Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust - [2001] FCA 98 - FCA 2001 case summary — Zoe

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Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust

[2001] FCA 98

Federal Court of Australia|2001-07-01|Before: Wells J, Merkel JJ

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Court

Federal Court of Australia

Decision date

2001-07-01

Before

Wells J, Merkel JJ

Source

Original judgment source is linked above.

Judgment (50 paragraphs)

[1]

Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ABORIGINES - grant of land pursuant to Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) - grant made to low water mark along coast and to line at low water mark joining seaward extremities of rivers, streams and estuaries - whether holder of commercial fishing licence entitled to take fish from waters overlying land by virtue of licence. PRACTICE AND PROCEDURE - appeals - primary Judge answers separate questions pursuant to Federal Court Rules, O 29 r 2 - whether sufficient facts found to enable questions to be asked - whether power on appeal to substitute amended questions - whether appropriate to do so.

[2]

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 3, 4, 5, 10, 12, 19, 21, 23, 70, 71, 72, 73, 74, Sch 1. Acts Interpretation Act 1901 (Cth), s 22(1)(c). Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth). Federal Court of Australia Act 1976 (Cth), ss 24, 28, 33C(1). Northern Territory (Self-Government) Act 1978 (Cth). Federal Court Rules, O 29 r 2. Fisheries Act 1988 (NT), ss 4, 10, 11, 22, 23, 25. Crown Lands Ordinance 1927 (NT), s 102. Crown Lands Ordinance 1931 (NT), s 103(1). Aboriginals Ordinance 1918 (NT), ss 3, 5, 19, 19AA. Welfare Ordinance 1953 (NT), s 8(e). Social Welfare Ordinance 1964 (NT), s 10(b). Aboriginals Ordinance 1937 (NT). Welfare Ordinance 1953 (NT), s 45. Social Welfare Ordinance 1964 (NT), s 6(a), 17(3). Social Welfare Ordinance 1978 (NT), s 5. Fisheries Ordinance 1965 (NT), ss 15, 16. Fish and Fisheries Act 1979 (NT), ss 5, 27, 28. Northern Territory Crown Lands Act 1890 (SA), s 6(f). A Raptis & Son v South Australia (1977) 138 CLR 346, referred to. Yarmirr v Northern Territory (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, referred to. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, referred to. Kruger v Commonwealth (1997) 190 CLR 1, referred to. Kitakoka v Commonwealth (unreported, Supreme Court of Northern Territory, Wells J, 1937), referred to. Harper v Minister for Sea Fisheries (1989) 168 CLR 314, referred to. Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, followed. DJL v Central Authority (2000) 170 ALR 659, referred to. CDJ v VAJ (1998) 197 CLR 172, referred to. Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409, followed. Classic Gourmet Sausages Pty Ltd v Leda Commercial Properties Pty Ltd (2000) 97 FCR 313, followed. White v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 511, referred to. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, referred to. CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601, referred to. Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 159, referred to.

[8]

SPENDER J: 1 I have had the benefit of reading in draft form the comprehensive reasons for judgment of Sackville J. I agree with them, and with the orders his Honour proposes. 2 There is one aspect only of those reasons in respect of which I wish to say something, and that is the power of this Full Court to permit the substitution of fresh questions for those the subject of the primary judge's orders, and the power of this Full Court to answer those fresh questions. I agree with Sackville J, for the reasons which his Honour gives, that if it be assumed that this Court has such powers, the fresh questions are not such as to make it appropriate to answer them. 3 In my opinion, a Full Court does not have power in the exercise of the appellate jurisdiction of the Court, on an appeal from the answers to stated questions given in the exercise of the original jurisdiction of the Court by a single judge, to substitute fresh questions for those the subject of the appeal, and to answer those fresh questions. So to do is not, in my opinion, an exercise of the Court's appellate function under s 24(1)(a) of the Federal Court of Australia Act 1976. 4 Section 24(1)(a) confers jurisdiction on the Court to "hear and determine appeals from judgments of the Court constituted by a single Judge". 5 Section 28, dealing with the powers of the Court on appeal relevantly provides: "28(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction - (a) affirm, reverse or vary the judgment appealed from; (b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; (c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; …" 6 To substitute fresh questions and to answer them would not be an affirmation, reversal or variation of the judgment appealed from, within s 28(1)(a). Nor, in my opinion, is the power in s 28(1)(b), namely the power to "give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order", a source of power to permit the answering of fresh questions. The power given by s 28(1)(b) can be exercised only "in the exercise of the appellate jurisdiction of the Court", which jurisdiction is relevantly, by s 24(1)(a), "to hear and determine appeals from judgments of the Court constituted by a single Judge." 7 The matter in which the Full Court is being invited to make orders is simply not the same as the matter which was the subject of the judgment of the primary judge, and from whose orders in that matter the appeal was filed. The entertaining of the fresh questions may be within the original jurisdiction of the Court; it is not within the appellate jurisdiction of the Court. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

[11]

SACKVILLE J: INDEX THE PROCEEDINGS.................................................................................................................... [8] THE GRANT................................................................................................................................ [20] "TIDAL WATERS" AND "NON-TIDAL WATERS".................................................................. [25] BACKGROUND TO THE LAND RIGHTS ACT......................................................................... [32] ENACTMENT OF THE LAND RIGHTS ACT......................................................................... [32] THE ARNHEM LAND RESERVE............................................................................................ [33] ACCESS TO THE RESERVE................................................................................................... [41] THE WOODWARD REPORT................................................................................................... [46] IMPLEMENTATION OF THE WOODWARD REPORT.......................................................... [61] THE LEGISLATION.................................................................................................................... [65] THE LAND RIGHTS ACT IN 1980.......................................................................................... [65] THE CURRENT LAND RIGHTS ACT..................................................................................... [78] FISHERIES LEGISLATION IN THE NORTHERN TERRITORY............................................. [80] THE AGREED FACTS................................................................................................................. [85] THE SEPARATE QUESTIONS................................................................................................... [92] THE JUDGMENT AT FIRST INSTANCE.................................................................................. [94] EFFECT OF THE GRANT...................................................................................................... [95] FISHING RIGHTS IN THE WATERS...................................................................................... [99] THE EXTENT OF FISHING RIGHTS IN THE WATERS...................................................... [104] THE ANSWERS TO THE SEPARATE QUESTIONS............................................................... [112] THE SUBMISSIONS................................................................................................................. [113] THE APPELLANTS' SUBMISSIONS.................................................................................... [114] THE CROSS-APPELLANTS' SUBMISSIONS....................................................................... [116] TIDAL WATERS LANDWARD AND SEAWARD OF THE HIGH WATER MARK................ [128] HOW SHOULD THE QUESTIONS BE ANSWERED?............................................................ [131] APPROPRIATENESS OF THE SEPARATE QUESTIONS................................................... [131] THE AMENDED QUESTIONS.............................................................................................. [142] THE POWER TO SUBSTITUTE THE AMENDED QUESTIONS......................................... [143] SHOULD THE AMENDED QUESTIONS BE SUBSTITUTED FOR THE SEPARATE QUESTIONS? [148] CONCLUSION......................................................................................................................... [163]

[12]

THE PROCEEDINGS 8 This case concerns, or at least was intended by the parties to concern, the entitlement of holders of commercial fishing licences in the Northern Territory to fish in tidal waters within the designated boundaries of land granted by deed to the Arnhem Land Aboriginal Land Trust ("the Arnhem Land Trust"). 9 The deed of grant to the Arnhem Land Trust ("the Grant") was made by the Governor-General on 30 May 1980, pursuant to ss 10 and 12(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"). The Grant was of an area of land comprising approximately 89,872 square kilometres. (I refer to the land the subject of the Grant as "the Land"). Significantly for the purposes of this case, the Land was described in the Grant as being above a line along the low water mark with its boundary drawn along the coast and by means of straight lines across the mouths of intersecting rivers, streams and estuaries. 10 The proceedings were commenced by the Arnhem Land Trust and the Northern Land Council ("the Land Council") by an application and statement of claim filed on 6 June 1997. The respondents to the proceedings were the Director of Fisheries (Northern Territory) ("the Director") and the Northern Territory of Australia ("the Territory"). 11 By an order made by the primary Judge on 1 October 1998, the Northern Territory Fishing Industry Council Inc (now the Northern Territory Seafood Council Inc) ("the Seafood Council") was added as a third respondent. The Seafood Council is the representative body for the commercial fishing and aquaculture industries in the Northern Territory. Its membership includes holders of licences issued by the Director under the Fisheries Act 1988 (NT) ("the Fisheries Act"). The Seafood Council was joined in the proceedings to represent its members. 12 In the proceedings at first instance, the applicants sought declarations that: "A. [The Arnhem Land Trust] as the owner in fee simple of the solum or seabed beneath the waters forming part of the land vested in the [Arnhem Land Trust] by the [Grant] and by virtue of the provisions of the [Land Rights Act] is entitled to exclude persons who enter into those waters for the purpose of taking fish or other aquatic life found in those waters or aquatic life that forms part of or are attached to or live on the solum or seabed beneath those waters under or pursuant to licences granted by [the Director] under the Fisheries Act (NT). B. [The Director] has no power or authority to issue licences under the Fisheries Act (NT) in respect of waters overlying, and the solum or seabed beneath those waters comprising Aboriginal land within the meaning of the [Land Rights Act]. C. Insofar as the Fisheries Act (NT) purports to authorise the issuing of licences in respect of waters overlying, and the solum or seabed beneath, those waters comprising Aboriginal land within the meaning of the [Land Rights Act] the application of the Fisheries Act (NT), is to that extent invalid." 13 The applicants also sought an order restraining the Director from issuing: "further licences pursuant to the Fisheries Act (NT) in respect of waters overlying, and the solum or seabed beneath the waters comprising Aboriginal land within the meaning of the [Land Rights Act]". 14 An order was made for the separate determination of a series of questions before trial ("the Separate Questions"). This course was adopted after the parties had prepared a statement of agreed facts ("the Agreed Facts") designed to facilitate consideration of the Separate Questions. 15 The primary Judge delivered a judgment on 24 February 2000, in which he proposed answers to the Separate Questions: Arnhem Land Aboriginal Land Trust v Director of Fisheries (Northern Territory) (2000) 170 ALR 1. In substance, his Honour held that commercial licence holders under the Fisheries Act were entitled to exercise the common law public right to fish, in accordance with their various licences, in waters subject to tidal influences seaward of the mean high water mark drawn along the coast and across the mouths of intersecting rivers, streams and estuaries. His Honour also held that the public right to fish in waters subject to tidal influences landward of the mean high water mark so drawn had been abrogated by the Land Rights Act and the Grant. The answers given by his Honour to the Questions were subject to certain reservations and qualifications, but reflected his conclusions as to the extent to which the public right to fish had survived the Land Rights Act and the Grant. His Honour granted leave to any party to appeal from any part of the answers to the Separate Questions. 16 The Director and the Territory appealed pursuant to the leave granted by the primary Judge, against certain of the answers to the Separate Questions. (I refer to the Director and the Territory together as "the appellants".) In substance, the appellants sought answers to the effect that holders of licences under the Fisheries Act were entitled to exercise the public right to fish in all tidal waters within the boundaries of the Grant, subject to the terms of the licence and the provisions of the Fisheries Act. 17 The Arnhem Land Trust and the Land Council, pursuant to the same leave, cross-appealed against other answers given by the primary Judge to the Separate Questions. (I refer to the Arnhem Land Trust and the Land Council together as "the cross-appellants".) In substance, the cross-appellants sought answers to the effect that the holders of licences under the Fisheries Act were not entitled to take fish in or enter upon any of the tidal waters within the boundaries of the Land described in the Grant. 18 The Seafood Council neither appealed nor cross-appealed. It was, however, named as a party both to the appeal and the cross-appeal. It filed submissions adopting and relying on the contentions of the appellants. 19 As is often the case when parties endeavour to identify questions for determination in advance of the Court making findings of fact, there are difficulties with the Separate Questions identified in the present case. I shall return to these difficulties later.

[13]

the grant 20 Since the terms of the Grant are central to an understanding of the issues the parties sought to raise by means of the Separate Questions, it is convenient to refer to the Grant here. 21 The Grant recited that the Arnhem Land Trust had been established pursuant to s 4 of the Land Rights Act and that the Minister for Aboriginal Affairs had recommended to the Governor-General "that a grant of an estate in fee simple in the land described hereunder" be made to the Land Trust. 22 The operative provisions of the Grant were as follows: "NOW THEREFORE I, SIR ZELMAN COWEN … Governor-General of the Commonwealth of Australia … acting in accordance with the said recommendation, DO HEREBY GRANT to the [Arnhem Land Trust] an Estate in Fee Simple subject to the provisions of the [Land Rights Act] and subject to the conditions reservations and exceptions hereinafter contained in ALL THAT land in the Northern Territory of Australia above a line along the low water mark with its boundary along the seacoast of the Van Diemen Gulf, the Arafura Sea and the Gulf of Carpentaria, but excluding from the said line those parts along the low water marks of all intersecting rivers, streams and estuaries inland from a straight line joining the seaward extremity of each of the opposite banks of each of the said rivers, streams and estuaries so that the aforesaid boundary line shall follow that part below low water mark of each of the aforesaid straight lines across each of the aforesaid rivers, streams and estuaries … being more particularly shown on Compiled Plan 4181 … AND I HEREBY RESERVE AND EXCEPT to the Commonwealth of Australia the right to any minerals existing in their natural condition … , on or below the surface of the said land, being minerals all interests in which are vested in the Commonwealth of Australia … AND I HEREBY RESERVE AND EXCEPT to the Northern Territory of Australia the right to any minerals existing in their natural condition …, on or below the surface of the said land, being minerals all interests in which are vested in the Northern Territory of Australia". The Grant contained some additional exclusions, reservations and exceptions, for example in relation to public roads. It is not necessary to set these out. 23 The boundaries of the Land corresponded to those of "Arnhem Land (Mainland)" described in Part 1 of Schedule 1 to the Land Rights Act. These in turn corresponded to the boundaries of the mainland areas of Arnhem Land Reserve created in 1963 by the amalgamation of several reserves created earlier. A separate deed of grant executed on the same day (30 May 1980) granted to the Arnhem Land Trust an estate in fee simple in islands adjacent to the mainland. While some of the islands had previously formed part of the Arnhem Land Reserve, these proceedings are not concerned with the effect of the separate deed of grant relating to them. (see [30]-[31] below). 24 The Grant is qualified by the words "ALL THAT land in the Northern Territory". The argument on the appeal and cross-appeal was conducted on the basis that the Land is within the limits of the Northern Territory as determined in accordance with the principles laid down in A Raptis & Son v South Australia (1977) 138 CLR 346; see also Yarmirr v Northern Territory (1998) 82 FCR 533, at 551-558, per Olney J; Commonwealth v Yarmirr (1999) 168 ALR 426, at 449, 452-457, per Beaumont and von Doussa JJ.

[14]

"tidal waters" and "non-tidal waters" 25 It will be seen that the Grant described the boundaries of the Land by reference to a line following the low water mark along the seacoast. That line, however, was to be drawn so as to exclude the low water marks of all intersecting rivers, streams and estuaries inland. This exclusion was to be achieved by drawing a straight line joining the seaward extremity of each of the opposite banks of each of the rivers streams and estuaries. The effect, as the primary Judge noted (at 20) was that the Grant included the beds of rivers, streams and estuaries above their mouths, as fixed by a line across the low water mark of their extremities. 26 In the Agreed Facts, to which further reference is made later, the parties identified and defined two categories of "waters" within the boundaries of the Land. The first category, which the parties referred to as "tidal waters", comprises the waters overlying land on the landward side of the low water mark identified in the Grant, being land which is exposed at low tide. Generally speaking, these waters overlie the zone between the low and high water marks and have been described elsewhere as the "inter-tidal zone": Yarmirr v Northern Territory at 546, per Olney J. 27 The second category, which the parties inaccurately designated as "non-tidal waters", was defined to mean the waters landward of the straight lines joining the seaward extremities of each of the rivers, streams and estuaries as referred to in the Grant, the beds of which are not exposed by any tide but which waters are otherwise affected by tides of the sea. The so-called non-tidal waters thus comprise waters in rivers, streams and estuaries, which are affected by the tides of the sea, even though the beds are not exposed at low tide. 28 The primary Judge, for the purpose of answering the Separate Questions, redefined the terms "tidal waters" and "non-tidal waters". The amended definitions adopted by his Honour, with the consent of the parties, are as follows: "'Tidal Waters'means the waters overlying land subject to [the Grant] seaward of the mean high water mark along the seacoast of the land described in [the Grant] and seaward of the straight lines drawn joining the seaward extremity at mean high water of each of the opposite banks of each of the intersecting rivers, streams and estuaries on the land described in [the Grant] ('the mean high water mark line'). 'Non-Tidal Waters' means the waters overlying the land subject to [the Grant] landward of the mean high water mark line and which are affected by the tides of the sea." 29 The primary Judge did not amend the definitions because he formed the view that the expression "non-tidal waters" is inappropriate to describe waters in fact subject to tidal influences. Indeed, he retained the expression to describe waters landward of the high water mark and which are affected by the tides of the sea. His Honour amended the definitions because, as will be seen, his reasoning required a distinction to be drawn between two categories of waters affected by tidal influences. The first comprises tidal waters seaward of both the mean high water mark along the coast and the straight lines drawn from seaward extremities at mean high water of the opposite banks of intersecting rivers, streams and estuaries. The second comprises waters affected by tides but which are landward of the high water mark and the straight lines so drawn. 30 As the cross-appellants' submissions to this Court pointed out, both categories of waters identified by the primary Judge are affected by tidal movements. The first category, the so-called "Tidal Waters", can more accurately be described as "tidal waters seaward of the mean high water mark line". The second category, the so-called "Non-Tidal Waters", can more accurately be described as "tidal waters landward of the mean high water mark line". 31 I shall use the expression "Waters" to embrace both categories of waters identified by the primary Judge.

[16]

THE ARNHEM LAND RESERVE 33 The history of the Arnhem Land Reserve until 1963 is summarised in the Report of the Select Committee of the House of Representatives, Grievances of Yirrkala Aborigines, Arnhem Land Reserve (1963) ("Yirrkala Report"). This Committee was established in response to a petition from the Aboriginal people of Yirrkala, seeking a hearing in relation to the proposed excision of land from the Arnhem Land Reserve for mining purposes. 34 The first important event occurred on 14 April 1920, when an area of about 2,000 square miles was proclaimed as the Oenpelli Reserve. The proclamation was made under s 6(f) of the Northern Territory Crown Lands Act 1890 (SA) (an Act of South Australia which continued in force in the Northern Territory). 35 On 14 April 1931, a much larger area, comprising approximately 31,200 square miles, was proclaimed as the Arnhem Land Reserve. This proclamation was made pursuant to s 102(1)(c) of the Crown Lands Ordinance 1927 (NT), which authorised the reservation of unalienated Crown lands "for the use and benefit of the aboriginal native inhabitants of North Australia". The schedule to the proclamation described the Arnhem Land Reserve as bounded by the "coastline". The proclamation made no reference to high or low water marks. 36 On 8 October 1940, an area of some 2,500 square miles adjoining the southern boundary of the Arnhem Land Reserve was proclaimed as the Extension of the Southern Portion of Arnhem Land Reserve. The extension was proclaimed under the Crown Lands Ordinance 1931 (NT)("Crown Lands Ordinance 1931"),s 103(1)(c). 37 On 17 December 1940, the Darch and Croker Islands Reserve was proclaimed. This proclamation included Darch and Croker Islands and other islands adjacent to the coast north of the Coburg Peninsula. 38 The proclamations creating the four reserves were revoked by a proclamation made on 28 October 1963, pursuant to the Crown Lands Ordinance 1931, s 103(1)(e). On the same day, however, a fresh proclamation was made under the Crown Lands Ordinance 1931 reserving the lands within the previous mainland reserve "for the use and benefit of wards as defined under section 6 of the Welfare Ordinance 1953-1963". The proclamation also covered the Darch and Croker Islands Reserve. All four areas were included within the one Reserve, to be known as the Arnhem Land Reserve. The consolidated mainland area was described in Part I of Schedule 1 to the proclamation, while the former Darch and Croker Islands Reserve was described in Part II of Schedule 1. 39 It appears that these measures were taken in consequence of the activities of the Committee responsible for the Yirrkala Report, which was presented to Parliament on 29 October 1963, the day after the proclamations were made. Although the Yirrkala Report did not recommend the making of a fresh proclamation, its inquiries appear to have cast doubt on the validity of the earlier proclamations. 40 The description of the consolidated Arnhem Land Reserve in the 1963 proclamation differed from that found in the earlier proclamations. In particular, the boundaries of the lands within the Reserve were identified by reference to the low water marks of various rivers and of the Timor or Arafura Seas. As with the Grant in 1980, the description of the reserved lands employed straight lines joining the extremities of the banks of rivers, streams and estuaries.

[17]

ACCESS TO THE RESERVE 41 Over time, a series of ordinances has governed access to Aboriginal reserves in the Northern Territory. The earliest was the Aboriginals Ordinance 1918 (NT) ("Aboriginals Ordinance"), the terms of which were discussed in Kruger v Commonwealth (1997) 190 CLR 1, esp at 49-53, per Dawson J; at 74-76, per Toohey J. The Aboriginals Ordinance required the Chief Protector of Aboriginals (later the Director of Welfare and the Director of Local Welfare) "to manage and regulate the use of all reserves for aboriginal people": s 5(1)(e); see also Welfare Ordinance 1953 (NT), s 8(e); Social Welfare Ordinance 1964 (NT), s 10(b). The Aboriginals Ordinance also made it an offence for an authorised person, other than certain officials, police officers and aboriginals, to enter or remain on a reserve (defined to mean a reserve declared by the Administrator for the purposes of the Ordinance): see ss 3, 19. In its original form, the Ordinance said nothing about entry into waters on or near an Aboriginal reserve. The Yirrkala Report, however, noted (par 26) that "[h]aving proclaimed the Arnhem Land Reserve, the Government considered that the fact that the Aboriginal Ordinance…provided that persons should not enter the reserves without permission indicated that it was the intention of the Ordinance to ensure that reserves should be used solely by Aborigines." 42 A new provision, s 19AA, was introduced into the Aboriginals Ordinance by the Aboriginals Ordinance 1937 (NT). The provision was designed to control the activities of Japanese pearling operators but can be seen as a forerunner to the concept of a "buffer zone" ultimately embodied in a different form in s 73(1)(d) of the Land Rights Act. Section 19AA made it an offence for any unauthorised person, other than a police officer or an aboriginal, to enter in a vessel "the territorial waters adjacent to a reserve for aboriginals". In Kitakoka v The Commonwealth (unreported, Sup Ct NT, 1937), Wells J construed the expression "territorial waters" in s 19AA as referring, inter alia, to a marginal belt of water extending seawards from the low water mark at mean spring time to a distance of three miles, following the sinuosities of the shoreline. The case is discussed by R W Edeson, "Foreign Fishermen in the Territorial Waters of the Northern Territory, 1937" (1976) 9 Fed LR 202; see also Commonwealth v Yarmirr, at 456-457, per Beaumont and von Doussa JJ. 43 The Aboriginals Ordinance was repealed by the Welfare Ordinance 1953 (NT) ("Welfare Ordinance"). No equivalent to s 19AA of the Aboriginals Ordinance was included in the Welfare Ordinance, and the concept of a buffer zone over territorial waters was not retained. Section 45 of the Welfare Ordinance, however, imposed restrictions on unauthorised persons, other than "wards" or relatives of wards, entering or remaining on a reserve. 44 The Welfare Ordinance was itself repealed by the Social Welfare Ordinance 1964 (NT) ("Social Welfare Ordinance"). This maintained the system of restrictions on entry into reserves, although no provision was made restricting entry into waters adjacent to reserves. The Social Welfare Ordinance defined "reserve" to include "land…proclaimed or declared…to be reserved for the use and benefit of the aboriginal inhabitants of the Territory" (s 6(a)). 45 Section 17(3) of the Social Welfare Ordinance, within Part 4 of the Ordinance,continued the prohibition on any unauthorised person, other than aboriginals, police officers and certain other officials, entering or remaining on a reserve. The exceptions included the following: "(e) it is necessary for the protection of life or property that he enter or remain on the Reserve; … (h) he is authorized by a law of the Territory to enter and remain on the Reserve." Part 4 of the Social Welfare Ordinance ceased to apply to reserves granted as Aboriginal land under the Land Rights Act, and was replaced by the provisions in Part 7 of that Act.

[18]

THE WOODWARD REPORT 46 In February 1973, Mr Justice A E Woodward received a Commission requiring him to inquire into and report upon the following: "The appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to land, and to satisfy in other ways the reasonable aspirations of the Aborigines to rights in or in relation to land, and, in particular… (a) arrangements for vesting title to land in the Northern Territory of Australia now reserved for the use and benefit of the Aboriginal inhabitants of that Territory, including rights in minerals and timber, in an appropriate body or bodies, and for granting rights in or in relation to that land to the Aboriginal groups or communities concerned with that land; …". At that time, the status of the Arnhem Land Reserve was governed by the 1963 proclamation and access to the reserve was controlled by the provisions of the Social Welfare Ordinance. 47 The Commissioner prepared two reports: Aboriginal Land Rights Commission, First Report (Parliamentary Paper No 138, July 1973) ("First Report"); and the Second Report, to which reference has already been made. The recommendations in the Second Report, although not precisely implemented in the Land Rights Act, formed the basis for that legislation. 48 The cross-appellants relied on the Second Report to support their construction of the Land Rights Act. It should be noted, however, that the Second Report is relatively brief, reflecting the Commissioner's considered views as to the most effective means of presenting his conclusions. Because of its brevity, the Second Report did not (and doubtless was not intended to) address complex legal issues in detail. Nonetheless, the Second Report did refer to some issues important to the argument on the appeal and cross-appeal. 49 The Second Report identified the aims underlying the recognition of land rights for Aborigines. These included the following (at par 3): "(i) the doing of simple justice to a people who have been deprived of their land without their consent and without compensation, (ii) the promotion of social harmony and stability within the wider Australian community…, (iii) the provision of land holdings as a first essential for people who are economically depressed, and who have at present no real opportunity of achieving a normal Australian standard of living, (iv) the preservation, where possible, of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart of his spiritual beliefs…". 50 The Second Report referred briefly to the history of Aboriginal reserves in the Northern Territory. It pointed out (par 68) that there had been a complicated history of proclamations, revocations, fresh proclamations and the like. The Commissioner commented, however, that there was no point in exploring these problems. Perhaps optimistically, he suggested that (par 68): "[p]rovided aborigines are finally given title to land described by geographical boundaries and not by past history, no difficulties should arise". 51 The Second Report pointed out that the terms of reference of the Commission had made it clear that the Government wished to vest title to Aboriginal reserves in appropriate bodies. The difficulty was to decide the best way of going about this task, so as to reflect Aboriginal laws and customs in a landholding system adapted to modern requirements. The Commissioner expressed his view as to the appropriate form of title as follows (par 70): "I have no doubt about the nature of the title which should be granted…. I regard any form of leasehold title as inadequate to satisfy either the announced intentions of the Government or the expectation of Aborigines. I am conscious of the fact that there is a general trend in the community towards leasehold rather than freehold titles, but I accept…that any form of leasehold title would simply not be acceptable to Aborigines 'as a satisfactory or proper solution to their aspirations' in the case of reserve lands". 52 The Commissioner recommended that the title to be granted should be "communal and inalienable" (par 71). Although he had suggested in the First Report that it might be appropriate to create a new form of statutory title, to be known as "Aboriginal Title", he expressed the view in the Second Report (par 72): "that it is necessary to tread wearily here. It is pointed out that if the title is expressed as being in fee simple, all the normal incidents of such title would be known. This would resolve any doubts about the applicability of the general law and facilitate any future dealing with the land, which may not be envisaged at present, but which could be contemplated by later generations." (Emphasis added.) 53 Later in the Second Report, the Commissioner recommended that all land then comprised in Aboriginal reserves, subject to exceptions, should be vested by a proclamation under proposed legislation in incorporated trusts. A table in the Second Report listed each reserve and identified the relevant "Proposed Land Trust" and "Trustee Nominator". In the case of the Arnhem Land Reserve, the table identified, respectively, the Arnhem Land Trust and the Northern Land Council to perform these roles. The Commissioner continued (par 91): "The proclamation should describe the reserves by their boundaries because in some cases there are doubts about the validity of past reservations or revocations. For reasons which are set out below (paras. 422-5), it is recommended that the definition of Aboriginal land where a coastline is involved should include both off-shore islands and waters within two kilometres of the low tide line…". 54 The Second Report contemplated (par 95) that trustees would hold Aboriginal land for the benefit of those having traditional rights to it. Provision was to be made for the preservation of traditional rights and the granting of leases, licences and permits to Aborigines, Aboriginal corporations, missions and governments (par 97). Non-aboriginal persons were normally to be able to obtain leases, licences or permits over Aboriginal land for tourism purposes or for the recovery of minerals or petroleum (par 97). In special circumstances leases or licences could be granted for other purposes, but subject to the consent both of the regional Land Council and the Minister (par 99). 55 The Commissioner then addressed the nature of the title he envisaged would be created under the proposed legislation: "101. I believe it would be convenient to refer to the system resulting from such provisions as 'Aboriginal title' but it would be merely fee simple subject to certain statutory qualifications. (Emphasis added.) 102. It has been conceded by both Land Councils, and I entirely agree, that Aboriginal land should generally be subject to the normal provisions of the law relating to freehold Land. Those provisions having general application, and dealing, for example, with questions of health or soil erosion or fire protection or straying cattle, would apply to Aboriginal land. Because of the general prevalence of leasehold title in the Territory it may be that some laws of general application are not expressed in such a way as to apply to freehold land. If this is so, then some convenient legislative method to make them applicable to Aboriginal titles would have to be found." 56 Paragraphs 422-425 of the Second Report, referred to in the paragraph of the Report quoted at [46] above, are in the section headed "Fisheries". The Commissioner commenced that section with the following observation (par 420): "Although there has been some doubt about the legal position in the past, the estuaries and tidal flats of Northern Territory Aboriginal reserves have been generally regarded as being part of the reserves and therefore out-of-bounds to commercial fishermen. The Commissioner noted that the Northern Land Council had asked that this principle be recognised and extended so that an area stretching twelve miles out to sea should be treated as part of Aboriginal land for the purposes of protection of land rights. He observed (par 421) that the claim to the sea "would be relevant both to fishing and off-shore exploration for petroleum or minerals". 57 The Commissioner accepted that Aborigines had made traditional claims to most, if not all off-shore islands. He also accepted that Aborigines regarded estuaries, bays and waters immediately adjacent to the shore line as being part of their land (par 422). He was, however, unable to endorse a claim to an area of the sea as great as twelve miles from the sea. Rather, he approached the question in the following way: "423. … It seems to me that the legitimate interest of Aborigines will be protected if their traditional fishing rights are preserved and their right to the privacy of their land is clearly recognised by the establishment of a buffer zone of sea which cannot legally be entered by commercial fishermen or holidaymakers. An exception would have to be made in cases of emergency. 424. To establish these principles some arbitrary figure has to be arrived at, which I have already suggested (para. 91) might be two kilometres from low tide. Since all the fishing is done by netting or the use of hand-lines in comparatively shallow water, this should suffice for both the purposes to which I have referred." 58 The Commissioner noted that Aborigines had access to technology which increased their fishing capacity to the point where their activities could damage stocks. He observed that the Northern Land Council had not requested any exemption from laws designed to protect stocks of fish. The Commissioner considered (par 427) that any rules concerning the size of nets or similar restrictions would apply to Aborigines. 59 The Commissioner then considered, but rejected, the "possibility of Aboriginal landowners being able to license commercial fishermen to use their waters" (par 429). While this option appeared attractive at first sight, it had not been sought by Aboriginal interests and the Commissioner could foresee (par 430): "…the possibility that if the existing reservation of these waters for Aborigines were once breached, it might prove politically difficult to regain when Aborigines were better equipped to compete themselves. The lesson of history is that any privileges which Aborigines have should not lightly be put aside or reduced." 60 The Second Report devoted a section (pars 109-122) to control of access to Aboriginal land. The Commissioner accepted (par 109) that "[o]ne of the most important proofs of genuine Aboriginal ownership of land will be the right to exclude from it those who are not welcome". The Second Report proposed a permit system to be administered by Land Councils, but provided for cases where people had "some over-riding claim to enter Aboriginal land" (par 111). Such cases included police officers and government officials in the execution of their duties, as well as parliamentarians, judges and magistrates (par 112).

[21]

The Land Rights Act in 1980 65 The argument on the appeal did not always distinguish between the Land Rights Act in its present form and as it stood in 1980. The following account of the Land Rights Act is of the legislation as it stood when the Grant was executed on 30 May 1980. I shall refer later to amendments insofar as they are material to the present case. 66 The long title of the Land Rights Act was: "An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes". 67 The Land Rights Act empowered the Minister to 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 and occupation of the land concerned: s 4(1). The Minister was, however, required to establish Land Trusts to hold the Crown land described in Schedule 1 to the Act: s 4(1). "Crown Land" was defined in s 3, relevantly, to mean "land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple in the land…." 68 Schedule 1 to the Land Rights Act included an area of land described as "Arnhem Land (Mainland)". Although the description of the land in Schedule 1 was not identical to the description of the land subject to the Grant, the parties agreed that the boundaries of the land described in Schedule 1 to the Land Rights Act corresponded to those of the Land described in the Grant. The description on Schedule 1 incorporated the references to low water marks along the seacoast, excluding intersecting rivers, streams and estuaries. 69 The functions of a Land Trust were to include holding title to land vested in it in accordance with the Land Rights Act and to exercise its powers as owner of land "for the benefit of the Aboriginals concerned": s 5(1)(a), (b). A Land Trust was not to exercise its functions in relation to land held by it except in accordance with a direction given by the Land Council for the relevant area: s 5(2)(a). 70 The Land Rights Act provided for the establishment of Land Councils for particular areas of the Northern Territory: s 21(1). The functions of Land Councils were to include protecting the interests of traditional Aboriginal owners of "Aboriginal land" in the area of the Land Council (s 23(1)(b)) and negotiating on behalf of such owners with persons desiring to use, occupy or obtain an interest in the land (s 23(1)(e)). Land Councils were empowered, with the consent of the Minister, to perform any function conferred on them by a law of the Territory, including functions in relating to Aboriginal land: s 23(2). In carrying out their functions with respect to Aboriginal land, Land Councils were to have regard to the interests of, and to consult with, the "traditional Aboriginal owners (if any)" of the land: s 23(3). 71 The expression "Aboriginal land" was defined in s 3(1) relevantly, to mean "land held by a Land Trust for an estate in fee simple". The term "traditional Aboriginal owners", in relation to land, was defined to mean "a local descent group of Aboriginals who: (a) have 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; and (b) are entitled by Aboriginal tradition to forage as of right over that land." 72 The Land Rights Act itself did not define "land". However, s 22(1)(c) of the Acts Interpretation Act 1901 (Cth) provides that in any Act, unless the contrary intention appears "'Land' shall include messuages tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein." 73 Section 10(1) of the Land Rights Act provided that where a Land Trust had been established in respect of an area of land described in Schedule 1, the Minister was to recommend to the Governor-General "that a grant of an estate in fee simple in that land…be made to that Land Trust". Section 12 described the manner in which a recommendation was to be implemented: "(1) Subject to this section, on the receipt of a recommendation under section 10 or 11 with respect to land, the Governor-General may: (a) in the case of a recommendation under subsection 10(1)…execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the grantee; … (2) A deed of grant under this section shall be expressed to be subject to the reservation that: (a) the right to any minerals existing in their natural condition…on or below the surface of the land, being minerals all interests in which are vested in the Commonwealth, remains with the Commonwealth; and (b) the right to any minerals existing in their natural condition…on or below the surface of the land, being minerals all interests in which are vested in the Northern Territory, remains with the Northern Territory…. … (4) A deed of grant under this section takes effect: (a) where a deed is delivered by the Governor-General to the grantee - on the date on which it is so delivered…". 74 Section 19 of the Land Rights Act imposed constraints on the power of the Land Trusts to deal with interests in land vested in them. Section 19(1) prohibited a Land Trust from dealing with or disposing of any estate or interest in land vested in it, except in accordance with the Land Rights Act itself. The exceptions included an express power in the Land Trust, at the direction in writing of the relevant Land Council, to grant a lease or licence in respect of land vested in it in favour of certain Aboriginal persons or for certain Aboriginal community purposes: s 19(2). The Land Trust was also empowered, with the consent of the Minister and at the direction in writing of the relevant Land Council, to "grant a lease or licence in respect of the whole, or any part of, the land vested in it to any persons for any purpose". (s 19(4)(a)). Section 19(5) provided as follows: (5) A Land Council shall not give a direction under this section for the grant, transfer or surrender of an estate or interest in land unless the Land Council is satisfied that - (a) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed grant, transfer or surrender and, as a group, consent to it; (b) any Aboriginal community or group that may be affected by the proposed grant, transfer or surrender has been consulted and has had adequate opportunity to express its view to the Land Council; and (c) in the case of a proposed grant of a lease or licence - the terms and conditions of that lease or licence are reasonable." 75 Part 7 of the Land Rights Act contained a number of provisions concerning entry on or use of Aboriginal land and the legislative powers of the Territory: "Entry on Aboriginal land 70(1) Except in the performance of functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory, a person shall not enter or remain on Aboriginal land. Penalty: $1,000. (2) Where a person, other than a Land Trust, has an estate or interest in Aboriginal land - (a) a person is entitled to enter and remain on the land for any purpose that is necessary for the use or enjoyment of that estate or interest by the owner of the estate or interest; and (b) …. Traditional rights to use or occupation of Aboriginal land 71(1) Subject to this section, 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, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor. (2) Sub-section (1) does not authorise an entry, use or occupation that would interfere with the use or enjoyment of an estate or interest in the land held by a person not being a Land Trust or an Aboriginal Council or other incorporated association of Aboriginals. Aboriginal land to continue to be reserve under Northern Territory law 72(1) Where land constituting, or forming part of, an Aboriginal reserve is vested in a Land Trust under this Act, that vesting does not, except as otherwise provided by the regulations, affect the status of that land as such Aboriginal reserve. (2) …. Reciprocal legislation of the Northern Territory 73(1) The power of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 in relation to the making of laws extends to the making of- (a) …; (b) laws regulating or authorizing the entry of persons on Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition; (c) laws providing for the protection or conservation of, or making other provision with respect to, wildlife in the Northern Territory, including wildlife on Aboriginal land, and, in particular, laws providing for schemes of management of wildlife on Aboriginal land, being schemes that are to be formulated in consultation with the Aboriginals using the land to which the scheme applies, but so that any such laws shall provide for the right of Aboriginals to utilise wildlife resources; and (d) laws regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition, but any such law has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular, with this Act…. Application of laws of Northern Territory to Aboriginal land 74. This Act does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that that law is capable of operating concurrently with this Act." 76 Sections 71(1) and 73(1)(b) and (d) use the expression "Aboriginal tradition". Section 3(1) defined this expression as follows: "'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." 77 It should be noted that, although the Land continued to have the status of an Aboriginal reserve by virtue of s 72(1) of the Land Rights Act, the provisions which previously controlled access to Aboriginal reserves (Part 4 of the Social Welfare Ordinance:see [37]-[38] above) were replaced by those in the Land Rights Act: see Social Welfare Ordinance 1978 (NT), inserting s 16A in the Social Welfare Ordinance.

[24]

FISHERIES LEGISLATION IN THE NORTHERN TERRITORY 80 The provisions of the Land Rights Act, other than s 70, came into force on 26 January 1977. (Section 70 came into operation on 1 February 1979). At that time, the Fisheries Ordinance 1965 (NT) ("Fisheries Ordinance") regulated fishing in the Northern Territory. The Fisheries Ordinance included a prohibition on the taking of fish for a "trading, commercial or manufacturing purpose" except pursuant to a licence: s 15, 16. 81 By the time the Grant was executed on 30 May 1980, the Fisheries Ordinance had been replaced by the Fish and Fisheries Act 1979 (NT) ("Fisheries Act 1979"), which commenced on 25 January 1980. This Act prohibited the taking of fish for sale or commercial purposes otherwise than in accordance with a licence: s 28(1). The Fisheries Act 1979 also regulated the activities of "amateur fisherm[e]n", defined to mean persons "taking fish otherwise than for sale or commercial purposes": ss 5, 27(1). 82 The current statutory regime governing fishing in the Northern Territory is created by the Fisheries Act 1988 (NT) ("Fisheries Act"), which came into force on 14 December 1988. The key provision in the Fisheries Act is as follows: "10. Taking, &c., fish, &c., without licence (1) Subject to this Act or to an instrument of a legislative or administrative character made under it, a person shall not - (a) take any fish or aquatic life; (b) …; (c) …; (d) sell live aquatic life, live fish, or any live eggs, fry, spat, or larva of fish; [or] (da) …; (e) take any other action where the action is prescribed as being able to be taken only by the holder of a licence, unless the person does so under and in accordance with a licence. (2) Nothing in this section shall apply to the taking of fish or aquatic life by a person for subsistence or personal use only (and not for the purposes of sale), within such limits (if any) relating to numbers, quantity, size, weight, methods, types and amounts of fishing gear, and periods of time (including closed and open seasons), as may be prescribed for any such fish or aquatic life. 11. Licences (1) Subject to this Act, every person who proposes to do any thing specified in section 10(1) shall apply to the Director for an appropriate licence. … (6) Where the Director is satisfied that, in relation to the application, the applicant complies with this Act or an instrument of a legislative or administrative character made under it and the applicant is not otherwise barred from holding a licence, the Director shall grant the appropriate licence." 83 The Fisheries Act includes the following definitions (s 4(1)): "'aquatic life' means any species of plant or animal life (except species of birds) which, at any time of the life history of the species, must inhabit water, and includes the plant or animal at any stage of its life history…, but does not include fish, or aquatic life declared by the Minister by notice in the Gazette to be aquatic life to which this Act does not apply. 'fish' means any species or class of fish including crustaceans, echinoderms, and molluscs, and includes an aquatic animal (except a species of bird) declared by the Minister by notice in the Gazette to be a fish for the purposes of this Act…. 'fishery' means one or more stocks or parts of stocks or one or more species, habitats, or locations of fish or aquatic life that can be treated as a unit for the purposes of conservation or management, and includes a fishery referred to by the identifiers specified in subsection (2)." Section 4(2) provides as follows: "Without limiting the matters by reference to which a fishery (including a fishery subject to an arrangement) may be identified, those matters may include - (a) a description of fish or aquatic life by reference to sex, size, age, or another characteristic; (b) an area of waters or seabed; (c) a method of fishing; (d) a kind or class of vessel; (e) a class of persons; or (f) a purpose of activities, or all or a combination of those matters." 84 Section 22 of the Fisheries Act empowers the Minister to declare an area, place or waters to be a "fishery management area" and to declare a fishery to be a "managed fishery". When any such declaration is made, the Director must prepare a proposed management plan for the management area or fishery: s 23. Provision is made for the Minister, after considering submissions, to approve the management plan: s 25.

