""the non-tidal waters" means the waters landward of a straight line joining the seaward extremity of each of the opposite banks of each of the rivers, streams and estuaries … the beds of which are not exposed on any tide but which waters are otherwise affected by the tides of the sea;
"the tidal waters" means the waters overlying land on the landward side of the boundaries … which is exposed at low tide (not being non-tidal waters as defined);"
77 The definition of "tidal waters" adopted by the parties clearly falls within waters in which there may be a public right to fish. The definition of "non tidal waters" adopted by the parties is said by the respondents also to fall clearly within the expression 'tidal waters' as used in the authorities to indicate the extent of the public right to fish, because it is agreed that they are waters affected by the tide in rivers, streams and estuaries. The applicants dispute that those waters are necessarily subject to the public right to fish. At least to the line of the mean high water mark, they will clearly do so. It is ultimately a question of fact whether the "non tidal waters" are subject to a real perceptible and sufficient ebb and flow of the tide as to amount to the waters being within those waters in which there may be a public right to fish: Ingram v Percival [1969] 1 QB 548 at 554-555.
78 During submissions the applicants asserted that there is no agreement between the parties on that matter of fact. It would be inappropriate to decide this matter by reference to agreed facts, where there is apparently some ambiguity in what has been agreed. However, the conclusion I have reached does not require me to interpret the agreed facts to resolve that apparent misunderstanding in any event.
79 The Crown has, by the grant, alienated title in the bed of rivers, streams and estuaries above their mouths as fixed by a line across the low water mark of their extremities. I have concluded that, notwithstanding the grant, the public right to fish in the waters was not intended to be, and has not been, abolished in respect of the tidal waters (as defined by the parties). It does not necessarily follow that the grant under the Land Rights Act did not amount to the implied abolition of the public right to fish in the waters of rivers, streams and estuaries, at least beyond a line which represents a line drawn from the landward edge of the intertidal zone on the foreshore at the edges of rivers, streams and estuaries across the mouths of rivers, streams and estuaries. At least to that point, the non tidal waters (as defined by the parties) would be affected by a perceptible and sufficient ebb and flow of the tide to merit the description 'tidal waters' as traditionally used, for instance by the Privy Council in Attorney General for British Columbia v Attorney General for Canada.
80 In my judgment, the Land Rights Act and the grant do have the effect of impliedly abolishing the public right to fish above the high water mark line (to use a shorthand description). The nature of the grant, and the statutory provisions which relate to it, point to that conclusion. The fundamental feature of the grant is to provide that the Land Trust hold and exercise its rights over the land for the benefit of the Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned. The use of the land, it is argued, includes the use of the overlying waters. The Land Trust is empowered, in certain circumstances, to grant an estate or interest in respect of the land, or parts of it, to others: ss 19(4A) and (11) and 23(1)(e) and (4). Section 70 precludes persons from entering upon Aboriginal land except to the extent permitted by s 70(2) to enjoy an estate or interest in Aboriginal land. The powers of the Northern Territory to enact reciprocal legislation in s 73 are also limited by reference to the interests of Aboriginals who use land in accordance with Aboriginal traditions. In my view, the objectives of the Land Rights Act and those provisions indicate that the rights of exclusive possession and use of the land was contemplated to remove from the public the rights to take fish and other aquatic life landward of the high water mark line. If that were not so, the public right to fish could be exercised in respect of the non tidal waters (using the parties' definition), that is the waters in rivers, streams and estuaries affected by tidal waters, a considerable distance inland of the boundaries of the land and of the high water mark line.
81 In addition, as I remarked earlier in these reasons, the concept of the buffer zone discussed by Justice Woodward has found its expression in the reservation of powers to the Northern Territory in s 73 of the Land Rights Act. As previously noted, the Northern Territory has powers to regulate or prohibit the entry of persons into, and controlling fishing or other activities in, waters of the sea adjoining and within two kilometres of Aboriginal land. Tidal waters (as defined by the parties) readily fall within the expression waters of the sea. Where waters of the sea flow inland with the tide, depending upon the season and the prevailing conditions, those waters may account for a relatively small proportion of the waters of the particular river stream or estuary at a particular time. At other times, the effect of the waters of the sea driven inland by the tide may be very much greater. The variation of those circumstances is itself a reason why it is likely to have been intended that waters landward of the high water mark line were not intended to remain susceptible of the exercise of the public right to fish. So too is the fact that the line in respect of which the legislative exercise of powers under s 73(1)(d) of the Land Rights Act may be exercised, if the respondents be correct, will be one involving substantial geographical indentations to accommodate the inland movement of waters of the sea into rivers, streams and estuaries. The buffer zone which was first contemplated, and is reflected in s 73 (1)(d), is more likely to have been intended to operate by reference to the high water mark line.
82 In Attorney General for British Columbia v Attorney General for Canada the Privy Council at 167 explained the general principle with respect to fishing rights as being that fisheries are in their nature mere profits of the soil over which the water flows, so that the title to a fishery arises from the right to the solum. If a fishery is severed from the solum, it becomes a profit ŕ prendre in alieno solo. The Privy Council also pointed out that that principle extended to owners of lands on the foreshore or within estuaries where the tide flows and reflows, whether owned by the Crown or by an individual. Of course, since Magna Carta, that right in respect of tidal waters on the foreshore or in rivers, streams and estuaries has not been able to be removed other than by the exercise of legislative power. In my view, in respect of the waters in rivers, streams and estuaries above the high water mark line, the Land Rights Act has removed that right so that the Land Trust, subject to the Land Rights Act, may grant interests in the nature of fishing rights in respect of those waters by reason of its ownership of the solum effected by the grant.
83 The Legislative Assembly of the Northern Territory does not have power under the Fisheries Act to authorise actions which: