Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

NORTHERN TERRITORY OF AUSTRALIA

& ANOR APPELLANTS

AND

ARNHEM LAND ABORIGINAL LAND TRUST

& ORS RESPONDENTS

Northern Territory of Australia v Arnhem Land Aboriginal Land Trust

[2008] HCA 29

30 July 2008

D7/2007

ORDER

1. Appeal allowed in part.

2. Set aside the order first numbered 2 of the orders of the Full Court of the Federal Court of Australia made on 2 March 2007 and, in its place, order that it be declared that:

Sections 10 and 11 of the Fisheries Act (NT) do not confer on the Director of Fisheries (NT) a power to grant a licence under that Act which licence would, without more, authorise or permit the holder to enter and take fish or aquatic life from areas within the boundary lines described in the Arnhem Land (Mainland) Grant and the Arnhem Land (Islands) Grant made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

3. Appellants to pay the first, second and third respondents' costs of and incidental to the appeal to this Court.

On appeal from the Federal Court of Australia

Representation

D F Jackson QC with V B Hughston SC for the appellants (instructed by Solicitor for the Northern Territory)

B W Walker SC with S A Glacken for the first, second and third respondents (instructed by Northern Land Council)

M A Perry QC with G J Kennedy for the fourth respondent (instructed by Cridlands)

D M J Bennett QC, Solicitor-General of the Commonwealth with R J Webb QC for the fifth respondent (instructed by Australian Government Solicitor)

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

CATCHWORDS

Northern Territory of Australia v Arnhem Land Aboriginal Trust

Aboriginals – Land rights – Rights to exclude persons from tidal waters under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("Land Rights Act") – Grants of "Estate in Fee Simple" extending to low water mark – Grants subject to Land Rights Act – Subject of grants "Aboriginal land" under Land Rights Act – Under Land Rights Act, s 70(1), a "person shall not enter or remain on Aboriginal land" – Defence under Land Rights Act, s 70(2A), if person enters or remains on land in accordance with that Act, or law of Northern Territory – Under Aboriginal Land Act (NT) relevant Land Council may grant permission to enter and remain on Aboriginal land – Meaning of "Aboriginal land" – Whether, without permission, licensee under Fisheries Act (NT) ("Fisheries Act") can fish in "intertidal zone", or in tidal waters within boundaries of grants – Whether fishing in those waters is to "enter or remain on Aboriginal land" – Construction of Land Rights Act, s 70(1) – Whether licensee under Fisheries Act does not contravene Land Rights Act, s 70(1), because enters or remains on land "in accordance with … a law of the Northern Territory".