of the claim process, I was referring particularly to those estuarine parts of the coast which will be permanently submerged land.

GLEESON CJ:   Now, what, if any, significance does the consistent reference to low‑water mark as a boundary in Schedule 1 have?

MR BASTEN:   I think the short answer to that, your Honour, is that in picking up the – I will come to what Justice Woodward says about this, but in picking up the reserves, that was the boundary line which his Honour thought appropriate, subject to some qualification which I will come to.  It was the boundary, yes.  I think his Honour noted that there was some dispute as to where the boundary line lay in some respects, but generally speaking, all that this does is to pick up the reserves and vest them in the land trusts.  That is the purpose that his Honour identified.

GUMMOW J:   Now, one has to find Crown land to start off, does one not?

MR BASTEN:   Yes, your Honour.

GUMMOW J:   And then one has to find a particular area in Schedule 1, does not one?

MR BASTEN:   No.  I am so sorry, for – well, can I just finish the structure, perhaps?

GUMMOW J:   Yes.

MR BASTEN:   Your Honour is correct. In relation to section 10 it deals only with those scheduled lands and in relation to the second mechanism to which I adverted, which is not identified by Justice Woodward, there was a claim process in section 50, including section 50(1)(a) to which I will come in a moment, which resulted in recommendations being made under section 11, which is headed “Recommendations for grants of Crown land other than Schedule 1 land and former public roads” with which I need not trouble your Honours at the moment, but those are dealt with in section 11B.

GUMMOW J:   Yes. Now, are we section 10 or section 11?

MR BASTEN:   For the present purposes, your Honour, we are dealing with a claim which, if it were to go forward, would result in a recommendation which would be dealt with pursuant to section 11.  I will come to the nature of this process but the Land Commissioner does no more than prepare a report for the Minister identifying certain things.  The Minister then has to be satisfied that the land should be granted and, if so satisfied, then shall establish a land trust and make a recommendation to the Governor‑General.  That has some significance because, as your Honours may recall from the Peko‑Wallsend litigation, there is a separate executive step to be taken before any grant is made and matters which are relevant to the Minister will be taken into account at that stage.

KIRBY J:   Justice Merkel ends his reasons with the reminder that he is dealing, as this Court now is, only with the question of the power to make the order and not with whether it gets through the various stages.

MR BASTEN:   Indeed, and the way that the matter has come up before the Court – and if I might turn to section 50, which is at page 93 of the No 5 reprint, there has been no inquiry completed in relation nor has the inquiry addressed any evidential aspect at this stage. Evidence was called before the Commissioner as to which bays and gulfs of the Territory were within the limits of the Northern Territory. His Honour made no finding about any of that material. There has been no evidence called at all of whether there are any traditional rights or interests in the particular bays and gulfs his Honour was concerned with.

GUMMOW J:   Now, the non‑submerged land, if I can put it that way, to which the present claim areas are appurtenant, are they all in Schedule 1?

MR BASTEN:   Yes.  The answer is no in a simple sense, your Honour.  This particular claim includes land which is off one of the Schedule 1 areas, which is the Wagait area, but it extends beyond the boundaries of that area.

KIRBY J:   So, putting it generally, some of the land that is the subject of the claim was Aboriginal reserve and some goes into general Crown land unallocated?

MR BASTEN:   Not quite, your Honour, because there was no claim made inevitably, really, for any land which was already Aboriginal land. 

KIRBY J:   That is a very general expression. As I understand it, there are the two routes to an order by the Commissioner. One is in respect of Aboriginal reserves, and that is the Schedule 1 route via section 10, and the other is in respect of non‑Aboriginal reserve Crown land, which is the route that takes you into section 11. Is that correct or not?

MR BASTEN:   Yes, it is, your Honour.  I only referred to the reserve lands to explain the reason why they were scheduled and not the subject of any other process.

KIRBY J:   They were easier, in a sense, to bring within the ambit of this Act because they were already designated Aboriginal areas.

MR BASTEN:   Areas, yes.

KIRBY J:   Of your claim, do I understand it is on the cusp, is it?  Part of it is in a reserve and part of it is beyond that?

MR BASTEN:   No, none of it is any reserve because all of the reserves are relevantly granted and when I use the term “Aboriginal land” I mean land which is vested in a fee simple in a land trust, that is the defined phrase, so land which is already the subject of a fee simple estate is not the subject of either this claim or of the other coastal claims which are backed up behind this one.  There are, for example, claims along the Arnhem Land coast all of which commence at the boundary of the Arnhem Land mainland grant which is already Aboriginal land vested in the Arnhem Land Aboriginal Land Trust.

