Risk v Northern Territory of Australia

Background 40 On 30 November 1999 the second respondent (Olney J), acting as Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"), made the following determination: "The Aboriginal Land Commissioner determines that so much of the area claimed in the Beagle Gulf Area Land Claim (Application No 191) as is adjacent to, and seaward of, the low water mark of the seacoast of the Northern Territory or of any island adjacent thereto including the bed of any bays or gulfs of the mainland or of any such islands is not land which may properly be the subject of an application pursuant to s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976." 41 The determination was based on his Honour's conclusion that "land" in the Northern Territory, for the purposes of the Land Rights Act, meant "the solid part of the earth's surface which is above the line of the low water mark" and therefore excludes the seabed of any bays or gulfs adjoining the mainland or any islands within the Northern Territory. 42 The applicant has applied to review the determination pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and ss 39B(1) and 39B(1A) of the Judiciary Act 1903 (Cth). Senior counsel for the applicant outlined the ground for review as being that Olney J erred in law in concluding that the seabed of bays and gulfs within the Northern Territory may not, properly, be the subject of a traditional land claim to "an area of land" under s 50(1)(a) of the Land Rights Act. The applicant contends that the seabed of any bay or gulf within the Northern Territory is "an area of land" within the Northern Territory and can therefore be the subject of a traditional land claim under the Land Rights Act. The question arising in the present matter had not previously arisen for decision. 43 The term "land" was not defined in the Land Rights Act. However, s 22(1)(c) of the Acts Interpretation Act 1901 (Cth) provides: "(1) In any Act, unless the contrary intention appears: … (c) Land shall include messuages tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein." 44 The question of whether the definition of land in s 22(1)(c) includes a part of the seabed was considered in Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199. Goldsworthy Mining concerned the entitlement of a taxpayer to claim allowable deductions for improvements which were required to be made under the provisions of a lease "of land" used for the purpose of producing assessable income. In considering whether a dredging lease of part of the seabed of the Port Headland harbour was a lease of land, Mason J (at 210-211) said: "There is no reason for thinking that, at common law, a lease cannot be granted of a portion of the sea-bed, provided that the property the subject of the grant is defined with sufficient certainty. There may be some question whether the sea-bed answers the description of 'land' in every sense in which that word is used. But in general the word in its legal signification includes any ground, soil or earth (Halsbury's Laws of England, 3rd ed., vol. 32, p. 249). There is a long history of leases for mining purposes of strata of land underlying the sea, which supports the view that a lease may be granted of portion of the sea-bed." 45 His Honour then considered the definition of "land" in s 22(1)(c) of the Acts Interpretation Act at 215: "The word 'land' is defined, in the absence of a contrary intention, by s 22 of the Acts Interpretation Act 1901-1966, in such wide and general terms as would enable it to comprehend a part of the sea-bed. There is, I think, nothing in the context of s. 88(2) which would require that it should be read in a more restricted sense. I conclude, therefore, that the dredging lease was a lease of land within the meaning of s. 88(2)." 46 On appeal ((1975) 132 CLR 463) the Full Court affirmed the decision of Mason J to disallow the taxpayer's claim to be entitled to an allowable deduction on the ground that the expenditures in making improvements were not deductible because the land leased had not been used for the purpose of producing assessable income. Although the Commissioner did not contend that a lease of a portion of the seabed was not a lease of land, the judgments on appeal appeared to assume the correctness of the views of Mason J on that issue. 47 The issue also arose in Dampier Mining Co Ltd v Federal Commissioner of Taxation (1981) 147 CLR 408. Although the Commissioner did not argue that a lease of a portion of the seabed was not a lease of land, none of the judgments cast any doubt on the view expressed by Mason J in Goldsworthy Mining that a dredging lease in respect of the seabed was a lease of land: see Gibbs CJ at 413, Stephen J at 418, Mason and Wilson JJ at 427-428 and Murphy J at 439. Mason and Wilson JJ (at 428), in discussing the right of exclusive possession conferred under the leases to part of the seabed, observed that "it is somewhat artificial to speak of the seabed as 'land'". Notwithstanding that observation, it was not suggested that the broad inclusive definition of land in s 22(1)(c) did not apply to the seabed. 48 In the absence of any authority doubting the correctness of Mason J's observations in Goldsworthy Mining concerning the meaning of "land" in s 22(1)(c) of the Acts Interpretation Act, it is appropriate to adopt his Honour's approach to s 22(1)(c). Accordingly, the question to be determined is whether there is anything in the context of s 50(1)(a) of the Land Rights Act which requires that the words "an area of land" be read in a more restricted sense, so as to exclude from its ambit claims to any part of the seabed of the bays and gulfs within the Northern Territory. For present purposes the context includes other provisions of the Act, its preamble, the pre-existing state of the law, other statutes in pari materia and the mischief which the statute was intended to remedy: see Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 per Viscount Simonds, K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 per Mason J. The Northern Territory 49 The limits of the Northern Territory were considered at first instance by Olney J in Yarmirr v Northern Territory (1998) 82 FCR 533 at 551-558 and on appeal by the Full Court in Commonwealth v Yarmirr (1999) 168 ALR 426 at 449-471 per Beaumont and von Doussa JJ and at 534-535 per Merkel J. 50 The limits of the Northern Territory were defined in Letters Patents dated 6 July 1863 that annexed the territory, which now constitutes the Northern Territory, to South Australia. This situation still existed at the time of Federation on 1 January 1901. The Northern Territory was surrendered to the Commonwealth in 1911 and remained under Commonwealth control until the granting of self government in 1978. The Letters Patent defined the limits of the Territory as including "the bays and gulfs" within the defined areas. While there may be some dispute about whether particular areas of sea constitute a "bay" or a "gulf", any bay or gulf within the area defined has, since 6 July 1863, been part of the Northern Territory. Accordingly, when the Land Rights Act was enacted in 1976 the territorial limits of the Northern Territory included the bays and gulfs, as well as the islands, within the area described in the Letters Patent. Generally, the limits otherwise only extended to, but not beyond, the low water mark of the coastline of the mainland and those islands. The decision of Olney J 51 Olney J, correctly in my view, found that dictionary definitions of "land" were of little assistance in determining whether "an area of land" includes the seabed of bays and gulfs, because they were equally open to construing "land" as extending to either the whole of the earth's solid surface (including the submerged part), or only to the exposed part. 52 His Honour also found the general definition of "land" in s 22(1)(c) of the Acts Interpretation Act to be of little assistance because it did not address the question of whether land includes the seabed of bays and gulfs. Unfortunately, it does not appear that his Honour was referred to the decision of Mason J in Goldsworthy Mining Ltd that the definition of "land" in s 22(1)(c) can include the seabed. 53 Olney J made extensive references to the reports of Justice Woodward, which formed the basis for the introduction of the Land Rights Act, and to the subsequent legislative history of the Land Rights Act and said at [25]: "Paragraph 91 of the final Woodward Report recommended that the proposed legislation include a definition of Aboriginal land which included both offshore islands and waters within 2 kilometres of the low tide line, and although the drafting instructions do not contain such a definition, the recommendation is reflected in the proposed Schedule 3. Not only did governments both before and after November 1975 not act on this recommendation, the law ultimately passed by Parliament gave the Northern Territory responsibility for controlling access to the areas of sea adjacent to Aboriginal land which Justice Woodward recommended should be vested in the relevant Aboriginal communities as part of their land. In these circumstances Parliament answered unequivocally in the negative the Aboriginal communities' question referred to at para 205 of the final Woodward Report namely, whether their land rights will extend out to sea." 54 His Honour expressed his conclusion at [26]: "Having regard to the context in which the Land Rights Act was developed, (including the comments and recommendations in the Woodward Reports) the specific provisions of the Act, (particularly those of the land descriptions in Schedule 1) and the absence of any defining provision that would extend the meaning of 'land' to include the bed of bays and gulfs which are part of the Northern Territory, I am of the view that for the purposes of the Land Rights Act the words 'land in the Northern Territory' mean the solid part of the earth's surface which is above the line of the low water mark. In reaching this conclusion I have not overlooked the fact that the Land Rights Act is clearly beneficial legislation which in the case of doubt should be construed in a manner favourable to those for whose benefit it was passed. In this case there is no basis to doubt what Parliament intended. Accordingly, I am of the opinion that the bed of any bays or gulfs of the mainland of the Northern Territory and of any islands adjacent to any part of the mainland, is not within the ambit of the definition of 'Crown land' in s 3(1) of the Land Rights Act and cannot be the subject of an application made under s 50(1)(a) of that Act. It follows that the Aboriginal Land Commissioner has no function to perform in relation to a claim to the bed of any such bays or gulfs." 