Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors (2008) HCA 29.
Between: Northern Territory of Australia and Director of Fisheries (NT) [APPLICANTS]
Arnhem Land Aboriginal Land Trust, Northern Land Council, and Native Title holders: Gawirrin Gumana, Djambawa Marawili, Marrirra Marawili, Nuwandjali Marawili, Daymambi Mununggurr, 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, Marrakula 1, Marrakula 2, Wanawalakuymirr Marrakulu, Djarrwark 1, Djarrwark 2 and Nurrurawu Dhapuyngu (Dhurili/Dhurila) Groups [RESPONDENTS] and Northern Territory Seafood Council and the Commonwealth of Australia intervening.
Judges: Gleeson CJ, Gummow, Hayne & Crennan JJ; Kirby J concurring. Heydon and Kiefel JJ dissenting.
Decision: The Indigenous respondents have an exclusive right of possession over the intertidal zone and all the marine property within it. This right over water is not derived from native title, but from the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
For the previous Federal Court decisions of this case please follow the link below under 'References'.
High Court Decision
In 1980, fee simple grants were made under the Aboriginal Land Rights (Northern Territory) Act 1976 to the Arnhem Land Aboriginal Land Trust which holds land (including Blue Mud Bay) for the benefit of the Indigenous communities in Arnhem Land. Each grant specified that the fee simple entitlement to exclude people from the land extended to the low water mark.
The issue was whether the grants enabled a right to exclude those with a valid fishing permit issued under the Fisheries Act 1988 (NT) from the intertidal area.
The Director of Fisheries (NT) argued that tidal waters were not part of Yolngu 'land' and fishing licences granted over that area validly authorised fishing (High Court Media Release). The respondents alternatively argued that the boundary defined by the grant also includes the water that ebbs and flows upon it and can therefore exclude people within the boundary, whether there is water upon it or not.
The majority of the court held that for the purposes of proprietary rights, the grants are defined by their geographical boundaries and not by whether any land is “dry” or covered by water. Heydon and Kiefel JJ in dissent found that water is not land within the traditional sense and the rights relate only to the seabed, not to the adjacent waters. For the minority, the right to exclude disappears once the water is above the land and the right returns as the tide goes out.
While holding that the type of property rights included within the grant entitles the Indigenous occupants to exclusive possession and the right to exclude others from that land, the High Court restricted the scope of the Full Federal Court’s order. The Full Federal Court had held that the Fisheries Act 1988 (NT) was invalid and of no effect within the grant areas, whereas the High Court held that fishers could not move within the Aboriginal owned tidal areas without permission from the Land Council.
The Fisheries Act is subject to, not invalidated by the Aboriginal Land Rights (Northern territory) Act 1976 (Cth).
This decision now enables the Indigenous land holders through the Arnhem Land Aboriginal Land Trust and Northern Land Council to issue fishing permits in exchange for a licence fee.
The Northern Land Council has allowed commercial and recreational fishing to continue for twelve months and the Northern Territory Seafood Council has responded positively with a view to a negotiated outcome for fishing permits. According to Professor Altman, this decision greatly increases coastal Indigenous land owners' negotiating power in the Northern Territory. Through joint ventures with government and commercial and recreational fishers, these communities will be able to derive a commercial benefit that the Aboriginal Land Rights Act does not otherwise provide (Prof Jon Altman, Crikey).
The Court's decision also potentially affects native title by enabling landowners and their representatives to negotiate agreements with third parties in relation to any "future act" within the low tide mark.