If I might just go back to section 50 which provides the second mechanism which is a claim process.  A claim made under section 50(1)(a) is to:

an area of land, being either unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals.

There are, in short, two concepts there, each of which is defined in section 3(1) and by reference to Crown land.  For example, alienated Crown land is defined to mean:

Crown land in which a person (other than the Crown) has an estate or interest, but does include land in a town.

Crown land is in turn defined to mean:

land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple –

so that when those definitions are read together no land, even that owned by Aboriginals, which has been granted in fee simple can be the subject of a claim but any other land in the Territory which has not been so alienated, for example, pastoral or special purpose leasehold land where the lease is held by Aboriginals, could be the subject of a claim as alienated Crown land within the precise terms of that definition.  One needs to read the definitions compositely in order to understand the exclusion from Crown land which, of course, is slightly broader than that which I read to your Honours.  It includes “dedicated” and “reserved” or dedicated lands and land set apart from a public purpose.  There are other exclusions, in other words.

One then comes, for the purposes of the argument, to the phrase in the definition of Crown land, which “means land in the Northern Territory”.  Might I say that although the Act defines Crown land with a capital “L”, I do not understand anything turns on that.  The phrase used in the Act usually has land with a little “l” as appears from “alienated Crown land”.  It is obviously intended to be the same phrase.

The first question is the meaning of the term “the Northern Territory”.  Perhaps this is self‑evident, but may I simply note that it is not defined in this material, this Act.  It is not defined at all in Commonwealth Acts since, I think, the Northern Territory Acceptance Act of 1910, of which we have provided extracts to the Court in the form it was in in the 1973 reprint which, of course, was immediately prior to the 1976 enactment of the Land Rights Act and at page 660 of that volume, section 4 of the Northern Territory Acceptance Act, one finds a definition of the Northern Territory and I will come to this if I may but it is, in substance, familiar from the definition in the letters patent.  It reflects the letters patent and it reflects the description which was adopted in relation to South Australia which was considered in Raptis to which I will refer your Honours briefly.

KIRBY J:   Whose letters patent were these, and to whom?  This is Queen Victoria’s letters patent, is it? 

MR BASTEN:   Your Honour, 1863. 

KIRBY J:   Whom did she give them to?  The Governor of South Australia? 

MR BASTEN:   The Governor of South Australia.  That is recited, your Honour, in the first of the recitals in the preamble to the Acceptance Act. 

KIRBY J:   Yes, I see that. 

MR BASTEN:   Relevantly, for present purposes – and, ultimately, this was a matter which was agitated but not determined by the Commissioner ‑ they include reference to, after the identification of the latitudes and longitude: 

together with the bays and gulfs therein, and all and every the islands adjacent to any part of the mainland within such limits as aforesaid, with their rights, members, and appurtenances –

so that is, as we would understand it, the definition of the Northern Territory, which is picked up, in effect, for all relevant purposes of the Commonwealth Parliament.  And except in relation to bays, gulfs and estuaries, the Northern Territory ended, and still ends, of course, at the low‑water mark. 

As we know, nothing in the offshore constitutional settlement of 1980 changed any of that.  So that, in substance, the respondent’s argument in the present case is that at least the Crown land which can be claimed under the Land Rights Act excludes bays and gulf within the limits of the Territory, and whether it includes or excludes the foreshore and the solum of estuaries is perhaps not entirely clear.  I am not sure that the respondent suggests that it does, in the present case, anyway, or otherwise.  Before leaving the scheme ‑ ‑ ‑

KIRBY J:   Is that relevant to knowing what the Commonwealth, by the Northern Territory Land Rights Act can give? 

MR BASTEN:   It is, your Honour. 

KIRBY J:   In other words, it is the corpus out of which you are giving this right.  Now, where are we left by that analysis that you have just made?  If we do not know what the Northern Territory is, do we not have to define that first, before we work out what the Land Rights Act provides of the Northern Territory? 

MR BASTEN:   I suppose the short answer is, your Honour, that, yes, but we can define it either conceptually or by drawing lines on maps.  What his Honour the Commissioner did was to say that no gulf, however enclosed and however shallow, or no bay, however shallow or small or enclosed, can constitute land in the Northern Territory for this purpose, without identifying by reference any particular bay or gulf.  As your Honours may recall in Yarmirr – although it did not come in this form before your Honours – the same Commissioner had, in dealing with a native title claim as a judge of the Federal Court, identified a bay in the Croker Island area which was said to be a “bay” for the purposes of defining the limits of the Northern Territory.  No doubt, there are others, some of which I will refer to in a moment. 

Before leaving the scheme of the legislation, it is necessary to note the effect of the Self‑Government Act. Upon acceptance in 1911, the land of the Northern Territory, as defined, which had previously formed part of South Australia, vested in the Commonwealth. That appears to have occurred not simply by force of the statute – although section 10 may be relevant in that regard – but pursuant to section 111 of the Constitution. We have not given your Honours a reference to it, but might I simply note, your Honour Justice Gummow dealt with this matter in Newcrest Mining v The Commonwealth (1997) 190 CLR 513 at 614 to 615, and 624, at about point 6. But if one assumes, for present purposes, that at that time, namely, just before self‑government and the enactment of this Land Rights Act, all of the Territory was vested in the Crown in right of the Commonwealth, then, on self-government, what occurred was a transfer pursuant to section 69(2) of the Self-Government Act, which we have provided your Honours with a copy in an additional set of materials. I think it is in the same bundle your Honours have, the last three pages. Section 69(2) provided that:

All interests of the Commonwealth in land in the Territory -

precisely the same phrase as that in the definition of Crown land in the Land Rights Act –

other than interests referred to in sub-section (5), are, by force of this section, vested in the Territory on the commencing date.

Subsection (3) provides that interests held from the Commonwealth prior to that date were thereafter held from the Territory. 

Your Honours, apart from noting the similarity in language, “land in the Territory”, we do not understand about the foreshores or the solum of the estuaries or bays or gulf were omitted by those provisions so as to remain some kind of Commonwealth enclave.  It is clear, one would think, that all the seabed within the limits of the Territory and the foreshores was transferred from the Commonwealth to the Territory by this provision.  At the same time as the Self‑Government Act, the Land Rights Act was amended to introduce section 3A which commenced on the same date, namely, 1 July 1978.  Section 3A provides for Crown land vested in the Northern Territory.

Notwithstanding any law of the Northern Territory, the application of this Act in relation to Crown land extends to Crown land that is vested in the Northern Territory –

and no payment is to be made.  So that on its face, the effect of section 3A is to provide that the Land Rights Act has operation in relation to all of the Crown land which has just been transferred from the Commonwealth to the Territory. 

Your Honours, in relation to the boundaries of the former colonies, I do not think it is necessary to take your Honours in detail to any of the cases given the statutory scheme.  We simply note that they were referred to by your Honour, and reviewed, I think, by your Honour Justice McHugh in some detail in Yarmirr’s Case, but Yarmirr was of course concerned specifically with the territorial sea.  The only purpose of referring them ‑ and we have given your Honours copies of the relevant passages from three cases ‑ is to make it clear that there was no doubt, at the time of the Self‑Government Act, that within the limits defined by the letters patent, the subjacent soil of the sea was vested in the Commonwealth and that was what was transferred, accordingly, to the Northern Territory at self‑government.

Your Honour, we have included in a bundle of three cases, Bonser v La Macchia 122 CLR 177 and the relevant pages commence at page 196 in the judgment of Chief Justice Barwick, where his Honour noted, at about point 7 on the page, referring to the imperial territorial limits:

The territorial limits of a State or Territory would be the coastline at low‑water mark.  In strict legal parlance, waters within the territorial limits of a State or Territory, are, in my opinion, the “inland waters”, comprising the waters within estuaries, enclosed bays and the inland rivers.

GUMMOW J:   What is the logic of this, Mr Basten?  The Land Rights Act came into force in 1976.

MR BASTEN:   Yes.

GUMMOW J:   You say one looks at that to determine its territorial scope?

MR BASTEN:   The territorial scope of the Northern Territory and therefore what land is referred to as Crown land in the Territory, your Honour.

GUMMOW J:   Yes.  How does what happened later with self‑government ‑ ‑ ‑

MR BASTEN:   It is simply a chain of title, your Honour, that if one knows what the legal situation ‑ ‑ ‑

GUMMOW J:   But it is not a chain of title.  It is a posterior chain of title.  Chains of title are anterior.

MR BASTEN:   Yes, your Honour, except for section 3A of the Land Rights Act which makes express provision ‑ ‑ ‑

GUMMOW J:   But I thought you said we started off looking at the Act as it originally stood.

MR BASTEN:   One does, and I said that ‑ ‑ ‑

GUMMOW J:   You say it gets better, does it, because of what happened with self‑government?

MR BASTEN:   It becomes clearer perhaps.

GUMMOW J:   That is what I am trying to get from you.  When you say it becomes clearer ‑ ‑ ‑

MR BASTEN:   Well, it may not become clearer.  It is consistent, shall I put it that way.  What happened at self‑government was that land in the Territory was transferred from the Commonwealth to the Territory and that included, as was well understood legally, the land which was the subjacent soil of the sea in the estuaries, bays and gulfs.

KIRBY J:   Would you remind me:  is this a point in dispute between you and the Northern Territory?

MR BASTEN:   I doubt if it is, your Honour, no.

GLEESON CJ:   Could I just take you back to Bonser v La Macchia at page 196. As at 1976 the lands the subject of your present claim, the submerged lands the subject of your present claim, fell within which of the categories referred to by Chief Justice Barwick?

MR BASTEN:   They fell within the description of “inland waters” that his Honour gave as being “waters within the territorial limits of a State or Territory”, in this case the Northern Territory.

GLEESON CJ:   I have not quite followed that.  Is the land subjacent to waters within enclosed bays?

MR BASTEN:   Yes.

KIRBY J:   All of it?  None of it is simply adjacent to the Australian coastline with no bay, estuary or river involved?

MR BASTEN:   Your Honour, the position that we take is that where there is no bay or gulf within the definition of the Northern Territory, the Northern Territory ceases at the low‑water mark and therefore no claim can be made under this Act to any area beyond the low‑water mark of that seacoast.

McHUGH J:   What about your claim in your application for islands, reefs, matters of that nature?

MR BASTEN:   They fall into a different category and they are not challenged in the present proceedings, as I understand it.

KIRBY J:   Is there a map of the claim area in the appeal book?

MR BASTEN:   There is a map, your Honour.  It is not a particularly clear map.  It is at page 4.

McHUGH J:   I am not sure that the passage that appears at 196 is truly exhaustive of the territorial limits of certain places, including the Northern Territory.

MR BASTEN:   Yes.

KIRBY J:   There was the Seas and Submerged Lands Act Case after that, was there not?

MR BASTEN:   That was consistent with that, your Honour.

KIRBY J:   Is that one of the three cases you say that you have ‑ ‑ ‑

MR BASTEN:   Yes, it is.  It is the second of the cases from which we have given your Honours extracts.  We did so largely to pick up the description from the judgment of Justice Jacobs at pages 486 to 487, which was the passage I think your Honour Justice McHugh picked up in Yarmirr – and no doubt your Honour Justice Callinan also, though I am not sure whether expressly – to demonstrate the difference between the inland or internal waters within the boundaries of the Territory and the territorial sea which was claimable perhaps as part of the Crown’s prerogative but not, as your Honour found in dissent on this point relevantly perhaps, part of that to which the common law applied.  I think that was the purpose of your Honour’s description, but that purpose perhaps does not matter.  We simply sought to refer to that passage in Seas and Submerged Land for that purpose.

GLEESON CJ:   But I would like to be clear if I may about the relationship between your claim and some of the expressions used in these judgments that you are referring us to.  Are the submerged lands the subject of your claim lands beneath waters of enclosed bays and gulfs?

MR BASTEN:   If by that your Honour is – in Bonser his Honour is dealing with New South Wales, which does not have reference to bays and gulfs.  In Raptis, where this Court looked at the South Australian letters patent which did refer to bays and gulfs, at least Justice Gibbs may have thought that that clarified and possibly went beyond whatever the common law defined as a bay or a gulf.  That is perhaps an unresolved issue which remains unresolved for the present case.  I only say that because when his Honour refers to “enclosed bays and gulfs”, one would think he would be referring to either historic bays or the land intra fauces terrae, which was no doubt the common law principle.  It is really only a qualification.  I agree with what your Honour has put to me, subject to what his Honour meant by “enclosed”.

GLEESON CJ:   Would he have thought that Botany Bay was an enclosed bay?

MR BASTEN:   I would have thought so, your Honour.

KIRBY J:   You were going to tell us where this map is.  Is that the one at page 4?

MR BASTEN:   The map at page 4 ‑ ‑ ‑

KIRBY J:   I just do not understand it.

MR BASTEN:   Well, page 4 was the map, I think, which accompanied the application.  My friend says 24 is a better – yes, your Honour, the map at page 24 demonstrates the boundaries of the claim by reference to the territorial sea baselines.  It was an issue about which his Honour heard submissions as to whether bays and gulfs, as defined in the letters patent or the Acceptance Act, included each or any of the indentations of the coast identified on those maps.

KIRBY J:   So, for the purpose of the letters patent, those black lines on the map at 24 mark off what is taken as a territorial sea, do they?