[25]

THE AGREED FACTS 85 The following is drawn from the Agreed Facts. 86 The Arnhem Land Trust is an Aboriginal Land Trust established under s 4 of the Land Rights Act. The Northern Land Council is an Aboriginal Land Council established under the Land Rights Act. The Director is an office established by the Fisheries Act. The holder of that office is responsible, inter alia, for the issuing of licences to person to fish in the waters of the Northern Territory granted under and pursuant to the Fisheries Act. 87 On or about 30 May 1980, the Governor-General, on behalf of the Commonwealth, executed the Grant, thereby conveying to and vesting in the Arnhem Land Trust a fee simple estate in the Land. Pursuant to s 12(4) of the Land Rights Act, the Grant took effect of the date on which it was delivered. By and subject to the terms of the Grant and Land Rights Act, the Arnhem Land Trust is the holder of the fee simple estate in the Land for the purposes of the Land Rights Act. The Land is within the definition of "Aboriginal land" for the purposes of the Land Rights Act and is also within the area of the Northern Land Council. 88 According to the Agreed Facts, it is to be assumed, for the purposes of determining the Questions "that the ordinary use of the land by the Aboriginals for whom the [Arnhem Land Trust] hold title to the land includes passing over and through the land and the waters and taking fish and other aquatic life from the land and the waters". The statement of Agreed Facts defines the expression "waters" to comprise the "tidal waters" and the "non-tidal waters". As already explained (see [19]-[24] above), these terms are also defined in the Agreed Facts, although the definitions were amended by the primary Judge. The terms "fish" and "aquatic life", as used in the Agreed Facts, have the same meaning as in the Fisheries Act. 89 The Director issues licences to persons authorising them to take fish and other aquatic life in accordance with the Fisheries Act, the Fisheries Regulations and any relevant Management Plans. The licences are said to be divided into categories each of which will: "· either entitle the licence holder to take a particular species of fish or other aquatic life or will prohibit the licence holder from taking particular species of fish or other aquatic life; · authorise the use of particular gear and, in some cases, prohibit the use of particular gear; · and in some cases, prescribe how permissible gear shall be used." 90 The Agreed Facts includes the following statements: "14. Depending on the class of licence and the terms thereof, those licences authorise the taking of fish and other aquatic life from the waters. Particulars of these licences are contained in the Schedule hereto. All licences expire on 30 June in any one year but are renewable at anytime until 31 December of that year upon payment of the prescribed fee. 15. It is assumed only for the purposes of determining the Separate Agreed Questions that licensees do take fish and other aquatic life under and in accordance with those licences from the waters. 16. The manner of taking fish and other aquatic life under a licence issued under the Fisheries Act is subject to the provisions of the Fisheries Act, the Fisheries Regulations and any relevant Management Plan. Licence holders are otherwise subject to the laws of the Northern Territory of Australia and of the Commonwealth of Australia." The Agreed Facts set out in a schedule particulars of the various licences issued under the Fisheries Act. The following table consists of extracts from the schedule and does not cover all categories of licences: Type Category Governing Regulation or Management Plan Number Issued (19/08/98) Number Renewed (19/08/98) Area Gear Permitted/ (as defined in Regulation 4 unless otherwise indicated) Prohibited Fish or Aquatic Life A1 Coastal Line Division 1, Part 8 Regulations 70 63 Relevantly, an area extending seaward from the high water mark to an imaginary line following the coastline 2 nautical miles from the low water mark. Vertical line; cast net; scoop net; gaff (not defined). May not take Barramundi, Threadfin Salmon, Spanish Mackerel or Mud Crab. A4 Spanish Mackerel Division 4, Part 8 Regulations and Spanish Mackerel Fishery Management Plan 22 21 From the outer limit of the Australian Fishing Zone to the coast or a river mouth. Troll line and floating handline (both as defined in clause 4 of Management Plan); rod (not defined) and line; restricted bait net (to be used in accordance with clause 9 of the Management Plan and Regulation 41). May not take Barramundi, Threadfin Salmon or Mud Crab. A7 Barramundi Division 7, Part 8 Regulations and Barramundi Fishery Management 27 26 Must fish in the area seaward of the coast or a river mouth but not seawards of an imaginary line 3 nautical miles from the shore at mean low-water mark and parallel to the shore or to any river mouth. Gill net (refer to clauses 11 to 16 inclusive of the Management Plan) but may not use a fish trap or a device designed to act as a trap or which may act as a trap, or a pot, including a dilly pot and a crab pot. May not take Mud Crab. A8 Mud Crab Division 8, Part 8 Regulations and Mud Crab Fishery Management Plan 49 49 Only in waters that are subject to tidal influence. Pots (as defined in clause 4 of Management Plan); restricted bait net (to be used in accordance with Regulations 41 and 114(b)). May not take Barramundi, Threadfin Salmon, Spanish Mackerel. A13 Trepang Division 13, Part 8 6 6 Area extending seaward from the high water mark of the coastline to an imaginary line 3 nautical miles seaward from the baseline. By hand or hand held implements. May only take Trepang. Regulations No other method has been approved by the Director. D1 Aboriginal Coastal Licence Division 2, Part 11 Regulations 9 9 Within the area specified on the licence as the area in which fish may be taken under the licence. Amateur fishing gear. May not take Barramundi, Threadfin Salmon, Spanish Mackerel or Mud Crabs.

[30]

EFFECT OF THE GRANT 95 The primary Judge first considered whether the Grant had the effect of excluding any public or statutory right to fish in the Waters. He answered this question in the negative. In his view, the Land Rights Act did not exclude the legislative or executive authority of the Northern Territory to licence persons to enter upon and take fish from the Waters. Nor did he think that the Grant made pursuant to the Land Rights Act had abolished the public right to fish in respect of the Waters. 96 His Honour rejected the cross-appellants' contention that s 73(1)(d) of the Land Rights Act showed that the Grant was intended to abrogate any public right to fish in the waters. That contention was founded on the proposition that s 73(1)(d) authorised the Northern Territory Parliament to create a "buffer zone" seaward of the low water mark constituting the outer boundary of Aboriginal land. The cross-appellants submitted that the scope of s 73(1)(d) had been limited in this way because the Commonwealth Parliament had assumed that grants under the Land Rights Act would abrogate the common law right to fish in tidal waters. 97 The primary Judge preferred a different construction of s 73(1)(d) of the Land Rights Act. He considered (at 10) that it was: "inherently unlikely that the legislation intended to create separate regimes for waters of the sea, depending on whether the tide was in or out". In his view, the expression "waters of the territorial sea … adjoining … Aboriginal land" in s 73(1)(d) was more sensibly construed to encompass waters of the sea which came into contact with Aboriginal land, whether landward or seaward of the low water mark. This was consistent with the notion of a buffer zone proposed by Justice Woodward in the Second Report. It also addressed the artificiality of the distinction between waters of the sea overlying what his Honour described as the "inter-tidal zone" and other waters of the sea, bearing in mind the constant movement of those waters by tidal forces and the movement of fish and aquatic life through those waters. 98 The primary Judge also rejected the contention that the Grant, insofar as it conveyed the fee simple the Land, encompassed the Waters. In his Honour's view, the definition of "land" in s 22(1)(c) of the Acts Interpretation Act did not include waters. Nor was there any particular feature of the Land Rights Act which suggested that some other meaning of the word "land" was intended. On the contrary, the reservation of mineral rights from any grant under s 12(2) of the Land Rights Act and the inclusion of waters in the definition of "minerals" in s 3(1), suggested that if the Waters were intended to be embraced by the Grant, the Land Rights Act would have clearly and specifically said so.

[31]

FISHING RIGHTS IN THE WATERS 99 The primary Judge next addressed the nature of fishing rights in respect of the Waters. He said that the authorities, especially Harper v Minister for Sea Fisheries (1989) 168 CLR 314, established that the public right to fish had been received as part of the common law of Australia. The Agreed Facts merely stated that the ordinary use of the Waters by Aboriginal people included taking fish and other aquatic life; they did not suggest that this use was exclusive. Accordingly, unless the common law right to fish had been abrogated by statute, it persisted in respect of the Waters. The question, then, was whether the right had been abrogated by the Fisheries Act or its predecessors. 100 His Honour considered that s 10 was the key provision of the Fisheries Act and that it distinguished clearly between commercial and non-commercial fishing, with the former requiring a licence. The primary Judge then analysed the licensing system established by the Fisheries Act for commercial fishing. He pointed out that the statutory scheme dealt with the taking of fish beyond the reach of the public right to fish. Some licences, for example, extended into waters beyond tidal waters, while others concerned the affixing of nets or structures to land and the taking of sedentary fish, such as molluscs and pearl oysters. 101 His Honour observed that the line between regulation and abrogation "may be an artificially thin one". He noted that regulating the public right to fish might have much the same effect as abrogating the public right to fish and replacing it with a statutory scheme of licensing rights. He also recognised that the public right to fish may be abrogated in relation to a particular species of fish. In the result, however, he rejected the cross-appellants' contention that the public right to fish had been abrogated with respect to commercial fishing. In his view, the Fisheries Act, the Fisheries Regulations and the Fisheries Management Plans were substantially directed towards regulating the public right to fish to preserve fisheries resources from depletion. 102 The primary Judge pointed out that the parties had argued the question of abrogation of the public right to fish by reference only to the Fisheries Act. He had considered the legislative regimes which preceded the Fisheries Act, but had concluded that none abrogated the public right to fish. In his view, the earlier legislation had also merely regulated the public right to fish. Thus the public right had survived the grant of the fee simple estate to the Arnhem Land Trust. 103 The primary Judge said that, even if he had held that the legislation had abrogated the public right to fish, he would not have concluded that the statute conferred rights on licence holders in the nature of a profit a prendre. Rather, he would have held that the legislation had created a novel statutory entitlement which did not confer an estate or interest in Aboriginal land. He therefore would have rejected the applicants' contention that the statutory rights would have detracted from the Arnhem Land Trust's right, pursuant to s 19(4A) of the Land Rights Act, to grant estates or interests in the land.

