Northern Territory of Australia v Arnhem Land Aboriginal Land Trust

Northern Territory of Australia v Arnhem Land Aboriginal Land Trust - [2008] HCA 29 - HCA 2008 case summary — Zoe

[16]

GLEESON CJ, GUMMOW, HAYNE AND CRENNAN JJ. The central issue arising in this appeal is whether a grant in fee simple, made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"), confers rights to exclude from tidal waters within the boundaries of the grant persons who wish to take fish or aquatic life in those waters, including persons holding a licence under the Fisheries Act (NT) ("the Fisheries Act"). That issue arises in litigation the origins of which can be traced to Aboriginal traditional owners of parts of Blue Mud Bay in northeast Arnhem Land wishing to determine their rights to exclude fishermen and others from waters in that area.
On 30 May 1980, pursuant to the Land Rights Act[1], the Governor‑General executed deeds of grant of an estate in land to the first respondent (Arnhem Land Aboriginal Land Trust - "the Land Trust") in relation to two areas described in Sched 1 to the Land Rights Act. One grant, the Arnhem Land Mainland Grant ("the Mainland Grant"), concerned approximately 90,000 square kilometres of the mainland of the Northern Territory between the mouth of the East Alligator River in Van Diemen Gulf (in the west) and the mouth of the Roper River in the Limmen Bight (in the east) but excluding Cobourg Peninsula. The other grant, the Arnhem Land Islands Grant ("the Islands Grant"), concerned all the islands (except Groote Eylandt) in the Northern Territory generally adjacent to the land the subject of the Mainland Grant.
The Yolngu people are the traditional owners of parts of Arnhem Land, including areas of Blue Mud Bay. Blue Mud Bay lies within the Mainland Grant. Before the Land Rights Act came into force, Blue Mud Bay fell within the Arnhem Land Reserve created in 1931 "for the use and benefit of Aboriginal native inhabitants" under the Crown Lands Ordinance 1927 (NT) and under subsequent Northern Territory Ordinances dealing with reserves.
Both grants made under the Land Rights Act described the interest granted as "an Estate in Fee Simple". The Land Trust must exercise its powers as owner of the land "for the benefit of the Aboriginals concerned"[2]. The Land Trust must act in accordance with the directions of the relevant Land Council[3] - the Northern Land Council - and the functions of the Land Council, under the Land Rights Act, include the protection of the interests of the traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council[4].
Both grants were subject to the provisions of the Land Rights Act and to some conditions, exceptions and reservations. Each extended to low water mark and included areas bounded by straight lines joining the seaward extremities of the banks of rivers, streams and estuaries intersecting the coast. The grants encompass the area of land that is covered and uncovered by water at different times of the day, depending upon the position of the tides ("the intertidal zone"). In addition, rivers and estuaries are affected by the ebb and flow of the tides and tidal waters therefore extend landward of the straight line boundaries of the grants.
The Land Rights Act refers[5] to land the subject of grants, like the Mainland Grant and the Islands Grant, as "Aboriginal land". Section 70(1) of the Land Rights Act provides that "[a] person shall not enter or remain on Aboriginal land" and prescribes a penalty for doing so. The general prohibition in s 70(1) is qualified in several respects by other provisions of the Land Rights Act and it will be necessary to describe and examine those qualifications in more detail. Immediately, however, it is sufficient to notice that in proceedings for an offence against s 70(1) it is a defence[6] if the person enters or remains on the land "in performing functions under [the Land Rights] Act or otherwise in accordance with [the Land Rights] Act or a law of the Northern Territory". One law of the Northern Territory relevant to s 70(1) and the defence for which s 70(2A) provides is the Aboriginal Land Act (NT) ("the Aboriginal Land Act"). Under the Aboriginal Land Act[7] the relevant Land Council may grant permission to enter and remain on Aboriginal land. Power to enact such a law was given to the Legislative Assembly of the Northern Territory by s 73(1) of the Land Rights Act[8].
This appeal is brought by the Northern Territory and the Director of Fisheries for the Northern Territory against orders of the Full Court of the Federal Court of Australia. That Court made declarations about the application and validity of the operation of the Fisheries Act in areas within the boundary lines described in the Mainland Grant and the Islands Grant and about whether the Fisheries Act confers power to grant a licence which would authorise or permit the holder to enter and take fish or aquatic life from areas subject to those grants.
As mentioned at the outset of these reasons, the central issue in this appeal is whether, without permission from the Land Trust, a person holding a licence under the Fisheries Act can fish in the intertidal zone within the boundaries of either the Mainland Grant or the Islands Grant, or in the tidal waters within those boundaries. To resolve that issue it will be necessary to consider two questions. Is fishing in those waters to enter or remain on Aboriginal land? This question should be answered, "yes". Does a person who holds a licence under the Fisheries Act enter or remain on that land "otherwise in accordance with ... a law of the Northern Territory", so as to found a defence to contravention of s 70(1) of the Land Rights Act? This question should be answered, "no".

[17]

Two proceedings in the Federal Court of Australia were tried concurrently. One proceeding, instituted by the Land Trust (the first respondent in this Court), the Northern Land Council (the second respondent), and the third respondents in this Court ("the native title holders"), sought declarations of their rights under the grants that have been described and sought orders restraining both the Director of Fisheries and the Northern Territory itself from issuing fishing licences in relation to areas the subject of claims to native title (which included areas within the boundaries of the grants). The other proceeding was a claim to native title by persons who included the native title holders.
The proceeding seeking declarations that the rights of the traditional owners over the intertidal zone or in the tidal waters within the boundaries of the grant were exclusive of all others was commenced, at least in part, in order to resolve a difference of opinion that had arisen in about 1996 or 1997 between the Northern Land Council on the one hand, and the Director of Fisheries on the other about whether the Director could, pursuant to the Fisheries Act, grant licences to persons to fish in, and enter upon, the intertidal zone. There had been reports of commercial fishing and fishing by non‑Aboriginals within Blue Mud Bay, although it was not known whether the persons who were observed fishing had been issued with Fisheries Act licences. The Northern Land Council considered that the Director of Fisheries could not "authorise fishing in waters overlying Aboriginal land". The Director of Fisheries considered that tidal waters over Aboriginal land were not part of the Aboriginal land and that fishing licences could validly authorise fishing in those waters.
Evidence was presented at trial by officers of the Northern Land Council and by members of the Yolngu people that strangers had engaged in fishing activities within the boundaries of the Mainland Grant. There was no evidence that these strangers were holders of a Fisheries Act licence or were purporting to act pursuant to permission granted by a Fisheries Act licence. Some evidence was led at trial of an arrangement between the Northern Land Council, the Land Trust and a commercial crabber authorising commercial crabbing within the boundaries of the grants.
At trial there was debate about whether the proceeding instituted by the Land Trust, the Northern Land Council and the native title holders constituted a "matter". The trial judge (Selway J) held that there was sufficient evidence in the correspondence of a "real dispute as to the powers under the Fisheries Act and whether those powers could be used to interfere with the rights claimed by the applicants". Accordingly, his Honour found that there was a matter which could be determined by proceedings seeking declarations of the respective rights and powers of the parties[9].
The trial judge concluded[10], however, that the first proceeding seeking declarations and injunctions should be dismissed but that, in the second proceeding, a determination of native title should be made. In the first proceeding, his Honour held that the Land Rights Act and the grants made under that Act gave the Land Trust an estate in fee simple to the low water mark[11]. If the matter had been free from authority, Selway J would have concluded[12] that "a statutory grant of an estate in fee simple to the low water mark necessarily conferred a right to exclude from the inter‑tidal zone, including a right to exclude those seeking to exercise a public right to fish or to navigate". But Selway J held that authority binding upon him (particularly the decision of the Full Court of the Federal Court in Commonwealth v Yarmirr[13]) required the opposite conclusion. Accordingly, Selway J held that the grants did not confer the right to exclude persons exercising public rights to fish in the intertidal zone or in the tidal waters on the landward side of the boundaries of the grants[14].
Before orders giving effect to these conclusions were made, Selway J died. The parties agreed that another judge of the Federal Court (Mansfield J) should make such orders as followed from the reasons for judgment which Selway J had published and orders were made accordingly.
The plaintiffs in the first proceeding (the Land Trust, the Northern Land Council and the native title holders) appealed to the Full Court of the Federal Court against the orders of Mansfield J dismissing that proceeding. In the second proceeding, the native title holders appealed against the determination of native title (seeking a larger determination than had been made) and the Commonwealth and the Northern Territory cross‑appealed against the determination. The Full Court (French, Finn and Sundberg JJ) made orders[15] disposing of the several appeals and cross‑appeals that had been instituted in respect of the two proceedings. It is not necessary to trace the detail of those orders. For immediate purposes what is important is the declarations, made by the Full Court, that:

[36]

The fourth and fifth respondents in this Court (respectively, the Northern Territory Seafood Council Inc - "the Seafood Council" - and the Commonwealth) both submitted that licences granted under the Fisheries Act permit access to areas within the boundaries of the grants to the Land Trust made under the Land Rights Act. But a basis for the argument was not articulated beyond reference to the continued existence of the common law public right to fish which, so it was submitted, had not been abrogated by the Fisheries Act. The Commonwealth submitted that the Fisheries Act "preserves and operates upon the public rights of fishing, albeit heavily regulated". And the appellants' submissions that the common law public right to fish authorises entry to areas within the boundaries of the grants depended upon the common law public right to fish not having been abrogated by statute.
These submissions should not be accepted. The statutory abrogation of a public right may appear not only from express words but by necessary implication from the text and structure of the statute[26]. By necessary implication, the Fisheries Act (and in particular ss 10 and 11) abrogated any public right to fish in tidal waters in the Northern Territory that existed before the Fisheries Act was enacted. (It is not necessary to examine whether the right was abrogated by earlier legislation.) Just as "when a prerogative power of the Executive Government is directly regulated by statute, the Executive can no longer rely on the prerogative power but must act in accordance with the statutory regime laid down by the Parliament"[27], the comprehensive statutory regulation of fishing in the Northern Territory provided for by the Fisheries Act has supplanted any public right to fish in tidal waters.
It is the statutory exclusion provided by s 10(2), in favour of fishing for subsistence or personal use only, to which a person fishing in tidal waters may look for exemption from the otherwise general prohibition of s 10(1) against fishing except "under and in accordance with a licence" issued under the Act. And a person may rely upon that exemption only "within such limits (if any)" relating to the matters identified in s 10(2) as may be prescribed for any such fish or aquatic life. But whether and how a person may take fish or aquatic life in the Northern Territory are questions to be answered by resort to the Act, not any common law public right. The common law public right has been abrogated.
It follows that the outcome of the present litigation does not depend upon resolving any competition between a public right (the right to fish) and whatever may be the rights conferred on the Land Trust by the grants made under the Land Rights Act.
It is necessary, however, to go on to consider whether there is some relevant competition between rights derived from the Fisheries Act and the rights of the Land Trust under the grants. That is, because no common law right to fish in the tidal waters of the Northern Territory survived the enactment of the Fisheries Act, it becomes necessary to inquire whether the Fisheries Act seeks to provide that a person who acts in accordance with that Act may enter and fish in waters that lie within the boundaries of the grants. (It is not necessary to distinguish between the intertidal zone and the tidal waters on the landward side of the straight line boundaries.)
The declarations made by the Full Court may be understood as assuming that, if otherwise valid, the Fisheries Act purports to authorise entry to waters within the boundaries of the grants for the purpose of taking fish or aquatic life. So much is implicit in the declaration that the Fisheries Act does not confer power to grant a licence that would permit the holder to enter those waters, and the declaration that the Fisheries Act is invalid and of no effect in so far as it purports to operate with respect to those waters. It is necessary to examine whether the Fisheries Act or a licence granted under that Act does authorise entry to any particular area.

[44]

In the courts below, much attention was directed to whether the Fisheries Act "applied" within the boundaries of the grants. And as noted earlier, the Full Court's first declaration was that the Fisheries Act "has no application in relation to areas within the boundary lines described" in the grants. Again, however, the plaintiffs at whose suit the declaration was made (the Land Trust, the Northern Land Council and the native title holders) accepted in this Court that that declaration cannot be supported and should be set aside.
To ask whether the Fisheries Act "applies" in areas the subject of the grants does not expressly identify the subject of the debate. In the Full Court, the more specific question identified[28] was whether the Fisheries Act could operate concurrently with the Land Rights Act if, and to the extent that, the Fisheries Act did not authorise any interference with the rights conferred by the Land Rights Act. The Full Court concluded[29] that the grants under the Land Rights Act "conferred a right to exclude from the intertidal zone including a right to exclude those seeking to exercise a public right to fish or to navigate". The Full Court considered[30] that the consequence was that the Fisheries Act "has to be read down under s 59 of the Interpretation Act 1978 (NT) so as not to authorise the grant of a licence to take fish in relation to the intertidal zone". As the reference to s 59 of the Interpretation Act shows, the Full Court's conclusion was founded in considerations of the legislative power of the Northern Territory Legislative Assembly. But as the reference to exclusion of "those seeking to exercise a public right to fish" shows, the Fisheries Act was treated as doing no more than regulating the exercise of that right. Once it is recognised not only that the common law right to fish in tidal waters has been abrogated by the Fisheries Act, but also that a licence under the Fisheries Act gives no authority to enter any identified area, it is apparent that the debate in the courts below about the "application" of the Fisheries Act proceeded from incorrect premises.

[48]

Section 4(1) of the Land Rights Act obliged the Minister responsible for the administration of the Act to establish Aboriginal Land Trusts "to hold the Crown land described" in Sched 1 to the Act. There were some qualifications to that obligation provided by s 10(1) and (2) of the Act but those qualifications are not relevant. Section 10(1) then obliged the Minister to recommend to the Governor‑General "that a grant of an estate of fee simple in that land, or in the part of that land to which subsection (2) does not apply, be made to that Land Trust". Again, the qualification to that obligation, if s 10(2) were engaged, may be set aside as irrelevant. Section 12(1)(a) empowered the Governor‑General to "execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the grantee".
The areas which are the subject of the grants which are now in issue were described in Sched 1 to the Land Rights Act. They were defined by metes and bounds which, for the sea boundaries of the areas, were fixed as a relevant "low water mark". The Land Rights Act thus expressly provided for the grant of interests in fee simple over areas that included areas that would be covered by tidal waters.
The grants that are now in question were effected in accordance with the statutory steps described. By defining the areas granted by reference to low water marks, the grants gave effect to the expressly intended operation of the Act.
The Land Rights Act's adoption of the description of the interest to be granted as "an estate of fee simple" must be understood giving due weight to a number of other provisions of the Act. First, a deed of grant under s 12 was to be expressed to be subject to reservations about minerals and mineral explorations that were identified in that section. Secondly, a deed of grant under s 12 was to be expressed to exclude from the grant land on which a road over which the public had a right of way existed at either of two identified times[35]. Thirdly, on the application of a Land Trust to which a deed of grant was delivered, "the Registrar‑General or other appropriate officer under the law of the Northern Territory relating to the transfer of land" was obliged[36] to "register and otherwise deal with that deed of grant under that law according to its tenor". That is, the deed could be, and deed of grant of the areas now in issue have been, registered under the Torrens title system of title by registration adopted in the Territory[37]. Fourthly, the power of a Land Trust to deal with any estate or interest in the land was circumscribed by the Land Rights Act, particularly ss 19, 19A and 20.
The evident purpose of the restrictions on alienation was to confine the classes of persons to whom, and the circumstances in which, the land might be alienated. Alienation to Aboriginals or to Aboriginal or Torres Strait Islander corporations for residential or business purposes of Aboriginals was permitted (s 19(2)). Alienation to the Commonwealth, the Northern Territory, or an Authority of the Commonwealth or the Territory for a public purpose, or to a mission for any purpose was permitted (s 19(3)). But subject to some other exceptions whose detail need not be noticed, an estate or interest in the land, the term of which exceeds 40 years[38], could be granted only if particular conditions were met. Those conditions included not only the written consent of the Minister and the written direction of the relevant Land Council, but also the consent of traditional owners of the land[39].
It is thus apparent that the interest granted under the Land Rights Act differed in some important ways from the interest ordinarily recorded under the Torrens system as an estate in fee simple. But despite these differences, because the interest granted under the Land Rights Act is described as a "fee simple", it must be understood as granting rights of ownership that "for almost all practical purposes, [are] the equivalent of full ownership"[40] of what is granted. In particular, subject to any relevant common law qualification of the right[41], or statutory provision to the contrary, it is a grant of rights that include the right to exclude others from entering the area identified in the grant.
Chief emphasis was placed by the appellants (and the parties who supported them, the Commonwealth and the Seafood Council) on the argument that the right of the Land Trust, as the holder of the fee simple, to exclude others from entering land was qualified by the common law public right to fish. That is, chief emphasis was placed by these parties on arguments that assumed that the grants in question were to be understood as identifying boundaries to what was granted that did not require the making of some further distinction between the land underlying the intertidal areas and the waters lying above those areas. But in so far as those parties made the submission that the grants were limited to rights over the solid surface of the earth, and gave no rights in respect of the superjacent waters, the submission should be rejected.
It is convenient to begin consideration of this aspect of the argument by noticing three uncontroversial propositions. First, the immediate question to be decided in this matter is whether entering or remaining within the intertidal areas, when those areas are covered by water, is to enter or remain on Aboriginal land. That is a question about the proper construction of s 70(1) of the Land Rights Act. Secondly, the Land Rights Act makes frequent reference to "land", and that is ordinarily understood as referring to a solid portion of the earth's surface. Thirdly, it is not to be supposed that the grants to the Land Trust give a proprietary interest to the grantee in respect of any particular column of water that might overlie the intertidal zone.
Because the immediate question in the present matter depends upon the proper construction and application of s 70(1) of the Land Rights Act, it is neither necessary nor productive to attempt to define exhaustively the nature or extent of the rights conferred by the grants over the intertidal zones when they are covered by water. In particular, the question of statutory construction is not answered directly by identifying what rights are conferred by the grants or by asking whether a grant of an estate in fee simple, made under the Land Rights Act, should be understood as subject to a common law right to fish or a common law right of navigation.
The references made in argument to a distinction between the dry land and land covered by water are therefore to be understood as arguments directed to the proper construction of either the reference to "Aboriginal land" in s 70(1) or, perhaps, the reference in that provision to "enter or remain". That is, the distinction that was drawn sought to limit the application of s 70(1) to conduct involving direct contact with the solid surface of the earth.
The asserted distinction between dry land and the land in the intertidal zone when covered by water should not be drawn. The Aboriginal land which is the subject of the grants now in issue is defined by metes and bounds. To define the land in that way requires that s 70(1) is given effect, according to its terms, by reference to those metes and bounds and without regard to whether the tide is in or out at the time of an alleged entry or remaining. Nothing in the Land Rights Act requires a different conclusion.

[51]

The plurality reasons in Risk concluded[44] that if a grant could be made under the Land Rights Act to the seabed below the low water mark of bays or gulfs, s 73(1)(d) would have little or no useful work to do. If a grant could be made under the Land Rights Act in respect of the seabed below low water mark of bays and gulf, it would not be necessary to have legislative power to provide for a two kilometres buffer zone adjoining Aboriginal land. If the Land Rights Act permitted the making of a grant of the seabed of waters below low water mark, the references in s 73(1)(d) to traditional Aboriginal owners entering and using the resources of waters within two kilometres of Aboriginal land would not be needed to protect the interests of either those who were the traditional Aboriginal owners of the area or of others who, though not owners, were entitled to use the waters for traditional purposes. By contrast, provision of power to pass legislation prescribing a two kilometre buffer zone of sea adjoining the boundary of Aboriginal land makes evident sense if the boundary of Aboriginal land is fixed at low water mark, as it is in the grants now under consideration, and if the prohibition on entering and remaining on Aboriginal land is engaged whether or not the intertidal area is covered with water. But if that prohibition operates only when and to the extent that the intertidal zone can be entered on foot, the provision for enactment of legislation providing a buffer zone would necessarily operate in a very odd way.
Two conclusions can be drawn from these considerations. First, what is said in Risk neither requires nor supports the conclusion that "Aboriginal land" when used in s 70(1) should be understood as confined, in intertidal zones, to only the land surface of that area. Secondly, the provisions of s 73(1)(d) support the view, expressed earlier, that the expression "Aboriginal land", when used in s 70(1), should be understood as extending to so much of the fluid (water or atmosphere) as may lie above the land surface within the boundaries of the grant and is ordinarily capable of use by an owner of land.
As explained earlier in these reasons, a contrary construction of s 70(1), of the kind urged by the appellants, the Commonwealth and the Seafood Council, is not supported by reference to a common law public right to fish. That right has been abrogated by legislation.
Nor can reference to common law rights of navigation support the view that s 70(1) should be given the limited operation urged by those parties. As explained earlier in these reasons, reference was made to these rights to explain how a person could enter the intertidal zones without traversing Aboriginal land. What is in issue in this case is whether the holder of a licence issued under the Fisheries Act may fish in the intertidal zone or in tidal waters within the boundaries of the grants. That activity goes beyond the exercise of any right of navigation. Further, like the common law right to fish, common law rights of navigation are susceptible to legislative abrogation. Once it is recognised that the essential question at issue concerns the proper construction and application of s 70(1), rather than any question of competition between the rights of a landholder and public rights, reference to public rights of navigation provides no assistance to the task of statutory construction.