55 Although his Honour may not have directly addressed the issue of whether "land" was used in s 50(1)(a) of the Land Rights Act in a more restricted sense than in s 22(1)(c) of the Acts of Interpretation Act, it is fairly clear that he concluded from the legislative history of the Land Rights Act that it was. The issue is whether he erred in law in doing so. The Land Rights Act 56 The long title of the Land Rights Act is "an Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes". 57 The manner in which the Act operates to grant title to Aboriginal land has been considered in a number of High Court decisions. In The Queen v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374 at 384-385 Stephen, Mason, Murphy and Aickin JJ said: "Whether or not the land here in question is indeed land to which s. 50 (1) applies, so that application may be made to the Commissioner in respect of it, depends upon the meaning to be given to that sub-section's description of land to which it applies. The relevant part of s. 50 (1) is as follows: 'The functions of the Commissioner are - (a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals -' There then follow details of what the Commissioner is to do in relation to such applications. The description, in par.(a) of s. 50 (1), of land which may be the subject of an application to the Commissioner is replete with defined terms. Their meanings, appearing in s. 3 (1) of the Act, in turn employ words having defined meaning. When account is taken of the interaction of these various definitions, the description of that class of land to which the section applies appears to be as follows: Land in the Northern Territory of Australia (i) which is not currently held for an estate in fee simple; (ii) which is not set apart for or dedicated to a public purpose under any statute; (iii) which is not the subject of a deed of grant held in escrow by a Land Council; (iv) which is not in a "Town" as defined in section 3; and in which any estates or interests not held by the Crown are all held by, or on behalf of, persons who are members of the Aboriginal race of Australia." 58 It was not suggested at the hearing that the seabed of the bays and gulfs, the subject of the Beagle Gulf Area Land Claim, falls within any one of the express exclusions referred to in the joint judgment. 59 It was common ground that the Land Rights Act is both remedial and beneficial and, therefore, is to be construed liberally. In determining whether the seabed of bays and gulfs was to be excluded from the rights and interests the Act can confer upon traditional Aboriginal owners of land in the Northern Territory, it is appropriate to consider the nature of those rights and interests. Brennan J, in The Queen v Toohey: Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 ("Meneling Station") at 354-360, explained those rights and interests as follows: "The Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") was enacted by the Parliament of the Commonwealth consequent upon the final Report made by the Hon. Mr. Justice A. E. Woodward under a Commission to inquire into and report upon, inter alia, the appropriate means to recognize and establish the traditional rights and interests of Aboriginals in and in relation to land. (at 354) … The Act provides for the restoration of some areas of land within the Northern Territory to Aboriginal control and gives legislative recognition to Aboriginal rights and interests in that land. The Act does not confer or authorize the Crown to confer proprietary rights upon particular Aboriginals beneficially: Land Trusts are created to hold the title to an estate in fee simple in Aboriginal land (s. 4). 'Aboriginal land' is defined by s. 3(1) to mean - '(a) land held by Land Trust for an estate in fee simple; or (b) land the subject of a deed of grant held in escrow by a Land Council;' (at 355) …The granting of land under the Act vests in the hands of Aboriginal Land Trusts proprietary rights which, unlike the traditional usufructuary rights which Blackburn J held not to be property, are recognized by the common law. Those proprietary rights are carved out of the Crown's radical title. (at 355) … The Act provides for the grant of title to two classes of Crown land. The first class consists in the parcels of land described in Sch. 1 (ss. 10 and 12). That land substantially comprises the Aboriginal reserves in the Northern Territory. The second class consists in other areas of Crown land in respect of which the Aboriginal Land Commissioner has made a recommendation to the Minister under s. 50(1)(a) that that area be granted to a Land Trust (ss. 11 and 12). (at 355) … To understand the nature of [the] functions [of the Commissioner under s 50(1)(a)], it is necessary to appreciate the concept of 'traditional Aboriginal owners', a term defined in s. 3(1). As that definition requires reference to 'Aboriginal tradition', defined in the same sub-section, it is convenient first to refer to the definition of that term: '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 . . .' Aboriginal traditions, observances, customs and beliefs applied in relation to sites and areas of land are different from non-Aboriginal traditions, observances, customs and beliefs. Upon the evidence placed before him in Milirrpum, Blackburn J. commented [(1971) 17 FLR, at p 167]: 'As I understand it, the fundamental truth about the [A]boriginals' relationship to the land is that whatever else it is, it is a religious relationship.' The religious relationship of particular Aboriginal groups with their 'country' (the term customarily used to describe the land with which there is a traditional connexion) invests the country of each group with a unique significance for that group. (at 356) … ..the statutory definition of 'traditional Aboriginal owners'…reflects the spiritual and cultural significance of land for Aboriginals. The term 'traditional Aboriginal owners' is defined by s. 3(1) 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. . .' . (at 357) Owners of land under Anglo-Australian law are understood to be vested with a bundle of rights exercisable with respect to land: (cf. per Rich J. in Minister for the Army v. Dalziel [(1944) 68 CLR 261, at p 285]. The term 'traditional Aboriginal owners' has a very different connotation. A traditional right to forage is the only 'right' included as an element in the definition, but even that right is not necessarily exclusive of the foraging rights of others. Foraging rights apart, the connexion of the group with the land does not consist in the communal holding of rights with respect to the land, but in the group's spiritual affiliations to a site on the land and the group's spiritual responsibility for the site and for the land. Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights. (at 357-358) … …if the Aboriginal Land Commissioner finds that 'there are Aboriginals who are the traditional Aboriginal owners of the land' and recommends that land be granted in accordance with ss. 11 and 12, and if the land is granted under s. 12 and becomes Aboriginal land, any Aboriginal has or any Aboriginal group have his or their traditional rights restored - not in a form unrecognized by law, but in the form of rights conferred by statute. Subject to the proprietary rights of third parties (not being a Land Trust or an Aboriginal Council or corporation) Aboriginals are entitled to their traditional rights of entry, occupation and use with respect to Aboriginal land (s. 71). Section 71(1) provides: '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.' The Act thus protects the exercise of those usufructuary rights which Aboriginal tradition either required certain groups of Aboriginals to exercise or allowed certain groups to enjoy with respect to land." (at 358-359) 60 In summary, the Land Rights Act was enacted in order to restore areas of land within the Northern Territory to Aboriginal ownership and control in recognition of traditional Aboriginal rights and interests in that land. The rights and interests that are recognised include those that reflect the spiritual and cultural significance of the land for the traditional Aboriginal owners. When land is granted under s 12 of the Land Rights Act it becomes "Aboriginal land" and, as was said by Brennan J, "any Aboriginal has or any Aboriginal group have his or their traditional rights restored". The restoration of those rights is protected by s 71(1), which provides for Aboriginal persons to enter upon Aboriginal land and use and occupy that land "in accordance with Aboriginal tradition". 61 The rights and interests granted under the Act are intended to apply to any area of land within the Northern Territory which does not fall within one of the express exclusions and which can be used or occupied according to Aboriginal tradition. In that context I can discern no reason why a broad definition of land "in its legal signification", which includes any "ground, soil or earth", whether submerged or not, (see Goldsworthy Mining at first instance at 210-211 per Mason J) should not be regarded as an area in respect of which traditional rights and interests may be granted under the Land Rights Act. As the land must have "traditional Aboriginal owners" (s 50(1)(a)), it is implicit from the definition of that term that it must be an area over which "foraging" in accordance with "Aboriginal tradition" can occur. Likewise it is implicit that it must be an area which can be "entered upon" and "used or occupied" in accordance with Aboriginal tradition (see for example, s 71(1)). The material before the Court does not establish that parts of the bed of, or reefs within, bays and gulfs of the Northern Territory are areas that are not capable of being used or foraged upon in accordance with Aboriginal tradition. Indeed, the nature of traditional activities of Aboriginal people appearing in the material suggests the contrary. 62 Clearly, difficulties can arise in a particular case as to whether a part of a seabed, or of a reef, has been "used" or was the subject of "foraging" in accordance with Aboriginal tradition. The difficulties may result in that particular claim not being established. However, difficulties in establishing a claim in respect of an area cannot exclude the area from the operation of the Act. 63 Furthermore, there is nothing about the nature of an estate in fee simple that makes it inapplicable to the seabed: see Attorney-General of British Colombia v Attorney-General of Canada [1914] AC 153 at 168-171. Plainly, the Crown has radical title to the seabed to the extent it has not been alienated by Crown grant or otherwise. As was explained by Brennan J at 335 in Meneling Station, the proprietary rights granted under the Land Rights Act "are carved out of the Crown's radical title". See also Lansen v Olney (1999) 169 ALR 49 at 63-65. Also, s 3 of the Crown Lands Ordinance 1931 (NT) was amended in 1969 to add to the definition of "Crown Lands" the "bed of the sea within the territorial limits of the Northern Territory" (see s 2 of the Crown Lands Ordinance (No 2) 1969 (NT)). Part IV of the Ordinance provides that grants in the fee simple may be made in respect of Crown Lands. Accordingly, there appears to be no conceptual reason for concluding that the Crown cannot grant an estate in fee simple in the seabed. 64 The Court was taken to an extensive body of material, including other statutes and the reports of Justice Woodward. However, I have been unable to discern from that material any intention that the recognition and protection of the body of traditions, observances, customs and beliefs of Aboriginals in the Northern Territory by the Land Rights Act was to be limited to "the solid part of the earth's surface which is above the line of the low water mark" within the Northern Territory. Nor am I able to discern from the material any legislative intention that the rights capable of being conferred under the Act exclude usufructuary rights or rights to forage in relation to the seabed of the bays or gulfs that form part of the Northern Territory. Furthermore, the definition of "land" contended for by the first respondent being the exposed part of the earth's surface, is itself fraught with difficulty. For example, it was unlikely that the Act intended to exclude from its operation the beds of rivers, lakes and estuaries within the Northern Territory. 65 Considerable reliance was placed by Olney J, and by the Northern Territory, upon the legislature not adopting Justice Woodward's proposals for the definition of Aboriginal land. The proposals would have provided that where a coast line is involved, Aboriginal land includes "both off-shore islands and waters within two kilometres of the low tide line": see Aboriginal Land Rights Commission, Second Report, April 1974 at [91] and s 12 and Sch 3 Col 1 of the draft legislation, which appeared as an appendix to the Report and defined Aboriginal land as including "waters within two kilometres of seaward of the low tide lines" in the defined areas. It was contended by the Northern Territory that the failure to adopt this definition was a rejection of Justice Woodward's recognition of the significance of offshore areas for traditional activities of Aboriginals in the Northern Territory. 66 Although the recommendations of Justice Woodward were not adopted in the form he recommended, it is unclear as to why that occurred. There is nothing in the extrinsic material that suggests that the reason why the "two kilometre" proposal was not adopted was an intention to exclude the seabed of the bays and gulfs of the Northern Territory from the areas that might be claimed. What does emerge is that, rather than adopting the proposal, the legislature provided in s 73(1)(d) of the Land Rights Act for the creation of a two kilometre sea buffer zone "adjoining Aboriginal land" to protect traditional rights and interests. 67 When enacted, s 73(1) provided as follows: "(1) The power of the Legislative Assembly for the Northern Territory to make Ordinances under section 4U of the Northern Territory (Administration) Act 1910 extends to the making of- (a) Ordinances providing for the protection of, and the prevention of the desecration of, sacred sites in the Northern Territory, including sacred sites on Aboriginal land, and, in particular, Ordinances regulating or authorizing the entry of persons on those sites, but so that any such Ordinances shall provide for the right of Aboriginals to have access to those sites in accordance with Aboriginal tradition and shall take into account the wishes of Aboriginals relating to the extent to which those sites should be protected; (b) Ordinances regulating or authorizing the entry of persons on Aboriginal land, but so that any such Ordinances shall provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition; (c) Ordinances 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, Ordinances 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 Ordinances shall provide for the right of Aboriginals to utilise wildlife resources; and (d) Ordinances 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 Ordinances shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition; but any such Ordinance 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, the National Parks and Wildlife Conservation Act 1975 and any regulations made, schemes or programs formulated or things done, under this Act, or under that Act." 68 After self government in 1978, s 73(1) was amended to provide for the power conferred to be exercised by the Legislative Assembly of the Northern Territory under the Northern Territory (Self Government) Act 1978 (Cth). 69 Counsel for the Northern Territory relied upon s 73(1)(d) to contend that the power conferred by that subsection is inconsistent with an intention to confer land rights in respect of the seabed of the bays and gulfs. In particular, it was submitted that, if land rights were granted in respect of the seabed, there would be no need for laws regulating or prohibiting the entry of persons into, or controlling fishing, or other activities, in waters of the sea above the seabed in the bays and gulfs. Further, it was submitted that in deciding to deal with the issue of "waters of the sea" in the manner set out in s 73(1)(d), the legislature intended that provision to constitute a code in respect of the sea areas forming part of, or adjoining, the Northern Territory. Accordingly, so it was said, a clear legislative intent emerges that no land rights were to be conferred in respect of areas which were below the low water mark. 70 I do not accept the contentions of the Northern Territory for a number of reasons. First, s 73(1) provides for legislation which is protective of the land rights granted under the Act and reveals no intention, directly or indirectly, to limit such rights. Laws may be enacted in accordance with s 73(1) to protect rights granted under the Act irrespective of whether those rights are in respect of onshore land, the seabed or overlying waters. 