[32]

THE EXTENT OF FISHING RIGHTS IN the WATERS 104 The primary Judge referred to the authorities establishing that the public right to fish extends to all waters that are subject to a tidal influence, including waters in creeks, estuaries and rivers landward of the high water mark on the foreshore. He observed that "tidal waters", as defined by the parties, were clearly waters in respect of which the public right to fish could be exercised. He noted that the parties disagreed as to whether "non-tidal waters", as defined by them, were in the same position. His Honour considered that it was ultimately a question of fact as to whether so-called "non-tidal waters" (that is, waters landward of the straight lines joining the seaward extremities of rivers, streams and estuaries) were subject to a sufficient ebb and flow of the tide as to allow the public right to fish to be exercised. 105 The primary Judge did not find it necessary to resolve any factual ambiguity. In his view, the Land Rights Act and the Grant had the effect of "impliedly abolishing the public right to fish above the high water mark". His Honour reasoned as follows (at [20]): "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 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 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." 106 His Honour also considered that s 73(1)(d) of the Land Rights Act, insofar as it contemplated a buffer zone, supported this conclusion. The fact that tidal influences in waters landward of the high water mark vary greatly made it unlikely, in his view, that Parliament intended that these waters were to remain "susceptible of the exercise of the public right to fish". He also thought (at 21) that: "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". 107 It followed, in his Honour's opinion, that the Land Rights Act had removed the public right to fish in respect of tidal waters landward of the high water mark. It also followed that the Arnhem Land Trust was empowered to grant interests in the nature of fishing rights in respect of those waters by reason of its ownership of the solum. The provisions of the Fisheries Act had to be read in this light (at 21-22): "The licences granted by the Director under the Fisheries Act cannot, and do not, authorise licences to engage in the activities which the licence otherwise permits in rivers, streams and estuaries landward of [the high water mark] line. Members of the public no longer have the right to fish in rivers, streams and estuaries landward of that line. That right has, to that extent, been abrogated by the Land Rights Act and the grant made under it". 108 According to his Honour, this left the question of whether the licences permitted activities within the Waters which did not fall within the public right to fish. (His Honour appears to have considered that this question flowed from his acceptance of the proposition that fishing activities encompassed by the public right to fish prevailed in the waters of what he described as the "inter-tidal zone", that is to say the waters in the zone between the low and high water marks drawn as he had suggested. It was necessary, on this view, to delineate what activities fell outside the public right to fish, since these could not prevail against the Arnhem Land Trust as the proprietor of the solum.) His Honour considered that, insofar as licences granted under the Fisheries Act authorised the taking of "free swimming fish" in the waters of the inter-tidal zone (as he used that term), the permitted activities fell within the public right to fish within those waters and therefore prevailed over the interest of the Arnhem Land Trust. 109 His Honour noted that certain categories of licence authorised the taking of sedentary fish and other aquatic life from the land under the waters of the inter-tidal zone, such as mud crabs. He also noted (at 22) that, according to the authorities, there were: "some species of aquatic life which have such a close connection to the solum that they form part of the solum, and so fall within the ownership of the proprietor of that solum". The primary Judge acknowledged that the Agreed Facts did not contain material upon which a finding could be made that the taking of a particular form of aquatic life was encompassed by the public right to fish. He therefore proposed to answer Separate Question 2 by reference to the distinction drawn by the authorities. 110 The primary Judge then referred to the fact that some licences issued under the Fisheries Act permitted the affixing of nets or other objects to the solum for the purposes of fishing. In his view, the authorities supported the conclusion that the temporary affixing of nets to the solum underlying the inter-tidal waters fell within the reasonable exercise of the public right to fish. Nonetheless, the cross-appellants and the appellants had submitted to him that it was not appropriate to decide any issues in relation to the temporary affixing of nets. Accordingly, he proposed that the answer to Separate Question 3 should reserve that question. 111 His Honour considered the answer to Separate Question 4 straightforward since the public right to fish had to carry with it a right of passage upon the waters of the inter-tidal zone for the purposes of fishing.

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THE ANSWERS TO THE SEPARATE QUESTIONS 112 After receiving submissions on the form of answers that should be given to the Separate Questions, the primary judge gave the following answers in orders made on 10 March 2000. It will be recalled that his Honour redefined the expressions "tidal waters" and "non-tidal waters" to reflect his reasoning. The answers given by his Honour to the Separate Questions were as follows: "Is the holder of a licence granted by the First Respondent pursuant to section 10 of the Fisheries Act entitled by virtue of:- (a) that licence and the Fisheries Act or any instrument of a legislative character thereunder; or (b) any public right, to:- 1. Take free-swimming fish from:- 1.1. the tidal waters; Question 1.1(a) and (b) A: Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act. 1.2. the non-tidal waters; Question 1.2(a) and (b) A: No. 2. Take sedentary fish or other aquatic life form the land under:- 2.1. the tidal waters; Question 2.1(a) and (b) A: Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act, but excluding aquatic life which has such a close connection with the land underlying the tidal waters that it forms part of that land. 2.2. the non-tidal waters; Question 2.2(a) and (b) A: No. 3. Affix nets or other objects to the land under:- 3.1. the tidal waters (or on the adjacent land comprising Aboriginal land the subject of the deed of grant); Question 3.1(a) and (b) A: Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act, providing that the affixing of such nets or other objects is temporary and subject to the question whether the exercise of such activities or of any such activity is inconsistent with the Land Rights Act or with the grant. 3.2. the non-tidal waters (or on the adjacent land comprising Aboriginal land the subject of the deed of grant); Question 3.2(a) and (b) A: No. 4. Enter by boat or otherwise or float upon:- 4.1. the tidal waters (for the purposes of taking free swimming fish, sedentary fish or other aquatic life); Question 4.1(a) and (b) A: Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act. 4.2. the non-tidal waters (for the purposes of taking free swimming fish, sedentary fish or other aquatic life); Question 4.2(a) and (b) A: No."

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THE APPELLANTS' SUBMISSIONS 114 The appellants identified the issue for determination by the primary Judge as whether persons licensed by the Director under the Fisheries Act to take fish from the Waters could do so despite the grant to the Arnhem Land Trust of the fee simple estate in the Land. They contended that an affirmative answer should be given to this question. Their submissions, on the appeal and the cross-appeal, were to the following effect: · At common law, the public has a right to fish in tidal waters. This right extends to the tidal reaches of rivers and estuaries as well as the waters of the sea within territorial limits. The public right to fish is part of the common law of Australia and cannot be abrogated, save by competent legislation. · The public right to fish is a long established common law right, which should not be taken as having been removed except by a clear expression of legislative intention. · The statutory scheme controlling fishing in the Northern Territory is and has been purely regulatory in character. The primary Judge was correct to hold that neither the Fisheries Act, nor the previous Territory legislation, had abrogated the common law public right to fish in tidal waters. · Nor does the Land Rights Act exhibit an intention to abrogate the common law right to fish in tidal waters. Section 71 of the Land Rights Act recognises and protects traditional use of Aboriginal land, perhaps including traditional fishing rights over the land. But the common law does not recognise exclusive rights to fish in tidal waters: Commonwealth v Yarmirr, at 472, 477, per Beaumont and von Doussa JJ. Thus, s 71 is not incompatible with the continuation of the public right to fish in the Waters. Section 73(1)(d) of the Land Rights Act provides a mechanism for the Northern Territory Legislative Assembly to pass legislation abrogating the public right to fish. The Legislative Assembly, however, has not done so. · Contrary to the cross-appellants' submissions, the Grant of the Land to the Arnhem Land Trust did not include the Waters. Nor did the Grant, of itself, restrict the use that could be made by others of those Waters. The word "land" in the Land Rights Act is used in its ordinary sense, namely the solid part of the surface of the Earth not permanently covered by the sea. The Grant therefore operated in the same manner as any other grant of a fee simple estate and did not affect the public right to fish. · The Land Rights Act does not confer power on the Arnhem Land Trust to grant licences for commercial fishing in the Waters. The power conferred by s 19(4A) on a Land Trust is intended to be confined to the grant of an licence or interest in Aboriginal land and does not extend to the grant of an interest in tidal waters overlying that land. The Land Rights Act must be interpreted against the background of the Grant, which did not carry with it ownership of either the Waters or the fish therein. 115 In their written submissions, the appellants argued that the appeal should be allowed and that answers given by the primary Judge to Separate Questions 1.2, 2.2, 3.2 and 4.2 should be set aside. The appellants submitted that the following answers should be substituted: "Question 1.2(a) and (b): Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act. Question 2.2(a) and (b): Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act, but excluding aquatic life that has such a close connection to the land underlying the waters that it forms part of that land. Question 3.2(a) and (b): Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act, providing that the affixing of such nets or other objects is temporary and subject to the question of whether the exercise of such activities or any such activity is inconsistent with the Land Rights Act or with the grant. Question 4.2(a) and (b): Yes, according to the terms of the licence and subject to the provisions of the Fisheries Act."

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The CROSS-APPELLANTS' SUBMISSIONS 116 The cross-appellants contended that the Arnhem Land Trust and the traditional Aboriginal owners acquired, by virtue of the Grant, the right to control access to all waters overlying the Land, including the Waters (that is, all waters subject to tidal influences). It followed, according to this argument, that the Arnhem Land Trust and the traditional owners had the exclusive right to fish in the Waters. 117 The cross-appellants' primary submission was that the right to control access to the Waters flowed from the grant to the Arnhem Land Trust of the fee simple estate in the Land. According to Mr Basten QC, who appeared with Mr Glacken for the cross-appellants, the grant of the fee simple estate in the Land conferred a right to exclude all others, not merely from the surface of the land, but from any overlying waters, including waters subject to tidal influences. 118 At one point in the argument, Mr Basten seemed to suggest that the fee simple estate granted to the Arnhem Land Trust was a statutory creation, which conferred more extensive rights than a fee simple estate under the general law. Ultimately, however, he accepted that, although the Land Rights Act was the source of the authority to grant a fee simple estate to a Land Trust, the estate, once granted, had the characteristics of a fee simple under the general law. Mr Basten recognised that this proposition had to be qualified to take account of the express provisions in the Land Rights Act, such as s 19(1), which restricts the power of a Land Trust to deal with or dispose of Aboriginal land. But there was no express provision which relevantly detracted from the Arnhem Land Trust's rights as the holder of the fee simple estate in the Land. 119 It followed, according to the cross-appellants, that the Arnhem Land Trust had the benefit of the principle "cujus est solum ejust est usque ad coelum, et ad inferos" and therefore, as the owner of the soil, owned everything up to the heavens and down to the centre of the earth. The principle was sufficient, so it was argued, to give the Arnhem Land Trust exclusive rights in the Waters. Accordingly, the Arnhem Land Trust could exclude non-Aboriginal persons using the Waters, at least for the purposes of commercial fishing. 120 Mr Basten contended that this conclusion was consistent with the objectives of the Land Rights Act, which was designed to protect traditional forms of Aboriginal use and occupation of land such as usufructuary rights of foraging, hunting and fishing. It also gave effect to the recommendations of Woodward J in the Second Report, on which the Land Rights Act had been largely based. 121 The cross-appellants put forward alternative submissions, to the effect that the scheme of the Land Rights Act was to confer on Land Trusts exclusive rights in tidal waters overlying Aboriginal land. Mr Basten put these submissions in various ways. In substance, however, he contended that a number of provisions in the Land Rights Act evinced an intention that a Land Trust was entitled to exclude non-Aboriginal persons from gaining access to tidal waters for purposes such as commercial fishing. 122 According to Mr Basten, the provisions that had this effect were the following: · Sections 70 and 71 of the Land Rights Act, on their proper construction, prohibited non-Aboriginal persons entering the Waters. Mr Basten recognised that s 70 refers only to "Aboriginal land". He maintained, however, that this expression should be interpreted in accordance with the statutory objective of protecting traditional Aboriginal relationships with the land. When so construed, he argued, the expression extended not only to the surface of land and the sea-bed, but to the overlying tidal waters. · The effect of s 19(4A) of the Land Rights Act, when read with s 19(11) (both of which were inserted into the Act in 1987), was to authorise the Land Trust to grant fishing rights in the Waters. When these provisions were read in conjunction with the provisions protecting traditional rights in Aboriginal land, they conferred on Land Trusts exclusive fishing rights in the Waters. 123 The cross-appellants then said that, since the Arnhem Land Trust had exclusive rights in the Waters, the Legislative Assembly of the Northern Territory lacked power to make laws authorising commercial fishing in the Waters. Any legislation purporting to authorise such fishing in the Waters would be inconsistent with the Land Rights Act and therefore invalid or inoperative. Legislation of this kind would not be saved by s 74 of the Land Rights Act, since the law would be incapable of operating concurrently with the Land Rights Act. Therefore, to the extent that the Fisheries Act intended to create or authorise the creation of commercial fishing rights in the Waters, it was invalid or inoperative. 124 The final argument relied on by the cross-appellants was that, even if their contention that the Arnhem Land Trust had exclusive rights of access to the Waters by virtue of the grant of the fee simple estate or the operation of the Land Rights Act was not correct, the holder of a commercial fishing licence issued under the Fisheries Act was not entitled to fish in the Waters. This result was said to come about for two independent reasons: · first, assuming the Fisheries Act intended to confer executive authority on the Director of Fisheries to issue licences authorising fishing in the Waters, the Director could not validly exercise that authority having regard to the terms of the Northern Territory (Self Government) Act 1978 (Cth); and · secondly, in any event, the Fisheries Act was not intended to confer on licence holders rights to fish in tidal waters overlying Aboriginal land. 125 Another way of putting the point attacked the appellants' reliance on the public right to fish in order to support the continuation of commercial fishing in the Waters. The cross-appellants submitted that the public right to fish had been abrogated by the statutory licensing schemes in the Northern Territory, most recently that established by the Fisheries Act. That legislation regulated rights of commercial fishing to such a degree that the public right to fish was no longer recognisable and should be regarded as having been replaced by statutory rights. In short, fishing rights once recognised by the common law had been replaced by a new species of statutory entitlements. 126 It followed, on this argument, that the Arnhem Land Trust had the right to fish in the Waters by virtue of its fee simple estate in the soil. While this right may have been subject to the common law public right to fish (if the cross-appellants' other submissions were not accepted), it became in effect exclusive once the public right to fish had been abrogated. Any attempts by the Fisheries Act to authorise interference with the Arnhem Land Trust's exclusive rights to fish in the Waters would be inconsistent with the Land Rights Act and invalid. 127 The cross-appellants sought orders that the appeal be dismissed and the cross-appeal allowed. In lieu of the answers given by the primary Judge to the Questions 1.1, 2.1, 3.1 and 4.1, the cross-appellants submitted that each should be answered "No".

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appropriateness of the separate questions 131 In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, the High Court warned against courts providing answers to hypothetical questions or giving advisory opinions. The majority judgment pointed out (at 355) that: "central to those descriptions [of the purpose of a judicial determination] is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy." The judgment quoted with approval (at 356) a passage from Zamir and Woolf, The Declaratory Judgment (2nd ed, 1993), at 132: "If … the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion." 132 In Bass there was no agreed statement of facts and no findings of facts had been made (at 354-355). The present case is different, since the parties have reached agreement on at least some facts. Nevertheless, it quickly became apparent in argument that the Separate Questions pose many difficulties. 133 The cross-appellants' written submissions cast doubt on the utility of at least some of the Separate Questions, notwithstanding that they had propounded the Separate Questions before the primary Judge. In their written submissions, the cross-appellants accepted that the question of whether the common law public right to fish had been received in Australia was a question of law. But, so they argued, the application of the public right to fish to particular waters depended, at least in part, on findings of fact. They pointed out that the Agreed Facts did not deal with the existence or application of the public right to fish in the Waters. It followed, so they contended, that the Separate Questions could not be answered insofar as the answers depended on deciding whether the public right to fish did or did not apply to the Waters. 134 In the course of oral argument on the appeal and cross-appeal, other difficulties emerged. The Separate Questions are framed by reference to the entitlement of "the holder of a licence" pursuant to s 10 of the Fisheries Act. As the Agreed Facts make clear, there are many categories of licences issued pursuant to s 10 of the Fisheries Act. Each has its own set of conditions and restrictions and these may vary from time to time. Questions that attempt to embrace the disparate circumstances of many licence holders are likely to produce answers that leave many important issues unresolved or uncertain. Such answers are therefore unlikely to settle the dispute between the parties (cf s 33C(1)(c) of the Federal Court of Australia Act 1976 (Cth), which requires representative proceedings, inter alia, to "give rise to a substantial common issue of law or fact".) 135 Separate Question 1.1 provides an example of the difficulties. The answer given by the primary Judge leaves to another day the question of whether the terms of a particular licence or the provisions of the Fisheries Act affect a given licensee's entitlement to fish in the Waters. It also leaves unaddressed other issues which might well affect that entitlement. What if a particular licence purports to authorise the holder to take fish in such quantities as to threaten the exercise of traditional Aboriginal fishing rights in the Waters? In this situation, is the Fisheries Act capable of operating concurrently with the Land Rights Act (cf Land Rights Act, s 74)? How is the inconsistency issue to be satisfactorily resolved in the absence of specific findings of fact? 136 Similarly, the answer to Separate Question 2.1 is expressed to exclude: "aquatic life which has such a close connection with the land underlying the tidal waters [seaward of the high water mark] that it forms part of the land". This answer substitutes another inquiry for the question actually asked. In these circumstances, it is difficult to see how the answer "will settle the dispute finally" (Bass, at 356) or avoid further litigation between the cross-appellants and individual licence holders. 137 The affirmative answer given by the primary Judge to Separate Question 3.1 is expressed to be subject to "the question whether the exercise of such activities [that is, affixing nets or other objects to land under 'tidal waters']…is inconsistent with the Land Rights Act or with the Grant." The unresolved question of inconsistency which is built into the answer raises a variety of difficult factual and legal issues. Until these are resolved, the answer to Separate Question 3.1 can hardly be described as a "conclusive or final decision based on a concrete and established or agreed situation" (Bass, at 355). Indeed, it is difficult to see how this answer advances matters at all. 138 Separate Question 4 is concerned with the entitlement of a licence holder to enter by boat or otherwise float upon the Waters for the purpose of taking free swimming fish, sedentary fish or other aquatic life. The answer to this question is again framed by reference to the terms of the licence and the provisions of the Fisheries Act. As I have explained, there are many categories of licences, each with its own set of conditions and restrictions that may vary from time to time. The provisions of the Fisheries Act or legislative instruments made thereunder may change from time to time. The answer given to Question 4 simply does not address the possible inconsistency between the right of a licence holder to enter the Waters (whatever the source of that right) and the Land Rights Act. This is presumably to be left to another day, since the present proceedings cannot definitively resolve any issue of inconsistency. If that is so, the answer given by the primary Judge cannot stand. Whether licence holders are entitled to enter the Waters for the purposes specified in Question 4, as the answer suggests, is likely to depend on factual issues not explored in these proceedings. 139 The difficulties with the Separate Questions stem largely from the attempt to incorporate so many concepts into a single set of questions divorced from agreement on specific facts. The Separate Questions not only distinguish between "tidal" and "non-tidal" waters (concepts that were themselves redefined by the primary Judge), but attempt to link different sources or potential sources of the right to take fish (that is, a licence issued pursuant to the Fisheries Act and the common law public right to fish). The Separate Questions also invite answers concerning the entitlements of licence holders, notwithstanding that they are a disparate class whose licences are subject to varying conditions and restrictions. Moreover, as the cross-appellants' written submissions pointed out, any attempt to answer the Separate Questions by reference to the limits of the public right to fish was bound to raise further factual issues. And lurking in the background are complications deriving from questions of possible inconsistency between particular provisions of the Land Rights Act and rights conferred or assumed by the Fisheries Act. 140 Once these difficulties became apparent, the Solicitor-General considered them so formidable that the appellants changed course entirely. Instead of supporting the position taken in the appellants' written submission, the Solicitor-General submitted that "the only appropriate order" was to answer all of the Separate Questions: "Inappropriate to answer". 141 Mr Basten acknowledged the difficulties presented by the Separate Questions in the form they took before the primary Judge. Nonetheless, he expressed a preference that the Court should answer them, or at least such of them as could be usefully addressed. He also indicated that he wished to preserve the possibility that questions could be formulated which enabled the cross-appellants' contentions to be addressed: that is, their claims that the Grant and the Land Rights Act, either separately or together, had the effect of conferring on the Arnhem Land Trust the right to exclude all others, including the holders of licences under the Fisheries Act, from the Waters.