[70]

Reflecting the considerations that lead to the foregoing legal conclusions, on 13 February 2008 a National Apology was provided to the indigenous peoples of the Commonwealth[56]. Given the attention to, and nation-wide reflection upon, its making, terms and reconciliatory purposes, it is appropriate in my view for this Court to take judicial notice of that National Apology. The Court does not operate in an ivory tower. The National Apology acknowledges once again, as the preamble to the Native Title Act 1993 (Cth) already did[57], the wrongs done in earlier times to the indigenous peoples of Australia, including by the law of this country. Those wrongs included the non-consensual denial and deprivation of basic legal rights which Australian law would otherwise protect and uphold for other persons in the Commonwealth. In the case of traditional Aboriginals, these right included rights to the peaceful enjoyment of their traditional lands and to navigate and to fish as their ancestors had done for aeons before British sovereignty and settlement.
Although the National Apology was afforded on behalf of the Government of the Commonwealth, with support of the Opposition[58] and other political parties, and reflects an unusual and virtually unprecedented parliamentary initiative, it does not, as such, have normative legal operation. It is not contained in an Act of the Federal Parliament nor in a law made by any other Australian legislature with legislative powers. Yet it is not legally irrelevant to the task presently in hand. It constitutes part of the factual matrix or background against which the legislation in issue in this appeal should now be considered and interpreted[59]. It is an element of the social context in which such laws are to be understood and applied, where that is relevant. Honeyed words, empty of any practical consequences, reflect neither the language, the purpose nor the spirit of the National Apology.
In my opinion, the need for specific and clear legislation to extinguish any traditional legal rights of the indigenous peoples of Australia was already the law of this country, before the National Apology, for the reasons that I elaborated in Griffiths. The National Apology reinforces the appropriateness and timeliness of this approach to the interpretation of all relevant Australian legislation. This Court should adopt that approach and do so uniformly. In my opinion the majority reasons do that in this case. That is why I support the approach that they favour[60].

[74]

The relevant grants were made because a Land Trust (the first respondent) had been established in respect of "land constituting, or included within, an area of land described in Schedule 1" (s 10(1)(a) of the Act) and the Minister had recommended to the Governor-General that a grant of an estate in fee simple "in that land" be made to the first respondent (s 10(1) (tailpiece)). Pursuant to s 12(1)(a), in 1980 the Governor-General executed two deeds of grant of those estates "in the land" in accordance with the recommendation.
The question propounded by the appellants. Section 70(1) of the Act provides that: "[A] person shall not enter or remain on Aboriginal land." In the present circumstances the relevant meaning of "Aboriginal land" is "land held by a Land Trust for an estate in fee simple": s 3(1). The estates in land granted comprise land held by a Land Trust for an estate in fee simple. The appellants did not seriously contest that the grant included at least the soil on the landward side of the low water mark. One primary submission by the appellants, however, was that the grants did not include the waters above that soil as the tide ebbed and flowed. That is, the appellants submitted that the only "land" granted between high water mark and low water mark was the soil, not the waters above it, and that only the soil was "Aboriginal land". "It is not a grant of fee simple ... in the waters. It is a grant of an estate in land covered by water from time to time."
The appellants' reliance on s 73(1). The appellants' submission concentrated on s 73(1). As they pointed out, s 73(1)(a) gives the Legislative Assembly of the Northern Territory power to make laws in relation to "sacred sites ... including sacred sites on Aboriginal land"[65] (emphasis added). Section 73(1)(b) gives it power to make "laws regulating or authorizing the entry of persons on Aboriginal land"[66] (emphasis added). And s 73(1)(c) gives it power to make laws protecting or conserving wildlife including "wildlife on Aboriginal land" (emphasis added). However, s 73(1)(d) gives it power to make:

[79]

The Court said that what Aboriginals traditionally regarded as their land extended well beyond low water mark and well beyond any 2 kilometre buffer zone seaward of low water mark. The Court considered that the grant of a fee simple to low water mark gave limited recognition to that traditional view, but only limited recognition, because the s 73(1)(d) legislative compromise "denied a Land Trust the benefit of the inclusion of the 2 km seaward buffer zone in the definition of 'Aboriginal land'". However, the "grant to the low water mark (as distinct from the high water mark)", coupled with the facility in s 73(1)(d) for the Northern Territory Legislative Assembly to protect the traditional Aboriginal view by making laws preventing the entry of non-Aboriginals into the 2 kilometre buffer zone, afforded some recognition of that traditional view. This reasoning treated the waters of the sea above the soil landward of the low water mark as entirely distinct from waters of the sea seaward of the low water mark. The reasoning treated the former waters as being Aboriginal land, and the latter waters as "waters of the sea". The appellants submitted that the construction relied upon led to extraordinary results: it meant that s 73(1)(d) conferred power to make laws to prohibit the entry of persons into the 2 kilometre zone, and to control fishing and other activities there, but conferred no power to make laws on these subjects in the adjacent intertidal zone above the low water mark. Even assuming the Full Federal Court's construction to be correct, in that latter zone, while regulation would be possible by enacting a s 73(1)(b) law, prohibition by means of a law enacted by the Legislative Assembly would not be possible and prohibition would rest only with Land Councils, despite their limited capacity in that respect. But the appellants submitted that whether or not the construction led to extraordinary results, in any event the language of s 73(1)(d) did not support the distinction at the heart of that construction.

[110]

Risk v Northern Territory. It is necessary at once to enter a caveat about the use in this appeal of Risk v Northern Territory. In that case the issue was whether the expression "Crown land" in s 50(1)(a) of the Act, which was defined in s 3(1) as a species of "land in the Northern Territory", included the seabed below the low water mark of bays or gulfs within the limits of the Territory. It was held unanimously that it did not. The issue was thus different from that posed by the appellants in the present appeal, namely whether the expression "Aboriginal land", in its application to land which is above the low water mark but is covered by tidal waters as the tide comes in, applies only to the surface of the soil or extends to the waters above it. Hence, what McHugh J and Callinan J said on the latter issue consisted of obiter dicta, and in some respects what they said is better adapted to the issue before the Court in that case than the issue before it in this. In particular, the Court in that case did not have to resolve, or seek to resolve, what were described in the plurality judgment as two unargued questions[86]. One was whether "a grant of an estate in fee simple in the seabed would permit the grantee to prevent the exercise of public rights to fish or to navigate in the waters above that part of the seabed". The other concerned the construction of s 70(1). An aspect of the first question does arise in the present case, and so does the second question. Being dicta, the observations of McHugh J and Callinan J are not binding, any more than a statement to the contrary made in the plurality judgment is[87].
Reports of Aboriginal Land Commissioners. Another caveat must be entered in relation to opinions expressed in the reports of Federal Court Judges or Judges of the Supreme Court of the Northern Territory sitting as Aboriginal Land Commissioners. While the carefully considered opinions of distinguished lawyers delivered on a solemn occasion, particularly in a field of which they have specialised knowledge, can, with respect, have great value, they are in a different category from statements of the law made in the course of exercising judicial power. Although those opinions merit careful attention, they are in the end only valuable to the extent that their reasoning is persuasive.

[111]

The arguments of the appellants described above were put as part of their written submissions in chief, although to a limited extent they were developed orally, and some of the points made by the appellants were briefly put by the Commonwealth orally. However, while the first three respondents dealt at length with the appellants' submissions going to other issues, they offered few arguments having any relevance to the arguments of the appellants summarised above[88], and none which grappled with their detail. They did not mention, let alone deal with, the relevant paragraphs of the appellants' written submissions on that subject. In particular, the first three respondents did not refer critically to the paragraphs in Risk v Northern Territory setting out the reasoning of McHugh J and Callinan J on which the appellants relied. They did rely on a dictum in the plurality judgment in Risk v Northern Territory[89] which was contrary to the dicta of McHugh J and Callinan J, but they did not offer specific submissions criticising either the reasoning in the dicta of McHugh J and Callinan J, or what the appellants said about the reasoning in those dicta in their submissions in chief. Thus they did not offer any argument explaining directly and in terms why that reasoning was wrong. Although this silence does not of itself make the appellants' submissions correct, reasons will be given below why the appellants' submissions should be accepted[90]. But first it is necessary to deal with the arguments which the first three respondents did advance in relation to the issue propounded by the appellants.
Reformulation of question. The first three respondents offered a refinement of the principal question propounded by the appellants. The first three respondents said the question was not whether the first respondent owned "the flowing water" above the land on the landward side of the low water mark: the question was rather whether the first respondent could bring an action in trespass against someone who brought a vessel onto those waters, or whether that person contravened s 70(1). Even if the question is so reformulated, however, the answer must be adverse to the first three respondents.
Consequences of particular construction of s 73(1)(d). The first three respondents said that if the appellants' contention that non-Aboriginal persons could enter the waters covering the soil above low water mark was correct, the effect of s 73(1)(d) would be "odd" because it would be possible under s 73(1)(d) to make laws making the area between low water mark and points 2 kilometres seawards "closed seas". The first three respondents said:

[118]

The appellants were correct to submit that the grant of "land" down to the low water mark granted the soil, not the tidal waters which covered the area from high water mark to low water mark, and that only the soil was Aboriginal land. That is so for the following reasons.
Ordinary meaning of "land". First, "land" ordinarily means the solid portion of the earth's surface and, in the case of land extending to low water mark, does not include the waters flooding over it and ebbing from it with the tides[95].
No indications pointing away from the ordinary meaning of "land". Secondly, there are no indications in the Act that the word "land" in that legislation bears a different meaning from the ordinary meaning[96].
Positive indications supporting the ordinary meaning of "land". Thirdly, apart from s 73(1), there are several positive indications that "land" bears its ordinary meaning in the legislation. None, taken separately, is decisive, but when taken together they have some force. These indications are found in s 50(1) read with the definitions in s 3(1) of "traditional land claim" and "traditional owners" in relation to the entitlement to forage[97]; s 11[98]; s 18[99]; s 23(2)[100]; s 46[101]; s 50(3)(c)[102]; and s 50(4)[103].
The consequences of s 73(1). Fourthly, the structure of s 73(1) supports the ordinary meaning. Paragraphs (a)-(c) of s 73(1) refer specifically to "Aboriginal land". Section 73(1)(d) also refers to "Aboriginal land", but contrasts that phrase with the phrase "waters of the sea". The phrase "waters of the sea" is expressed to include the territorial sea (ie which may comprise waters on the seaward side of low water mark) but also includes waters in the area between the landward side of low water mark and the seaward side of high water mark. Pursuant to that construction, the waters on the landward side of low water mark are vertically "adjacent" because they are above Aboriginal land, and the waters on the seaward side are horizontally "adjacent" because they are next to Aboriginal land[104]. That construction accords with a standard usage in Commonwealth legislation[105]. Since the expression "waters of the sea" applies to the waters on either side of low water mark, s 73(1)(d) makes special provision for the Legislative Assembly of the Northern Territory to legislate for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition. This would not be necessary if those waters were themselves Aboriginal land, or if rights of entry and use which were exclusive to Aboriginals applied in those waters on the ground that the soil beneath them was Aboriginal land which had been granted to a Land Trust in fee simple[106].

[121]

The grants to the first respondent did not grant title to the waters above the land granted landwards of the low water mark, and did not create exclusive rights in those waters. The waters were not Aboriginal land, and s 70(1) is not contravened by persons who fish in or traverse those waters. It follows that no declaration which depends on the contrary of either of those propositions should be made. Neither the relief sought at trial nor the relief granted in the Full Federal Court should be granted either.
The appeal should be allowed and the order of Mansfield J dismissing the further amended application should be restored. By reason of a condition on which special leave was granted, the appellants should pay the first, second and third respondents' costs of the appeal.
KIEFEL J. The first respondent, the Arnhem Land Aboriginal Land Trust ("the Land Trust"), is an Aboriginal Land Trust established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"). On 30 May 1980 the Governor-General executed Deeds of Grant to the Land Trust to hold lands "in Fee Simple subject to the provisions of [the Land Rights Act]". The description of the land and islands in the grants does not correspond with that of the Arnhem Land (Mainland) and Arnhem Land (Islands) in Sched 1 to the Land Rights Act, but it is not disputed that the areas are the same. The boundary of the Mainland grant extends seaward of the coast to the low water mark and by straight lines joins the seaward extremities of estuaries, rivers and streams. The grant to the low water mark, of an area which includes Blue Mud Bay, takes in the intertidal zone.
Since the 1990s issues concerning the right of persons to take fish in the Blue Mud Bay area, pursuant to licences issued by the Director of Fisheries of the Northern Territory under the Fisheries Act (NT), have been litigated[108]. Declarations were sought as to the exclusive rights of the traditional owners to enter and occupy the lands and waters and that the Land Trust was entitled to prevent persons from entering the land and waters or taking fish or aquatic resources. Members of the Yolngu people also sought and obtained a determination of native title to part of the area the subject of the grant[109].
A Full Court of the Federal Court (French, Finn and Sundberg JJ) ordered, subsequent to that determination, that it be amended to delete reference to the native title holders' rights to make decisions about access to, and the use of, the intertidal zone and outer waters because, at the time of sovereignty, those rights were inconsistent with the public's right of access for fishing and navigation[110]. That order is not in issue on this appeal.
In the proceedings brought with respect to the grants under the Land Rights Act, their Honours declined to follow an earlier decision of a Full Court of the Federal Court in The Commonwealth v Yarmirr[111]. It had been applied by judges of that Court as holding that a grant of fee simple under the Act did not confer upon a Land Trust the exclusive right to control access to the sea over the tidal foreshore[112]. That aspect of the decision was not considered by this Court in The Commonwealth v Yarmirr[113]. The Full Court in this case was satisfied that a grant of an estate in fee simple under and for the purposes of the Land Rights Act conferred upon the Land Trust a right to exclude others from the intertidal zone, including those seeking to exercise a public right to fish there[114]. Their Honours considered that the Act contained a power by which the Land Trust could itself grant a licence which would permit fishing in the zone[115]. It followed that the Fisheries Act would have to be read down if it were to operate concurrently with the Land Rights Act[116].

[122]

In 1931 an area of land was proclaimed as the Arnhem Land Reserve "for the use and benefit of the aboriginal native inhabitants of North Australia" under s 102 of the Crown Lands Ordinance 1927 (NT). The Reserve was described, in the schedule to the proclamation, as bounded by the "coastline". No reference was made to high or low water marks. In 1963 four reserves were consolidated under a proclamation made under the Crown Lands Ordinance 1931 (NT). This followed upon the receipt of the Yirrkala Report, by a Committee established in response to a petition from the Aboriginal people of Yirrkala who made complaints about the use of land in the Reserve for mining purposes[117]. Sackville J, in Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust[118], observed that the reason for the revocation of the proclamations of the four grants, prior to their consolidation by proclamation on the same day, 28 October 1963, appeared to be that the Yirrkala Report cast some doubt on their validity. The 1963 proclamation identified the boundaries of the lands by reference to the low water marks of various rivers and the Timor and Arafura Seas and used straight lines to join the extremities of the banks of rivers, streams and estuaries. It was these reserve lands which the Land Rights Act came to deal with.
Provision was made to control access to Aboriginal reserves under successive Ordinances. In each of the three Ordinances referred to on this appeal[119] an offence was created where a person, not being an Aborigine or a specified official, entered or remained upon a reserve[120]. The Full Court of the Federal Court observed that the only early attempt to regulate or proscribe entry by sea into an area adjacent to a reserve, made it an offence to enter the "territorial waters" adjacent to a reserve[121]. The term was not defined, was criticised for its uncertainty and was not re-enacted[122].
The Commonwealth Government established the Woodward Inquiry following upon the unsuccessful attempts by Aboriginal people to prevent bauxite mining and treatment on the Gove Peninsula in Arnhem Land. In Milirrpum v Nabalco Pty Ltd[123] Blackburn J rejected the claim that their traditional rights in land had been unlawfully invaded by the mining company which had been granted mining rights by the Commonwealth Government. Brennan J observed in R v Toohey; Ex parte Meneling Station Pty Ltd[124] that this judgment was the stimulus for the Inquiry.
The Commissioner, Mr Justice A E Woodward, was appointed to inquire into and report upon the appropriate means to recognise and establish the traditional rights and interests of Aborigines in relation to land and to satisfy their reasonable aspirations to rights in or in relation to it and as to arrangements for vesting title to land in the Northern Territory then reserved for the use of Aboriginal inhabitants of the area[125]. Woodward J considered that the provision of land might not only preserve the spiritual link of Aboriginal persons to their land, it might also be of economic benefit to them[126].
One of the key recommendations of the Commissioner's second report, of April 1974, was that land comprised in the reserves, including the Arnhem Land Reserve, should be vested in a body such as an incorporated trust[127], which would hold the lands for the benefit of those Aborigines having traditional rights[128]. It was proposed that the Land Trust, with the consent of the regional Land Council, would be able to grant leases, licences and permits and, with the consent of the Minister, grant rights for the purposes of mineral or petroleum search or recovery, tourism and other approved purposes[129]. Regional Land Councils would conduct negotiations concerning the commercial use of the land[130].
It is to be recalled that the recommendations made in the Woodward reports occurred before recognition by the common law of native title[131] and before provision was made by the Native Title Act 1993 (Cth) for statutory recognition and the determination of the existence of native title rights and interests. In relation to the title to the land to be granted under the proposed legislation Woodward J said that he regarded any form of leasehold title as inadequate[132]. He considered title expressed as fee simple to be preferable, and explained[133]:

[129]

The original Aboriginal Land (Northern Territory) Bill 1975 (Cth) more closely reflected the aspirations of the Second Woodward Report. It had not been passed when the Parliament was prorogued on 11 November 1975. The new government introduced and read two Bills ("the 1976 Bills"). The first[140] was the subject of significant amendments which were ultimately incorporated into the Aboriginal Land Rights (Northern Territory) Bill 1976 [No 2] (Cth).
In the 1975 Bill the function of the Aboriginal Land Commissioner, to be appointed under the proposed Land Rights Act to deal with claims to land, was to inquire not only into the desirability of securing land for the use of its traditional owners, but to ascertain and report to the Minister on land which might satisfy the needs of Aboriginal people[141]. In the Second Reading Speech for the first of the 1976 Bills the Minister for Aboriginal Affairs referred to "the predominant position of the traditional owners" as now being defined and suggested that this had not been made clear in the 1975 Bill[142]. The focus of the Land Rights Act, upon the recognition and protection of traditional land rights, is apparent from many of its provisions.
Section 50(1)(a) of the Land Rights Act provides that an application may be made to an Aboriginal Land Commissioner by or on behalf of Aboriginals "claiming to have a traditional land claim" to an area of land. That land must be Crown land. The general definition of "Crown land" is "land in the Northern Territory"[143]. The report by the Commissioner to the responsible Minister, in connection with a claim, is required to have regard to the strength of the traditional attachment of the claimants to the land[144]. "Traditional Aboriginal owners", in relation to land, is defined to mean a local descent group of Aboriginals who have common spiritual affiliations to the land and are entitled by Aboriginal tradition to forage as of right over the land[145]. A grant of land may be made to an Aboriginal Land Trust on the recommendation of the Minister[146]. Aboriginal Land Trusts established under the Land Rights Act are to "hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned"[147].
Whilst the focus of the Bill as enacted shifted to the protection and maintenance of traditional uses of the land, the basic model of landholding recommended in the Second Woodward Report is retained in the Land Rights Act. A grant of land under the Act is to be of an estate in fee simple[148] to a Land Trust, which holds the title as trustee[149]. A deed of grant may be registered, according to its tenor[150]. The Deeds of Grant in question are expressed to be subject to the provisions of the Act.
The Land Rights Act protects pre-existing rights of use and occupation[151]. It reserves certain rights and requires them to be expressed in a grant. The rights to minerals which are vested in the Commonwealth or the Northern Territory remain with them[152]. Provision is made for the grant of licences to explore for or mine minerals[153]. A grant is required to exclude roads over which the public has a right of way[154].
The Land Rights Act refers to a Land Trust as exercising its powers as owner of the land[155]. Section 19(1), however, provides that "[e]xcept as provided by this section or section 19A or 20, a Land Trust shall not deal with or dispose of, or agree to deal with or dispose of, any estate or interest in land vested in it". Section 19A refers to the grant of a head lease over a township and s 20 to leases in compliance with obligations of the Commonwealth. The ability of the Land Trust to deal with interests in the land less than freehold interests is further regulated by s 19. That section permits the grant of an estate or interest in the land by a Land Trust to certain persons and for specified purposes[156] or the grant of an estate or interest in the land for any purpose at the direction of the Land Council and with the consent of the Minister, although consent is not necessary where the term created is less than 40 years[157]. An estate or interest in land includes a licence granted in respect of that land[158].
The Land Rights Act deals expressly with the control of entry upon Aboriginal land. Provision is made for a Land Trust, at the direction of the relevant Land Council, to authorise entry upon Aboriginal land for a specified purpose that is related to an estate or interest which it has granted[159]. Section 69 contains a prohibition upon a person entering or remaining upon land in the Northern Territory that is a sacred site. The general provision with respect to entry upon land the subject of the grant is s 70(1). It assumes importance on the appeal. It provides that "[a] person shall not enter or remain on Aboriginal land". "Aboriginal land" is relevantly defined[160] to mean "land held by a Land Trust for an estate in fee simple". An exception is provided by sub-s (2) where a person has an estate or interest in the land[161]. Sub-section (4) entitles a person to enter and cross Aboriginal land for the purpose of access to land in which they have an estate or interest, where there is no other practical way of gaining access to it. It is a defence, in proceedings for an offence under sub-s (1), that the person enters or remains on the Aboriginal land, "in performing functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory"[162].
Section 73 is of particular significance to the issues on the appeal. It is entitled "Reciprocal legislation of the Northern Territory". No reference will be found to the matters for which it provides in the Woodward reports. It gives law-making power to the Legislative Assembly of the Northern Territory with respect to the protection of sacred sites and for the protection of wildlife, including wildlife on Aboriginal land[163]. Importantly, for present purposes, it gives power to make laws with respect to entry upon Aboriginal land and the waters of the sea adjoining that land in these terms:

[141]

The owner of intertidal lands has the exclusive right of fishing in the waters overlying the lands and to grant that right to another[178]. The argument before the Full Court involved whether that right was subjugated to the paramount right of the public to fish in public waters, which is recognised by the common law[179]. That public right is amenable to abrogation or regulation by statute[180]. The issue identified by their Honours, the resolution of which would answer this question, was whether the Land Trust had the right to exclude the public from entry upon the land and the taking of fish from the waters above it[181]. Their Honours clearly considered that whatever rights the Land Trust had with respect to fishing in the waters were inextricably linked with its right to exclude. The view taken by their Honours was that the Land Rights Act both recognised and enforced such a right and it was effective to abrogate any public rights to fish, assuming that they existed[182].
The Full Court did not determine the question in favour of the Land Trust by reference to the grant to it of an estate in fee simple of the intertidal lands alone[183], although the grant nonetheless assumes importance in their Honours' reasoning. It is apparent that their Honours considered that the Land Rights Act, in its purposes and its provisions, provides a statutory acknowledgment of the Land Trust's right, as owner, to exclude entry[184]. Section 70 was considered to be of "decisive significance" by their Honours, its language reflecting and reinforcing the extent of the Land Trust's rights[185]. It did not admit of a qualification that would exempt a person purporting to exercise a public right to fish in the tidal zone[186]. The public rights asserted had no place in the legislative scheme of that Act, their Honours concluded[187].
In arriving at that opinion their Honours saw s 70, and other provisions of the Act, as furthering the recommendations in the Second Woodward Report, which addressed directly the question of entry onto Aboriginal land[188]. It will be recalled that Woodward J identified the power of exclusion as an important incident of the Aboriginal ownership to be dealt with in the legislation[189]. It is necessary to consider whether the Land Rights Act gives effect to that recommendation or whether it altered that right, as it did with other incidents of a Land Trust's ownership, by itself providing for control of entry.
The fee simple is the largest estate in land. It has come to resemble ownership and its proprietor is commonly called the owner of the land[190]. It is, for almost all practical purposes, the equivalent of full ownership of land[191]. This does not mean that it cannot be the subject of encumbrances[192]. The fee simple estate is different from traditional Aboriginal ownership of land, which has been described as "primarily a spiritual affair rather than a bundle of rights"[193]. It may be inferred that Woodward J chose the fee simple title as the subject of a grant under the proposed legislation for the security and certainty it would provide and because he foresaw the possibility of future dealings in the land.
It is apparent from a number of provisions of the Land Rights Act that the rights of a Land Trust as owner of the land the subject of a grant are modified. The grant itself describes the estate or interest in the land as being in fee simple subject to the provisions of the Act. It is that interest which is the subject of registration.
It was always intended that the estate or interest the subject of the grant would not completely accord with one of fee simple. This may be seen by the denial of that estate's essential characteristic, alienability. This was one of the recommendations of Woodward J. The Land Rights Act, as passed, contained further reservations with respect to the land and exclusions which altered the incidents of ownership. It provides for the continuing rights of third parties. It makes detailed provisions restricting and regulating such dealings as there may be in leasehold and other interests. It provides for the making of laws to protect sites and wildlife on the land and provides for the control of entry onto Aboriginal land and waters of the sea.
In Davies v Littlejohn[194] Isaacs J said that the statute there in question shaped and stated the characteristics of the tenure it created. Although his Honour was not speaking of a statute which permits the grant of land according to an estate known to land law, as is here the case, the statement of the effect of statutory provisions is appropriate to a grant of an estate in fee simple with the reservations and exceptions made by the Land Rights Act. As Gummow J pointed out in Wik Peoples v Queensland[195], whilst a statute may appear to adopt general law elements and principles in a new regime, in truth it may be seen to do so only on particular terms.
These restrictions, and the assumption of control over the lands the subject of a grant, are not contrary to the purposes of the Land Rights Act. Its overall purpose is declared by its long title to be to benefit Aboriginal people, as the Full Court observed[196]. It is evident from the provisions of the Act that it does so by recognising and protecting traditional rights of use with respect to the land. This extends to the protection of such rights with respect to waters of the sea adjoining Aboriginal lands by s 73(1)(d). The Act also provides for the creation of some interests in the land by the Land Trust, albeit regulated, and that Land Councils might benefit by activities such as mining upon the land[197]. These powers may not be as extensive as envisaged by Woodward J. The objectives of the Act do not require that the Land Trust be able to exercise all of the powers of an owner. The later inclusion of s 73 shows a legislative intention to leave many such matters as issues of governance by the Northern Territory, so long as traditional rights of use are protected.
It would not therefore seem to be a correct approach, to the question of the Land Trust's power to exclude or authorise entry, to view it as an owner, assume that it retains the powers of an owner and read the statute in this light. Regard must be had to the provisions of the Land Rights Act and as to how the matter of entry is there dealt with.
There is a specific reference, in s 19(13), to the Land Trust being able to authorise persons to enter or remain upon Aboriginal land. It arises when it has granted an estate or interest in the land of the kind permitted by s 19 and pursuant to its requirements. The authority is limited to the purpose that is related to that estate or interest. A licence in respect of land is such an interest (s 19(13)). It was this provision to which the Full Court referred in connection with the possible authorisation of persons, by the Land Trust, to enter upon the foreshore and to fish there. Section 19(13) does not refer to that activity. Neither it nor s 19(11) provides a power of general permission or prohibition to a Land Trust.
Section 70(1) contains the general prohibition of entry onto Aboriginal land. It does not reinforce the existence of an authority, on the part of the Land Trust as owner, to exclude entry onto Aboriginal land. It does not, for example, state that there shall be no entry and no person shall remain upon the land without the permission of the owner. It assumes the power to control entry and exercises it by the express prohibition in the section, in the way that entry has historically been denied to reserves. And s 70 creates an offence in the event of entry. The likelihood that s 70 was intended to support a Land Trust's power as owner is further diminished by the provision for the making of Northern Territory laws with respect to entry upon land in s 73(1)(b).
Section 73(1)(b) provides that the Legislative Assembly of the Northern Territory may make laws which regulate or authorize the entry of persons onto Aboriginal land. It is addressed to the same subject as s 70. Section 73(1)(a), which permits the making of laws to protect and regulate or authorise the entry of persons onto sacred sites, is similarly addressed to the subject of s 69.
In argument on the appeal it was suggested that it would be a defence to s 70(1) if a person entered upon Aboriginal land in accordance with a law of the Northern Territory of the kind referred to in s 73(1)(b), by reason of s 70(2A). Such an approach assumes that the prohibition in s 70 remains operative when laws of the kind referred to in s 73(1)(b) have been enacted. The defence would then afford an excuse. A preferable approach would be to construe s 70(1) together with s 73(1)(b). The language and structure of the sections strongly suggest this, as does their legislative history. They should be construed on the basis that they are intended to give effect to harmonious goals[198]. That objective is not achieved by reading the Act to provide for the making of laws which authorise or regulate entry onto land, and at the same time give effect to a prohibition on entry. It is achieved by reading s 70(1) as subject to the qualification that, where laws of the kind referred to in s 73(1)(b) are made, an exception is created to s 70. Such a statutory provision or effect is not uncommon[199]. If no such laws exist, the prohibition is effective. At present such laws do exist, those in Pt II of the Aboriginal Land Act. The effect is that s 70(1) is not contravened and no offence is committed.
The Land Trust does not have the right of an owner to exclude persons from the land the subject of the grant. Section 70 does not give effect to such a right. The provisions of the Land Rights Act have altered that right. The effect of s 70, together with laws of the kind referred to in s 73(1)(b), is that entry is not prohibited where there is a scheme of regulation or authorisation under a Northern Territory law. That is provided by s 5(1) and (2) of the Aboriginal Land Act, which give power to the Land Council, and the traditional Aboriginal owners of an area, to issue permits for entry. The recommendation to that effect in the Second Woodward Report is implemented.
Both s 70 and Pt II of the Aboriginal Land Act are concerned with "Aboriginal land" as it is defined in the Land Rights Act. The word "land" is not defined by the Act. If Aboriginal land extends to waters over the intertidal zone, s 70 is not presently effective to render entry upon them unlawful. If those waters are included in Aboriginal land, entry upon them is subject to a permission which may be granted under the Aboriginal Land Act. Any question concerning the regulation of any extant public right to fish must be considered in that context. There is, however, a question whether the term "Aboriginal land" is intended to include those waters. If it does not, the question then arises whether fishing in waters in the intertidal zone is regulated by laws made by reference to s 73(1)(d), namely Part III of the Aboriginal Land Act.
Their Honours in the Full Court held that, if the waters are Aboriginal land, the power granted by s 73(1)(b), to enact laws regulating entry of persons on Aboriginal land, does not extend to a power to make laws with respect to fishing. This activity is dealt with by s 73(1)(d)[200]. Their Honours recognise the distinction made, in s 73, between Aboriginal land and waters of the sea. Their Honours, however, considered that the laws which could be made under s 73(1)(d) were not intended to operate with respect to waters lying over Aboriginal land in that zone. They saw s 73(1)(d), in its reference to waters of the sea, as "including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land" as giving effect to the buffer zone which had been recommended in the Second Woodward Report, although the waters are not called Aboriginal land in the Land Rights Act[201]. Their Honours were influenced to their conclusion by the view that s 73(1)(d) presupposes a particular boundary with Aboriginal land, for otherwise the two kilometre zone would move with the tide[202]. Their Honours took that boundary to be that of the grant.
Section 73(1)(d) is not without its difficulties in interpretation. If the Full Court's construction were the correct one it would mean that laws of the kind referred to in s 73(1)(d), such as the sea closure provisions in Pt III of the Aboriginal Land Act, would operate from the low water mark, but there would be no such regime for waters when they inundate the intertidal zone. It would suggest the retention of an exclusive right in the Land Trust to fishing in the waters over the zone when it does not have the right to control entry to the land under the waters. The Act contains no reference to such a right pertaining to those waters. It does not provide for the Land Trust dealing with such a right, whereas it makes detailed provision with respect to land. The Act does not itself assume control of entry of persons onto those waters or regulate to prohibit fishing in them, it makes provision for that control in s 73(1)(d). Section 73 is a clear expression of statutory intention that entry onto Aboriginal land and sacred sites on that land, the protection of wildlife on Aboriginal land and entry onto waters of the sea adjoining them are matters which can be dealt with by the Legislative Assembly of the Northern Territory. That legislature has done so. In providing for that legislative jurisdiction s 73 requires that such laws protect traditional Aboriginal rights of access and use. By that means the legislation would operate consistently with the principal purpose of the Land Rights Act.
"Land" is ordinarily understood to be the solid part of the earth's surface, as distinguished from the sea[203]. Apart from s 73(1)(d)[204], the provisions of the Land Rights Act concern land in this sense. This was observed in the joint judgment in Risk[205]. A number of provisions indicate that this is the case. They include provisions concerning the occupation of the land[206], the extraction of minerals from it[207], and roads constructed upon it[208]. The title given by a grant is referable to land. The grant is made in recognition, in part, of an Aboriginal group's traditional right to forage. As McHugh J noted in Risk[209], the more natural meaning of that word involves the search for food on land. An application for a grant is with respect to Crown land, which is defined by the Act as land in the Northern Territory.
Sections 73(1)(d) and 74A(1) are the only provisions in the Land Rights Act which refer to sea waters or to fishing. Section 73(1)(d) draws a clear distinction between Aboriginal land and waters of the sea. This distinction was adverted to in Risk[210], in connection with the question whether the words "land in the Northern Territory" include the seabed. It was held that it did not. McHugh J observed that s 73(1)(d) operates upon the assumption that the "waters of the sea" are not Aboriginal land within the meaning of s 3 of the Act and therefore not the subject of an application under s 50[211]. Callinan J was also of the view that the reference to land in the Act did not include the sea[212]. This accords with the treatment elsewhere in the Act of Aboriginal land as land in the ordinary sense of the term.
Reading "Aboriginal land" as referrable to land over which tidal waters do not flow, dry land in that sense, gives effect to the distinction between land and waters in their ordinary and natural meaning. "Waters of the sea" would ordinarily be understood to refer to all such waters, regardless of whether they cover tidal lands at times[213]. Such a construction of s 73(1)(d) would not deny the meaning of Aboriginal land as referable to land the subject of the grant, as it is defined. It would maintain the distinction created by the section. It would give effect more fully to the meaning of the term "waters of the sea". I observe that in sea closure determinations the term has been taken to include waters which overlie the boundaries of Aboriginal land[214]. The application of the construction would take the two kilometre zone, the subject of the powers of closure under the Aboriginal Land Act, from the high water and not the low water mark. The waters of the sea would be taken to adjoin Aboriginal land which was not inundated by waters from time to time. McHugh J in Risk appears to have assumed that the line should be taken from the low water mark, but it was not necessary to the matter decided and his Honour was not required to consider the operation of s 73(1)(d).
It is not necessary to the purposes of control of entry for fishing and other activities in waters of the sea that a line be taken from the boundary of the grant land. To the contrary, it would achieve no statutory purpose and run counter to the purpose of the protection of traditional rights to fish. The Land Rights Act did not establish the buffer zone referred to in the Woodward reports, one which extended from the boundary of the grant and which included the sea as part of Aboriginal land. It did not identify that boundary as a point of reference. It drew a distinction between waters of the sea and Aboriginal land, which is to say land the subject of the grant.
It is unlikely that the legislation enacted pursuant to s 73(1)(d) was not intended to apply to waters over intertidal zones. One regime is likely to have been intended with respect to all waters of the sea. This was the view expressed by Mansfield J in Arnhemland Aboriginal Land Trust v Director of Fisheries (NT)[215].

At a glance

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