MR BASTEN:   Not necessarily.  Those are the baselines created in 1973, I think, when the Seas and Submerged Lands Act – they may or may not correctly reflect what were bays and gulfs so understood at the date of the letters patent.

KIRBY J:   And where is your client’s claim?  Is that described?

MR BASTEN:   The dark line – your Honour, there are a number of claims around the coastline so that this particular claim was identified – it is within the two dark lines on the left of the map.  One ignores the dark line across the top of Van Diemen Gulf on the north side and it is within the area of the territorial sea baseline to the west of Beagle Gulf in the middle of the page and the boundary line identified across the Clarence Strait in the middle of the page.

KIRBY J:   So, is your client claiming land rights under the Northern Territory Act in all of that area of Beagle Gulf which is between the two dark lines abutting the city of Darwin?

MR BASTEN:   That is the area of the claim.  It is subject in the description to constituting bays and gulfs within the meaning of the Acceptance Act and it is subject, of course, to establishing traditional links to that or any part thereof.

McHUGH J:   Does the claim include all those islands as well?

MR BASTEN:   No, it does not, your Honour, because there was a separate claim over the Vernon Islands in the Clarence Strait and some of the islands – and Quail Island, if your Honour sees towards the bottom of the claimed territorial sea baseline on the left, and some related reefs and things have been the subject of another claim, so one cannot be precise in saying that the islands are claimed but some of those in the mouths of other inlets, including Bynoe Harbour ‑ ‑ ‑

McHUGH J:   What about such matters as a reef which at some part of the day may be under water and other parts of the day may not be under water? 

MR BASTEN:   Yes.

McHUGH J:   They are claimed as well but they do not enter into this debate.

MR BASTEN:   They have nothing to do with this debate and there has been some consideration, I would have thought not relevant for present purposes, in one of the land claims of which there may be an extract of a report in these materials which deals with islands, reefs and sandbars, I think.

KIRBY J:   Is that a land claim by your client or by some other ‑ ‑ ‑

MR BASTEN:   Well, it would have to be a land claim by the Northern Land Council, your Honour, not by these particular individual claimants, I think.

GLEESON CJ:   What is the length of the baseline alongside which the words “Territorial sea baseline” appear?

MR BASTEN:   There was evidence of this, your Honour, but I do not remember presently.

GLEESON CJ:   It would be at least tens of miles.

MR BASTEN:   Yes.  Yes, it would.

GLEESON CJ:   Does your claim include, for example, the area beneath where the words “Beagle Gulf” appear on this map?

MR BASTEN:   Yes.  I think that was one of the gulfs that was relied upon.

McHUGH J:   I thought it was almost at the heart of it, was it not?

MR BASTEN:   Darwin?

McHUGH J:   Beagle Gulf is at the heart of the claim.

MR BASTEN:   Yes, although obviously there are other things described as bays and so on which are within that, which as a fall‑back position one would need to consider separately from the question of Beagle Gulf.  I mean the point about Beagle Gulf ultimately is that it was not named as such at the time of the letters patent and there is, therefore, a question ‑ ‑ ‑

McHUGH J:   It was not until after the World War II.

MR BASTEN:   That is so, yes, and there is a question mark about whether that was treated as a gulf for relevant purposes when the letters patent were created and that is an issue of fact which is still before – if there is still a land claim on foot, then that is a matter which his Honour would need to consider and about which he heard evidence.

GLEESON CJ:   At some stage I would be interested to know the length of that territorial sea baseline because that, I imagine, is equal to the width of Beagle Gulf.

MR BASTEN:   Yes, yes.  I think that was why it was drawn there by the Commonwealth authorities who fixed these baselines, but we can provide your Honour with that information.

GLEESON CJ:   Thank you.

CALLINAN J:   Is all of the Clarence Strait territorial water?  What is the situation?

MR BASTEN:   Your Honour, that is one of the questions for consideration as to whether ‑ ‑ ‑

CALLINAN J:   What is the distance, the longer distance of the – on the longer baseline?

MR BASTEN:   Well, there is not a baseline there because the Commonwealth’s ‑ ‑ ‑

CALLINAN J:   I am sorry, the western definition of the claim.  What is the length of that?

MR BASTEN:   I can find that out, your Honour, but that perhaps is an artificial boundary.  There is another claim to Van Diemen Gulf which is on the right, but the shortest distance of Clarence Strait, ignoring the Vernon Islands, is between Point Gunn and Cape Gambine, I think it is.