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THE POWER TO SUBSTITUTE THE AMENDED QUESTIONS 143 When making the request to permit the amendments the parties apparently assumed that the Court has power on an appeal to substitute fresh questions for those identified at first instance as appropriate to answer. In any event, the request was not accompanied by any reference to the source or scope of the power to take the course suggested by the parties. 144 The High Court has emphasised that the powers of a statutory court, such as the Federal Court of Australia, in relation to appeals is determined by the terms of the statutory grant of the right of appeal: DJL v Central Authority (2000) 170 ALR 659, at 671, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; CDJ v VAJ (1998) 197 CLR 172, at 199, per McHugh, Gummow and Callinan JJ. 145 Section 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") confers jurisdiction on the Court to "hear and determine…appeals from judgments of the Court constituted by a single Judge". The powers of the Court in the exercise of its appellate jurisdiction include those conferred by s 28 of the Federal Court Act "(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction: (a) affirm, reverse or vary the judgment appealed from; (b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; (c) set aside the judgment appealed from, in whole or in part, and remit the proceedings to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; …. (3) The powers specified in subsection (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision." 146 A broad view has been taken of the powers conferred by s 28. In Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409, Lee J observed (at 416) that s 28 "confirms that the appellate jurisdiction conferred [by the Federal Court Act] provides the Court with sufficient powers to ensure that the decision given on appeal is just and not contravened by the technical form of the appeal." His Honour held that the Court had a discretionary power, in the exercise of its appellate jurisdiction, to permit the amendment of an original pleading to raise an issue of fact or law that may fairly be determined on the existing evidence. Lee J stated (at 416) that permission to take on appeal a point not taken at trial would depend on whether the relevant facts had been established beyond controversy, whether it was in the interests of justice that the point be decided and whether the amendment would occasion injustice to any party. Carr J's approach was similar (at 428-429), although his Honour also relied on Federal Court Rules, O 13 r 2(1) (which permits the Court at any stage of the proceedings, on application by any party or of its own motion, to order that any document in the proceedings be amended). Black CJ agreed (at 411) with both Lee and Carr JJ. See also Classic Gourmet Sausages Pty Ltd v Leda Commercial Properties Pty Ltd (2000) 97 FCR 313, where it was held, on an appeal from the Supreme Court of the Australian Capital Territory, that s 28 is sufficiently broad to authorise the Full Court to order that a party to be added to the notice of appeal in the Supreme Court: see at 320, per Gallop J; at 330-331, per Hill J; cf at 334, per Gyles J. See also White v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 511, at 517-519 per curiam; CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 (where the Court of Appeal amended a question determined separately by the trial judge, although s 75A of the Supreme Court Act 1970 (NSW) is in different terms to s 28 of the Federal Court Act.) 147 Nothing in the judgments of the High Court on appeal in Teoh cast doubt on the Full Court's construction in that case of s 28 of the Federal Court Act: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Nor does the reasoning of the Full Court appear to be inconsistent with later decisions of the High Court, such as CDJ v VAJ and DJL v Central Authority. It is therefore arguable that s 28(1) of the Federal Court Act is broad enough to empower a Full Court to make an order by consent substituting fresh separate questions for those answered by the primary Judge. It is not, however, necessary in the present case to determine that question. I am prepared to assume that the power exists.

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SHOULD THE AMENDED QUESTIONS BE SUBSTITUTED FOR THE SEPARATE QUESTIONS? 148 Assuming there is power in the Court to order that the Amended Questions be substituted for the Separate Questions, it is necessary to consider whether the power should be exercised as the parties have requested. It is true that the Amended Questions eliminate some of the difficulties associated with the Separate Questions. They omit any reference to taking sedentary fish or other aquatic life from the land under the Waters (Separate Question 2). They also omit any reference to affixing nets or other objects to the land under the Waters (Separate Question 3). There is therefore no need to explore the limits of the public right to fish in tidal waters (assuming it has survived in the Northern Territory), divorced from any purported exercise of that right and without the benefit of specific findings of fact. 149 Nonetheless, the Amended Questions have by no means removed all difficulties. I leave to one side the fact that the Amended Questions retain the distinction between so-called tidal and non-tidal waters. As I have explained, none of the parties supported that distinction except as a fall back position and, even then, only with the faintest arguments. 150 Amended Question 1 is not confined by time or by reference to particular licences. It is not clear whether it is intended to refer to licences in force at a particular date or at any time in the future. It is also not clear whether the reference to "any instrument of a legislative character thereunder" is intended to be confined to instruments in force at a particular date, or whether it is intended to encompass any instruments that might be made under the Fisheries Act. The question in its present form is therefore ambiguous. 151 Amended Question 1, like the Separate Questions, is framed in terms of the entitlement of "the holder of a licence granted…pursuant to section 10 of the Fisheries Act". It therefore covers the full range of licences issued (or perhaps which could be issued) under the Fisheries Act (or perhaps the Fisheries Act as amended from time to time). As I have noted, licences issued under the Fisheries Act are subject to many different conditions and restrictions. The answer to the question will therefore have to embrace a great variety of licences and a great variety of circumstances. 152 Amended Question 1 attempts to overcome the difficulty by asking whether the holder of a licence can ever be entitled to take fish from the Waters, by virtue of either the licence or any "public right". The intent apparently is to enable the cross-appellants' principal submissions to be tested. That is, the cross-appellants presumably say that the question can be answered "No" because the Grant or the provisions of the Land Rights Act (or both) have the effect of vesting in the Arnhem Land Trust exclusive rights to fish in the Waters. They would contend that those rights prevail over any rights that licence holders might have either under the Fisheries Act (NT) or by virtue of the public right to fish. 153 It is not clear, however, that a negative answer can be given to Amended Question 1, regardless of what view is taken of the law The case was plainly intended by the parties to address the entitlements of holders of commercial fishing licences in the tidal waters within the boundaries of Aboriginal land. The argument as to whether the Fisheries Act abrogated the public right to fish in tidal waters accordingly concentrated on the effect of s 10(1) of the Fisheries Act. Mr Basten, for example, disclaimed any intention of seeking orders that would affect fishing for personal use (which is exempted from the licensing requirements by s 10(2) of the Fisheries Act). While the cross-appellants argued that the Fisheries Act, or its predecessors, had abrogated the public right to fish so far as commercial fishing is concerned, they did not contend that the public right to fish in tidal waters for personal use had also been abrogated. 154 A person may be a licence holder yet on a particular occasion, seek to exercise the public right to fish for personal use in tidal waters (the continuation of which has not been challenged in these proceedings). If Amended Question 1 were answered "No", such a person would be precluded from fishing in the Waters. Presumably the parties do not intend this result. Perhaps the difficulty with the wording of Amended Question 1 can be overcome by a further amendment to the Amended Questions. But the amendment may create yet further difficulties. 155 These are not, however, the only difficulties with Amended Question 1. As I have indicated, the attraction from the cross-appellants' point of view to a question in this form is presumably that it provides an opportunity, with little risk, to test the most sweeping propositions advanced on their behalf. But it is necessary to consider the position if those propositions are not accepted. 156 Without expressing a final view, I should indicate that, in my view, there are obstacles in the path of accepting the cross-appellants' contention that the grant of the fee simple estate to the Arnhem Land Trust, of itself, carried with it exclusive rights to fish in the Waters. That contention is not easy to reconcile with the legislative history of the Land Rights Act, which tends to suggest that the fee simple estate granted pursuant to s 12(1) carried "all the normal incidents of such title" (to use the language of the Second Report: see [45] above). If that is correct, it would seem to follow that the Arnhem Land Trust's right to "enjoy the exclusive right of fishing in [the Waters] or to grant such a right to another as a profit a prendre is qualified by the paramount right to fish vested in the public": Harper v Minister for Sea Fisheries (1989) 168 CLR 314, at 329, per Brennan J (with whom the other members of the Court agreed). See also Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 159, at 170-171. I also think that there are difficulties with the contention that the "scheme" of the Land Rights Act is to confer on the Arnhem Land Trust exclusive rights to the Waters. 157 If the Arnhem Land Trust did not acquire exclusive rights in the Waters by reason of the Grant or the scheme of the Land Rights Act, it is then necessary to consider whether there are any circumstances in which the holder of a licence under the Fisheries Act can take free-swimming fish from the Waters. That in turn gives rise to the question of whether the Fisheries Act (or perhaps earlier legislation) has abrogated the public right to fish in Northern Territory tidal waters, at least so far as fishing other than for personal use is concerned. 158 If the public right to fish has been abrogated, it is then necessary to consider whether the Fisheries Act or other legislation, or any subordinate instrument, purport to confer an affirmative right to fish in tidal waters. This was an issue raised but not explored in depth in the argument. The resolution of the issue may vary depending on the terms of subordinate instruments and particular licences granted under the Fisheries Act. The parties did not endeavour to confine the issues by limiting the argument, for example, to a particular class of licence. It may also be necessary to consider whether the grant of the fee simple estate in the solum, pursuant to the Land Rights Act, carries with it the right to exclude persons who are not exercising a public right to fish or to navigate in the Waters. 159 Whether or not the public right to fish has been abrogated, it is also necessary to consider whether the right to fish commercially in the Waters is or may be inconsistent with rights conferred or recognised by the Land Rights Act. For example, issues will arise as to whether traditional rights protected by s 72(2) are inconsistent with (and therefore prevail over) the rights conferred as recognised by Northern Territory law to fish in tidal waters. Mr Basten also argued that s 19(4A) of the Land Rights Act creates rights in the Arnhem Land Trust that are or may be inconsistent with rights conferred or acknowledged by Northern Territory law. Certainly the cross-appellants were not prepared to accept that the rejection of their most sweeping arguments meant that commercial fishing could take place in the Waters. 160 If the cross-appellants' principal submissions are not accepted, the result is that neither the cross-appellants nor the respondents will know whether commercial fishermen are entitled to fish in the Waters. That would presumably have to be determined on a case by case basis, depending on the source of any right to fish created or protected by Northern Territory law and the extent to which, if at all, Northern Territory law might be found to be inconsistent with particular provisions of the Land Rights Act or, for that matter, other federal laws. In other words, Amended Question 1 may well be answered in a manner that resolves nothing of substance. Indeed, if the Court rejects the appellants' principal submissions, it is difficult to see what answer could be given to Question 1 other than "perhaps". 161 The same difficulties arise with respect to Amended Question 2. 162 I would refuse the application to substitute the Amended Questions for the Separate Questions.

Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust

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Legislation Cited (19)

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