2008 Press Release

PR326

High Court Blue Mud Bay Decision

For Immediate Release 12/08/2008

TSRA Chairperson, Mr Toshie Kris, has congratulated the Indigenous people of Arnhem Land on the historic High Court Blue Mud Bay decision.

On 30 July 2008 in Canberra, the High Court delivered judgement in an appeal from a decision of the Full Court of the Federal Court on the question of whether a grant of land in fee simple to a Land Trust made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act), confers on Indigenous people, the right to exclude persons who wish to take fish or aquatic life (including persons holding a license under the Northern Territory Fisheries Act (the Fisheries Act) from tidal waters inside the area of the grant.

The majority of the High Court found that:

• The common law right to fish is amenable to abrogation (can be taken away) or regulation by statute;
• the Fisheries Act, which requires people to be issued licenses in order to fish in the Northern Territory, abrogated the public right to fish;
•  The Fisheries Act does not authorise persons holding a licence to fish in any particular place or area;
•  Conversely, s70(1) of the Land Rights Act confers on grantees of Aboriginal land, the right to exclude persons from the area of the grant; and
• The grant of land made under Land Rights Act is a grant of freehold title and expressly includes the intertidal zone (that includes land and waters down the low water mark).

The success of the Blue Mud Bay case depended largely on two things:

• the terms of the Fisheries Act that requires people to hold a licence to fish in Northern Territory waters; and
•  the existence of a freehold grant of land under the Land Rights Act which extends to the low water mark.

Mr Kris, said that this decision means that if a person, enters the waters of the Yolgnu People’s freehold land without first obtaining permission, Yolgnu People may exercise their right to exclude them.

“During the handing down of the High Court decision, comment was also made that the public right to ‘navigate’ waters is also susceptible to abrogation by legislation.

“While the case considers rights under the Land Rights Act, not the Native Title Act 1993 (Cth), the decision of the High Court will be considered closely for any implications it might have for the Torres Strait Regional Sea Claim currently being heard in the Federal Court of Australia”, said Mr. Kris.

“The decision is uplifting and inspiring for the Yolgnu People of Arnhem Land and I extend my congratulations to them. It has the potential to influence a shift in government policy, questioning the strength of the common law public right to fish and to navigate, said Mr Kris.

Mr Kris said the implications of the decision in Torres Strait waters remains to be seen but the fisheries legislation that applies is not the same as the Northern Territory fisheries legislation and generally, freehold grants of land to Torres Strait Islanders have not included the intertidal zone.”

ENDS
TSRA Media Contact: Yoshi Hirakawa Ph: 07 4069 0700
www.tsra.gov.au