CALLINAN J:   Mr Basten, I appreciate that having regard to the stage that the proceedings had reached it might have been premature for evidence of this matter to be led, but was there any evidence as to the way in which the indigenous people might have a spiritual affiliation with water and how they would celebrate that spiritual affiliation with water?

MR BASTEN:   No, your Honour, there was not because what his Honour did was to identify ‑ ‑ ‑

CALLINAN J:   It was premature, yes.

MR BASTEN:   ‑ ‑ ‑ a preliminary question and none of that was held to be relevant to that issue.

KIRBY J:   There was some statement by Justice Woodward in his report about some of the matters and they are referred to in the judgment.

MR BASTEN:   Yes.

KIRBY J:   But you have not got to that in this case?

MR BASTEN:   We have not got to ‑ ‑ ‑

KIRBY J:   In a sense there is a knock‑out point.

MR BASTEN:   That is the issue.  The seriousness of the issue is obviously that whatever the appropriate limits on what can be claimed as land within the Northern Territory – and it may or may not include Beagle Gulf – the way that his Honour dealt with it means that nothing below the low‑water mark of the seacoast is available for claim.  So that even within what would be undisputed bays to which Justice Woodward refers in his report, which is referred to at page 175 at paragraph 91 of his report where his Honour identifies various enclosed bays such as Buckingham Island and Blue Mud Bays, those would presumably be excluded for claim if we are wrong in our construction of the Act.  That is ultimately no doubt the substantial question of importance which underlies this particular application.

KIRBY J:   And you do not dispute that low‑water mark fixes the boundary of any claim where there is no enclosed water, bay or river?

MR BASTEN:   That is right.

KIRBY J:   But you say that where those categories exist there is potential to make a claim and so far you have been knocked out at that point?

MR BASTEN:   That is so.  As a matter of power, his Honour’s ‑ ‑ ‑

KIRBY J:   Would it be too much to ask – you went through carefully the letters patent up to the present time.  I did not understand from reading the submissions that there is a dispute about it, but if there were not a dispute about it – it is a tricky area – that could be the subject of some common statement of tracing the way in which the extent of the Northern Territory was defined and then handed to the Commonwealth and then handed to the Northern Territory.  That would certainly be helpful to me.

MR BASTEN:   Yes.  Perhaps the short answer to that is that I should discuss that with the Solicitor‑General and see if there is a dispute before suggesting a way of dealing with it.

KIRBY J:   That is the pool, in a sense, out of which you have to try and get your claim.

MR BASTEN:   Yes.  I think that the difference, ultimately, which may arise between us is as to the scope of the phrase “bays and gulfs”.  In that extract from Bonser v La Macchia in the bundle which we provided to your Honours, at page 233 in the judgment of Justice Windeyer, just before his Honour’s conclusions, his Honour said:

It is worth noticing too that the Province of South Australia included “all and every the islands adjacent thereto and the bays and gulfs thereof”.  Spencer Gulf and St Vincent’s Gulf are therefore to be deemed to be intra fauces terrae.

Obviously, how that applies in the Northern Territory is not a matter which was considered either in Bonser or in Raptis where Justice Stephen, I think, goes through the history of the matter in some detail.  If I might just finish what was intended to be a brief reference to that material.  We have also included an extract from Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340, simply for the passage at the top of page 358 where the whole of the Court affirmed the proposition that the result of the Seas and Submerged Lands Case was that the Act:

declaring and enacting that “the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth” and decided that the boundaries of the States ended at the low‑water mark and at the closing lines of bays and gulfs and that these boundaries did not, as had widely been believed, encompass the territorial sea.

So that was, as we understood it, the well understood position as at 1976, although, of course, that is a slightly later authority.

KIRBY J:   Could you explain to me why, following the creation of the Commonwealth and the States by the Constitution, it was necessary in law to posit the Crown as a relevant concept here? Why did it not just pass to the Commonwealth and States? It may not be necessary for us to get into it but I see all these references to the Crown but I just wonder as a legal concept under the Constitution why that was necessary?

MR BASTEN:   I am conscious of the comments which members of the Court have made about the role of the Crown, obviously ‑ ‑ ‑

KIRBY J:   Justice Gummow said something about it.

MR BASTEN:   Yes.  In the area of land it is simply a continuation of the practice, I think, of referring to Crown land and ‑ ‑ ‑

McHUGH J:   The Commonwealth and States for a long period of time were regarded as no more than political organisations and there was a serious question as to whether they were legal entities in a sense that they could hold land as opposed to the Crown in right of the State or Commonwealth.

MR BASTEN:   And, indeed, as to the appositeness of that expression “the Crown in right of” one or the other.

McHUGH J:   Yes.

KIRBY J:   Anyway, it is probably a side issue.

MR BASTEN:   Yes.

GUMMOW J:   Section 51(xxxi) does not talk about resuming State Crown land.

MR BASTEN:   No, obviously it goes beyond land, about other things, I suppose.

GUMMOW J:   No, it does not talk about the Crown; it talks about the States.

MR BASTEN:   No, that is so, yes.

GUMMOW J:   It seemed to assume they owned it.

MR BASTEN:   I am sorry?

GUMMOW J:   It seemed to assume they owned it if it was going to be ripped off them.

MR BASTEN:   Yes, and there are references, I think, in this Act to the land of the Commonwealth, or perhaps it is in the Self‑Government Act, to the land of the Commonwealth as well as land hailed by the Crown, I think, so that ‑ ‑ ‑

GUMMOW J:   Nor does section 111 talk about the Crown.

MR BASTEN:   No.

KIRBY J:   One day we may have to deal with this but we have enough on our plate.

McHUGH J: Well, there are other things – State railways are referred to in the Constitution. There are a lot of references which would indicate that ‑ ‑ ‑

KIRBY J:   It is probably historical from the times of Empire and it is just that we now see it with different eyes and re‑examine the concept, including the words that are used in the Constitution. It would seem inconsistent with the notion.

MR BASTEN:   Yes.  It perhaps does not matter for present purposes and when one is talking about the nature of the radical title of the Crown, one may be going beyond simple questions of ownership of property into power and jurisdiction to confer title on others, which is at the heart of that concept.  It all seems to be encompassed within the concept of Crown land or land which is the property of the Commonwealth. 

Your Honours, I want to come back, if I may, in a moment, to the Land Rights Act, but just in order to complete the material which is derived from the statutory context, we have included in the bundle of materials a copy of the Crown Lands Ordinance (No 2) of 1969, which we understand as no more than consistent with the argument that we have been putting.  In 1969, and for reasons which are, no doubt, beside the point for the present case, the definition of “Crown lands” in the Crown Lands Ordinance of the Northern Territory was amended to include the words “including the bed of the sea” within the territorial limits of the Northern Territory. 

We note, if your Honours go to the following page, that that amendment was assented to by the Governor‑General of the Commonwealth.  The reason for that was that, pursuant to the Northern Territory (Administration) Act, in those sections that I provided earlier in the bundle, section 4W, the Administrator was required to reserve to the Governor-General’s pleasure, “any Ordinance”: 

(a)  dealing with the granting or disposal of lands of the Crown or of the Commonwealth –

using both those phrases.  We refer in the written submissions to authorities, at paragraph 5.15 at footnote 45, amongst other cases, to Lennon v Gibson and Howes as authority for the proposition that one can take account of the ordinance of the Territory, then part of the Commonwealth’s Executive, as demonstrating an example of the application of the in pari materia principle:  the same terminology used in statutes with a common source and in a similar connection should ordinarily be interpreted as having the same meaning. 

KIRBY J:   It cuts both ways, though, does it not?  I think the intervener makes the point that where the legislature wanted to make it clear, it did so.  In the case of the Land Rights Act, it did not have a similar provision. 

GLEESON CJ:   Thank you, Mr Fraser.  Yes, Mr Basten. 

MR BASTEN:   Thank you, your Honours.  If I may briefly make some short points.  Firstly, in relation to the area claimed, the document which sets out the claim is at page 1, and the relevant passage is at lines 45 to 50.  It is defined as: 

All that land in the Northern Territory of Australia which is adjacent to, and seawards of the low water mark of the seacoast –

So that the points X and Y on the map are merely the points identified as the coast limits for the purposes of this claim.  The boundaries which were drawn involving the baselines were part of the pleadings, as it were, in an informal sense before the Land Commissioner which sought to identify what might be considered parts of the Northern Territory.  No factual findings in that regard were made.

GLEESON CJ:   Are the claimants the owners of the adjacent dry land?

MR BASTEN:   No, no, for the most part, no, your Honour, because most of the adjacent dry land is either under claim or is privately owned.  Apart from the point where it touches the Schedule 1 lands in Fog Bay, there have been no finally determined claims in the area, apart from some minor areas, unless we look at ‑ ‑ ‑

GLEESON CJ:   Throughout the area of the claim, the commencing point of the claim is low-water mark, is it?

MR BASTEN:   Yes.

GLEESON CJ:   Title to the land down to low-water mark is almost invariably in people other than the claimants?

MR BASTEN:   In relation to this claim, I think that is right, your Honour.  In relation to the Arnhem Land claims, of course, it is the reverse.  I think about 80 per cent of the coastline may already be Aboriginal land.

GLEESON CJ:   But not necessarily land vested in these claimants?

MR BASTEN:   Not these claimants.

GLEESON CJ:   No.

MR BASTEN:   It would be vested in land trusts, your Honour, but there are a number of claims for the different groups.  In other words, the same claimants do not make claims beyond their area of traditional interest.

GLEESON CJ:   In part of the area, the subject of this claim, is adjacent to Darwin, is that right?  City of Darwin, including Darwin Harbour?

MR BASTEN:   Yes.

GLEESON CJ:   If the claim is successful the people who will have the right to get into and out of Darwin Harbour by sea will be people who are exercising public rights of navigation or fishing?

MR BASTEN:   If the Minister granted the claim, yes, subject to qualification perhaps I can come to.

GAUDRON J:   For that purpose you have got what Mr Fraser said, any grant would be subject to the public rights?

MR BASTEN:   Your Honour put some words that I had said this morning, they were meant to be a summary of the law as I understood it following the indecisive Full Court case and I was seeking to say that these issues were undetermined.  I must confess that the argument that we put in the Full Federal Court in the matter to which reference has being made was along the lines of what Justice McHugh put to me this morning, but the reception was not positive.  In a sense we have reversed roles here.  I am not seeking to put a submission about that, merely to note what appears on the current reported case law to be the preferred position.

Your Honours, might I also say in relation to the gazettal of the land council boundaries, as I think your Honour Justice Callinan noted, the gazettal can hardly be conclusive of statutory construction arguments.  The relevant statutory provision is section 21(1) which requires the Minister to divide the Northern Territory, so if the gazettal goes beyond the boundaries of the Northern Territory there would be some question about its operation, one would think.

Thirdly, in relation to your Honour Justice Gaudron’s question about entry of officials and various other people onto Aboriginal land, I think the answer has been given.  Section 73(1)(b) allows for the Northern Territory laws to make provision in that regard, and they do.  The position of entry over water presumably cannot be any more difficult than entry over land, which is now provided for in the way that the Solicitor indicated.

There are two other points.  One is a short point.  Mr Fraser, in his oral submission, comes back to the argument that section 70 and 73, other than paragraph (c) of 73(1), do not in their terms appear apt to deal with permanently submerged land.  The problem with the argument is, of course, that they deal with Aboriginal land and, as we know, some of it is permanently submerged.

The final point I wanted to make is a slightly more substantial one.  The Solicitor complains that we adopt an a priori approach to our argument in this case.  With respect, we did not seek to do that.  We sought to argue, as a matter of principle, from the statutes of the Parliament.  In the written submissions we referred, particularly as a further point – and I do not need to repeat it – to the approach adopted in the Royal Metals Case and to the relevance of section 22(1)(c) of the Acts Interpretation Act.  The short point is this.  That if one starts with the Acts Interpretation Act, it is clear that it envisages that interests in land can constitute land.  It is also clear that in an appropriate context land can be the simple physical object, or referent.

In the Royal Metals Case it was accepted that under the Lands Acquisition Act one could adopt both meanings.  The prima facie conception underlying the Acts Interpretation Act is that the physical referent will be that in which interests can be held and, no doubt, land can therefore for that reason include the interests.  The starting point of our argument was that the legal signification of land commenced with the proposition that it was something capable of alienation or something in which interests could appropriately be held from the Crown.  That was the principal basis on which we sought to adopt the approach.

My friend says, at the end of the day, reading these reports and so on, we only get to the low‑water mark.  The question that he must answer is how we get there and the answer to that question is because, for the most part, it will be the boundary of land in the Northern Territory.  There will be some exceptions for bays and gulfs, but the reason one gets to the low watermark is because that is the terminus of the concept of the land in the Territory.

Finally, in respect to the operation of this Act, what he does not answer is the proposition that if one wants to depart from that approach to the concept of land, the departure must be informed by a concept and understanding of the function and mischief to be served by this Act.  An understanding of the concept of Aboriginal traditions upon which this Act is based indicates that it would extend to the concept of land under the sea in the bays and gulfs, if not further, and therefore we say they should properly be included within those matters into which claims may be made and about which the Commissioner may inquire.  Those are my submissions.

GLEESON CJ:   We will reserve our decision in this matter.

AT 4.15 PM THE MATTER WAS ADJOURNED