71 Second, s 73(1)(d), by regulating or prohibiting entry into "waters of the sea" adjoining and within two kilometres of Aboriginal land, represents the means by which the legislature gave effect to Justice Woodward's recognition of the potential significance of offshore waters for traditional activities of Aboriginals in the Northern Territory. The "buffer zone" that may be created under laws enacted pursuant to s 73(1)(d) can extend to waters of the territorial sea adjoining and within two kilometres of the seabed of bays and gulfs of the Northern Territory. Section 73(1)(d) is therefore not inconsistent with the seabed being "Aboriginal land". Thus, no legislative intention is discernible from s 73(1)(d) to exclude the seabed of bays and gulfs from being capable of constituting Aboriginal land for the purposes of the Land Rights Act. 72 Third, the effect on overlying waters of a grant of an estate in fee simple to the seabed is plainly a vexed question: see Attorney General of British Colombia at 170-171. Thus, it is not self evident that there is any anomaly if s 73(1)(d) were concerned with waters adjoining, but not overlying, any part of the seabed which becomes Aboriginal land under the Land Rights Act. 73 There might be some reason to regard as artificial a conclusion that the seabed of bays and gulfs is "land" under English or Australian property law. However, I do not accept that there is such artificiality in relation to an enactment concerned with recognising and restoring "traditional Aboriginal rights", where the material suggests that such rights can be exercised in relation to some parts of the seabed of bays and gulfs within the Northern Territory. 74 Both parties sought to gain some assistance from the precise definitions of Aboriginal land in Sch 1 of the Land Rights Act. In my view little assistance is to be gained from the definitions. The definitions describe the Crown land which was to be granted under s 4 of the Land Rights Act to Land Trusts for the benefit of Aborigines entitled by Aboriginal tradition to the use and occupation of the land concerned. Although the Schedule defines areas of land to include certain waters, that arose because of the need to define the boundaries of the areas set out in the Schedule, and does not necessarily indicate whether Aboriginal land to be granted pursuant to an application under s 50(1)(a) was to include, or exclude, the seabed of bays or gulfs. 75 Consequently, rather than indicate an intention that, for the purposes of the Act, land is to have a restricted meaning which excludes the seabed of bays and gulfs, the extrinsic material relied upon suggests either that no consideration was given by the legislature to the question of whether Aboriginal land is to include the seabed, or that the legislature left that issue for determination by the courts. 76 Cases on this issue in other contexts in other jurisdictions are also of little assistance. Ultimately, such cases turn on the particular words and context of the statute in question: see Argyll & Bute DC v Secretary of State for Scotland (1976) SC 248; cf Re Rivtow Industries v Assessment Commissioner of British Columbia (1986) 24 DLR (4th) 475. Conclusion 77 For the above reasons I have concluded that it is not appropriate to apply a restricted meaning to the definition of land in the Land Rights Act. 78 It follows that I have arrived at a different conclusion to Olney J on the issue of legislative intent in relation to the seabed of the bays and gulfs within the Northern Territory. Consequently, the applicant is entitled to succeed in his application to review his Honour's decision on the ground that he erred in law. 79 For the above reasons the applicant is entitled to a declaration that: "So much of the area claimed in the Beagle Gulf Area Land Claim (Application No 191) as is adjacent to, and seaward of the low water mark of the seacoast of the Northern Territory or of any island adjacent thereto which is the seabed of any bay or gulf within the Northern Territory is land which may properly be the subject of an application pursuant to s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976." 80 Finally, it needs to be emphasised that my decision is concerned solely with the question of whether any part of the seabed of bays and gulfs within the Northern Territory is capable of being claimed as "Aboriginal land" under the Land Rights Act. Whether any such claim can be made out, and the consequences that follow from it being made out, are matters that can only be determined on a case by case basis. There is a vast difference between stating that such "land" may, as a matter of law, be claimed and determining whether a particular claim, as a matter of fact, is established. I certify that the preceding forty- one (41) numbered paragraphs are A true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.