Risk v Northern Territory of Australia [2002] HCA 23

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

WILLIAM MAXWELL RISK APPELLANT

AND

THE NORTHERN TERRITORY OF RESPONDENTS

AUSTRALIA & ANOR

Risk v Northern Territory of Australia

[2002] HCA 23

30 May 2002

D12/2001

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

J Basten QC with S A Glacken for the appellant (instructed by the Northern Land Council)

T I Pauling QC, Solicitor-General for the Northern Territory with R J Webb for the first respondent (instructed by the Solicitor for the Northern Territory)

No appearance for the second respondent

H Fraser QC with N J Henwood intervening on behalf of the Northern Territory Seafood Council Inc (instructed by Cridlands)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Risk v Northern Territory of Australia

Aboriginals – Land rights – Claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to areas of the seabed of bays and gulfs within the limits of the Northern Territory – Whether the seabed of bays and gulfs amenable to claim – Whether "land in the Northern Territory" includes the seabed of bays or gulfs.

Words and phrases – "land" – "land in the Northern Territory".

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 3(1), definition of "Crown Land".

1. GLEESON CJ, GAUDRON, KIRBY AND HAYNE JJ. The central question in this appeal is whether the seabed of bays or gulfs within the limits of the Northern Territory can be the subject of claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"). This question was answered in the negative by an Aboriginal Land Commissioner (Olney J) and by the majority of the Full Court of the Federal Court of Australia[1] (French and Kiefel JJ; Merkel J dissenting). That answer was correct. The seabed of bays and gulfs within the limits of the Northern Territory cannot be subject to a claim under the Land Rights Act. That is not to say, however, that under the Native Title Act 1993 (Cth) ("the NTA") a claim cannot be made to what that Act refers to as "land" or "waters" in that area[2]. Section 210 of the NTA provides that nothing in that Act affects the rights or interests of any person under, among other Acts, the Land Rights Act. Whether any claim made under the NTA would succeed is, of course, a question that was not debated in, and is not decided by, this appeal. 2. In May 1997, the Northern Land Council, on behalf of the appellant and others, applied under the Land Rights Act for determination of a claim. The application, to an Aboriginal Land Commissioner appointed under Pt V of the Land Rights Act, claimed what was said to be unalienated Crown land in the Beagle Gulf Area. The claim originally included, but was later confined to, a claim to what was described as "[a]ll that land in the Northern Territory of Australia which is adjacent to, and seawards of the low water mark of the seacoast of the mainland" from a point in the west described as "the northernmost point of the western boundary" of an area of Aboriginal land[3] to, in the east, the point where the western bank of the Adelaide River meets the low water mark of the seacoast of the mainland. 3. The area thus described is, we were told, about 10,000 square kilometres and is bounded on the west by a line more than 124 km long, on the east by a line about 45 km long, on the north by Bathurst and Melville Islands, and on the south by the coast of the mainland from about the middle of Fog Bay to the Adelaide River. The port of Darwin lies in about the middle of that part of the coast of the mainland. The area includes part of Fog Bay and part of Beagle Gulf and Van Diemen Gulf. There are some islands in the area claimed. 4. The Aboriginal Land Commissioner (Olney J) determined that: