Reconciling Indigenous and Settler-State Assertions of Sovereignty Over Sea Country in Australia’s Northern Territory
Lauren Butterly
A thesis in fulfilment of the requirements of the degree of Doctor of Philosophy
Faculty of Law
May 2020
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Surname/Family Name : Butterly Given Name/s : Lauren Yvonne Abbreviation for degree as given in the University : PhD calendar Faculty : Law School : Law Reconciling Indigenous and Settler-State Assertions of Sovereignty Thesis Title : over Sea Country in Australia’s Northern Territory Abstract 350 words maximum: (PLEASE TYPE)
In 2008, the High Court of Australia handed down its decision in Northern Territory v Arnhem Land Aboriginal Land Trust (‘Blue Mud Bay Case’). The Blue Mud Bay Case affirmed the legal rights of Aboriginal Traditional Owners to control access to the waters of the intertidal zone in the Northern Territory (‘NT’). Immediately after the Blue Mud Bay Case was handed down, an interim amnesty came into operation that was agreed so that nothing changed in practice ‘on the water’. The NT Government and Traditional Owners agreed that the best way to move forward was to negotiate how the intertidal zone would be governed. As at mid-2020 these negotiations are ongoing. Therefore, the Traditional Owners in the NT are not currently controlling access to the waters of the intertidal zone as the Blue Mud Bay Case determined was their legal right.
The pre-history and the aftermath of the Blue Mud Bay Case reveals a series of evolving interactions between Indigenous and settler-state assertions of sovereignty in sea country in the NT. This thesis analyses five historical and contemporary episodes: 1) the Woodward Aboriginal Land Rights Commission and the debates about sea country in the enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in the 1970s; 2) the first sea closure hearing and declaration under that legislation in the early 1980s; 3) the High Court’s decision in Commonwealth v Yarmirr recognising native title offshore in 2001; 4) the Blue Mud Bay Case in 2008; and 5) the negotiations between the NT Government and Traditional Owners following the Blue Mud Bay Case. These episodes are analysed using a reconciling sovereignties frame that examines the interaction between co-existing assertions of Indigenous and settler-state sovereignty over sea country. This examination reveals that, although these episodes may appear disjointed, some of these assertions of sovereignty range across all the episodes. Further, the analysis demonstrates that the protracted nature of the Blue Mud Bay negotiations has been caused by the underlying struggle of the settler-state to acknowledge the challenge to the settler-state’s assertions of authority over sea country.
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The following are publications and presentations arising from the writing of this thesis:
Lauren Butterly, ‘Fishing for rights: The water-food nexus and Indigenous fishing in Australia’s Northern Territory’ (Fall 2018) 59(1) Jurimetrics: The Journal of Law, Science, and Technology 43.
Lauren Butterly, ‘A Tireless Fight: The Battle for Sea Country legal rights’, Australian National Maritime Museum Blog (Web Page, 30 July 2018)
Lauren Butterly, ‘Historic Crossroads: Negotiating Indigenous Rights to Govern Sea Country in the Northern Territory of Australia’ (Australia and New Zealand Law and Society Conference, 13 December 2018, University of Wollongong, Australia).
Lauren Butterly, ‘A decade on: What happened to the historic Blue Mud Bay Case (and why is it in the news again)?’, AUSPUBLAW (Web Page, 26 June 2017)
Lauren Butterly, ‘What lies beneath? The role of law, society and history in the fight for Indigenous sea rights in Australia’ (Australia and New Zealand Law and Society Conference, 8 December 2017, University of Otago, Aotearoa/New Zealand).
Lauren Butterly, ‘As far as the eye can see: Ownership, property and governance in Australia’s contested marine spaces’ (Contested Property Claims Conference, 11 December 2015, University of Aarhus, Denmark).
Lauren Butterly, ‘Dipping your toes into legal geography’ (Australia and New Zealand Law and Society Conference, 2 December 2015, Flinders University, Adelaide).
Lauren Butterly, ‘Regulatory space, Indigenous rights and environmental governance in the context of sea country’ (Inaugural Law and Geography Symposium, 12 February 2015, University of Technology, Sydney).
Lauren Butterly, ‘Governing contestable sea country spaces in Australia: Legal geography and regulatory theory’ (Institute of Australian Geographers Conference, 2 July 2015, Australian National University, Canberra).
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Lauren Butterly, ‘Making Waves: Exploring the future of sea country governance’ (World Indigenous Legal Conference, 27 June 2014, Queensland University of Technology, Brisbane).
Lauren Butterly, ‘Changing Tack: Law and Governance in Sea Country’ (ANU Early Career Research Workshop on Law, Governance and Development, 20 February 2014, Australian National University, Canberra).
Lauren Butterly, ‘Changing Tack: Akiba and the way forward for Indigenous governance of Sea Country’ (2013) 17(1) Australian Indigenous Law Review 2.
Lauren Butterly, ‘People power creating ripples in the sea space: Does Australia need to have a conversation about the foreshore and seabed?’ (Australia and New Zealand Law and History Conference, 26 November 2013, University of Otago, Aotearoa/New Zealand).
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Acknowledgements My first thanks are to my supervisors, Sean Brennan and Megan Davis, and my co-supervisor Bronwen Morgan. Sean’s supervision throughout the PhD journey has been exemplary. I am thankful for his constant support and for his always thoughtful and careful guidance. Megan gave me so many opportunities to learn beyond the PhD, including spending time assisting her at the UN Permanent Forum on Indigenous Issues. I am grateful to Megan for challenging me to see the bigger picture and for her encouragement throughout the journey. Bronwen really went above and beyond the role of a co-supervisor and was so patient with me as I learnt new ways of thinking. I am a better scholar and lawyer at the end of this PhD journey because I learnt so much from each of my supervisors. I also wish to thank the current and former staff at the Dhimurru Aboriginal Corporation. In particular, I am grateful to Steve Roeger, Mandaka ‘Djami’ Marika, Vanessa Drysdale, Jonathan Wearne, Luke Playford and Christine Burke. This thesis would not have been possible without their contribution and was enriched by their perspectives and enthusiasm. More broadly, I want to thank all the participants that agreed to be interviewed for this thesis. During my PhD candidature, I received support and friendship from colleagues at the University of Western Australia Law School, the Australian National University College of Law, the University of New South Wales Law Faculty and the Environmental Defenders Office. There are too many colleagues to thank and I am so grateful for all the advice and encouragement they gave me along the PhD journey. I wish to particularly thank my PhD panel at UNSW Law (Gary Edmond, Cameron Holley and Leon Terrill), the Higher Degree Research Officer (Jenny Jarrett) and my fellow PhD candidates across several universities. In relation to the latter, my PhD experience was made so much more enriching by Shreeya Smith, Lynsey Blayden, Harry Hobbs, Zsofia Korosy, Katie O’Bryan, Phillipa McCormack and Ben Ralston. In every aspect of my life, the PhD included, I am indebted to Michael Barnett and Annmaree O’Connell at the Brain and Mind Centre. Another journey in my life, the Multiple Sclerosis journey, existed alongside the PhD. Michael and Annie have continued to provide me with the best medical care and that has allowed me to pursue every life opportunity. To my friends and family who have been there through the very long, and sometimes challenging, ‘part-time-PhD-while-working-full-time’ journey, I am so thankful for your patience and encouragement: to all my teammates in the Sydney and Perth Frontrunners for keeping me fit and happy; to Rebecca Walker, Meagan Hemsley, Kerri Benn, Vicka Poudyal and Karla Boluk for always being there over all these years; to Madeleine Hartley for her most generous friendship and guidance; to Rachel Pepper and Merydith Clarke for constant support of every kind (and always just when I needed it); and to Naomi, Ruth and Evan for your messages letting me know you were there (no matter where in Australia I was). Finally, the most important thanks are to my mum, Marie Isaacson. Mum gave up so much for us, including her own educational opportunities. This PhD would not have been possible without the strength of her love.
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TABLE OF CONTENTS
ABSTRACT ...... xiv
KEY WORDS, PHRASES AND ACRONYMS ...... xv
MAP OF THE NORTHERN TERRITORY OF AUSTRALIA WITH REFERENCES THAT ARE SPECIFIC TO THIS THESIS ...... xvi
I. INTRODUCTION ...... 1 A. Over a Decade Since the Blue Mud Bay Case ...... 1 B. Sea Rights, Sea Country Governance and Reconciling Sovereignties ...... 4 C. Structure of Thesis ...... 12
II. RECONCILING SEA COUNTRY AND MARINE SOVEREIGNTIES ...... 14 A. Introduction ...... 14 B. Legal Pluralism: Indigenous and Settler-State Legal Systems Co-Exist ...... 16 C. Reconciling Indigenous and Settler-State Assertions of Sovereignty ...... 20 1. Sovereignty, International Law and Settler-States ...... 21 2. How Can Indigenous and Settler-State Sovereignties Co-Exist? ...... 23 3. Australian Context: Co-Existing Sovereignties as a Practical Reality ...... 24 4. What Does a Reconciling Sovereignties Analysis Involve? ...... 26 (a) Reconciliation in the Context of Indigenous/Settler-State Sovereignties .. 27 (b) Relevance of Canadian Context of Reconciling Sovereignties Scholarship …………………………………………………………………………….29 (c) Reconciling Sovereignties as Unresolved Tensions ...... 32 D. Assertions of Sea Country and Marine Sovereignty ...... 35 1. Overview of the Australian Inter-societal Conversation about Sea Country Law and Governance ...... 36 (a) Legal Rights in Sea Country ...... 37 (b) Indigenous Governance of Sea Country ...... 41 (c) Sovereignty: Beyond the Law (Legal Rights)/Governance Divide? ...... 43 2. Assertions of Indigenous Sovereignty over Sea Country...... 44 3. Assertions of Settler-State Sovereignty over the Marine Space ...... 47 (a) What is the Settler-State? ...... 47
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(b) Australia’s Assertion of Sovereignty over the Marine Space: International and Colonial Context ...... 49 (i) Governmental Authority over the Marine Space: Commonwealth and State/Territory ...... 50 (ii) Obligations to Provide Public Rights and Innocent Passage ...... 54 (iii) Economic Exploitation ...... 55 E. Conclusion ...... 55
III. INDIGENOUS ASSERTIONS OF SOVEREIGNTY: CULTURAL, HISTORICAL AND ANTHROPOLOGICAL LITERATURE ...... 57 A. Introduction ...... 57 B. Overview of Literature: Timeframes, Limitations and Translations ...... 58 1. The Customary Marine Tenure Era ...... 58 2. Contemporary Anthropological Work (Predominantly Around Blue Mud Bay) ..... 62 3. Indigenous Explanations to Non-Indigenous Audiences ...... 63 C. Analysis of Literature as it Relates to Assertions of Indigenous Sovereignty ...... 65 1. Spiritual Authority and Responsibility: ‘Ownership’ ...... 65 2. Use rights...... 68 3. Control Over Who Enters and Decision-Making: Strangers and Seeking Permission ……………………………………………………………………………………...70 D. Conclusion ...... 73
IV. EPISODE ONE: FROM LAND RIGHTS TO SEA RIGHTS—INITIAL DEBATES ABOUT RECOGNISING INDIGENOUS RELATIONSHIPS TO SEA COUNTRY IN LEGISLATION ...... 75 A. Introduction ...... 75 B. The Lead-Up to the ALRA: Gove Land Rights Case...... 76 1. Gove Land Rights Case ...... 76 (a) Relationship Between Property Law and the Claimed Rights ...... 78 (b) Impact of Crown Acquisition of Sovereignty on Indigenous Communal Title …………………………………………………………………………….80 (c) Continuing Relevance of the Gove Land Rights Case ...... 81 2. The Relationship Between the Northern Territory Government and the Commonwealth Government ...... 82 C. The Woodward Commission ...... 83
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1. What was the Indigenous ‘Claim’ to Sea Country? ...... 85 2. Justice Woodward’s Recommendations on Sea Country: Buffer Zone ...... 89 (a) Buffer Zone out to 12 miles ...... 89 (b) Buffer Zone out to Two Kilometres ...... 91 (c) Indigenous Opportunities for Commercial Fishing ...... 93 3. Conclusions on the Woodward Commission ...... 94 D. The Drafting of and Debate Around the ALRA ...... 95 1. The Whitlam Bill—The 1975 Bill ...... 96 2. The Fraser Bill—The 1976 Bill and the Passing of the ALRA ...... 98 3. The Joint Select Committee on Aboriginal Land Rights ...... 100 (a) The NT Aboriginal Lands Bill’s Approach to Sea Country ...... 101 (b) Sea Closures and ‘Racial Tensions’ ...... 105 (c) International Law and Exclusive Rights to the Sea ...... 107 (d) Recommendations of the Committee ...... 108 E. Conclusion ...... 109
V. EPISODE TWO: ‘CONTROL OF ENTRY ONTO SEAS ADJOINING ABORIGINAL LAND’—SEA CLOSURES AND THE MEANING OF CONTROL ...... 111 A. Introduction ...... 111 B. Applying to Close the Seas ...... 112 1. Sea Closure Application Process: Aboriginal Tradition Versus Non-Indigenous Disadvantage ...... 113 (a) Aboriginal Tradition and Strangers ...... 114 (b) Identifying Disadvantage that would be Caused by a Sea Closure ...... 117 2. Who Could Enter a Sea Closure Once Declared? ...... 119 (a) General Exemptions ...... 120 (b) Commercial Fishing Exemptions ...... 122 3. Practical Application of Sea Closures ...... 126 C. First Sea Closure Hearing: Milingimbi, Crocodile Island and Glyde River ...... 134 1. The ‘Claim’ to Control and the Pre-History of the Sea Closure Application ...... 136 2. Interactions between Commercial Fishers, Government and the Yolngu Community: Causing Problems and ‘Illegal’ Fishing ...... 139 3. Indigenous Commercial Fishing ...... 141
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4. Enforcement ...... 142 D. Conclusion ...... 144
VI. EPISODE THREE: POST-SEA CLOSURE (AND POST-MABO) DISCUSSIONS ON SEA COUNTRY RIGHTS AND GOVERNANCE AND THE SUBSEQUENT PRIORITISATION OF THIRD-PARTY INTERESTS IN YARMIRR HCA ...... 146 A. Introduction ...... 146 B. Post-Sea Closure, Pre-Yarmirr HCA: Conversations on Indigenous Sea Country Rights and Governance ...... 148 1. Relationship between Coastal Zone Inquiry and Mabo ...... 150 2. ‘Conflicts and Concerns’ and Aspirations of Control Identified by the CZ Inquiry Consultancy Reports ...... 151 C. Yarmirr Cases: Recognition of (Non-Exclusive) Native Title Rights and Priority Given to Third-Party (Non-Indigenous) Interests ...... 158 1. Could a Claim be made to Sea Country Pursuant to the Native Title Act? ...... 159 2. The Claim in Yarmirr FC ...... 162 (a) The Background to the Yarmirr Claim: Clear History of Indigenous Assertions of their Relationships to the Sea ...... 162 (b) The Trial Judgment: Factual Findings on Exclusive Possession ...... 163 3. Two Contested Issues: Settler-State Sovereignty and International and Public Rights …………………………………………………………………………………….169 (a) Meaning of Settler-State Sovereignty in the Marine Context ...... 171 (b) Impact of International and Public Rights on a Claim to Exclusivity ...... 172 (i) International Right of Innocent Passage ...... 174 (ii) Public Rights to Fish and Navigate ...... 175 (iii) A Compromise: ‘Qualified Exclusivity’ ...... 176 (c) Conclusion on Yarmirr HCA: The Relationship between Settler-State Sovereignty and Inconsistency ...... 182 D. Conclusion ...... 183
VII. EPISODE FOUR: THE LEGAL TURNING POINT ON EXCLUSIVE RIGHTS— THE BLUE MUD BAY CASE ...... 187 A. Introduction ...... 187 B. Seeking Control: Yolngu Rom (Yolngu Law) and the ALRA...... 189 1. Strangers in Blue Mud Bay: The Legal Dispute ...... 189 2. The Relationship between Yolngu Rom, Aboriginal Sovereignty and the ALRA .. 190
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3. Control, Permission and Exclusivity ...... 192 C. What did a Fee Simple Grant Mean in the Context of the Waters of the Intertidal Zone? ...... 195 D. Is There a Contemporary Public Right to Fish? ...... 200 1. First Interpretation: The Public Right to Fish was Merely Regulated and could Co- Exist with (Non-Exclusive) Indigenous Rights ...... 201 2. Second Interpretation: Historical Public Rights should not be Resuscitated for the Purpose of Defeating Indigenous Claims ...... 202 E. The Relationship between the ALRA and the Fisheries Act ...... 204 F. Conclusion ...... 207
VIII. EPISODE FIVE: POST-BLUE MUD BAY CASE—OVER TEN YEARS OF NEGOTIATIONS ...... 209 A. Introduction ...... 209 B. Reconciling Assertions of Sovereignty through Negotiated Agreements ...... 210 1. Negotiated Agreements between Indigenous Peoples and the Settler-State Society in the Australian Context ...... 212 2. Contemporary Treaty Negotiations in the NT...... 215 3. Brief History of Negotiated Agreements in the NT ...... 217 C. The Blue Mud Bay Negotiations ...... 218 1. The Negotiating Parties ...... 220 (a) Traditional Owners and the Aboriginal Land Councils...... 221 (b) The Settler-State: The NT and Commonwealth Governments ...... 223 (c) The Third Parties ...... 226 D. Relationships and Bargaining Chips: The Three Eras of the Blue Mud Bay Negotiations ...... 230 1. 2008-2011: Traditional Owners Reject the NT Government’s Process and Proposals …………………………………………………………………………………….231 (a) Tiwi Traditional Owners: Going it Alone ...... 232 (b) Traditional Owners represented by the NLC: Rejecting the NT Government’s Proposal ...... 235 2. 2012-2014: Change of NT Government Strategy - Targeted Areas rather than Comprehensive Agreement ...... 237 3. 2015-2018: High Tensions - Towards the Ten Year Mark ...... 245 (a) Change in NLC Negotiating Strategy ...... 246
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(b) A Preamble to the Flashpoint? The Review of Detriment...... 250 (c) Flashpoint: NLC Threaten to Introduce Permits ...... 254 4. Conclusions and Contemporary Negotiations ...... 257 E. Conclusion ...... 259
IX. CONCLUSION: BEYOND THE BLUE MUD BAY NEGOTIATIONS— RECONCEPTUALISING THE SEA COUNTRY LAW AND GOVERNANCE PARADIGM ...... 261 A. Introduction ...... 261 B. Historical Narrative of Reconciling Indigenous and Non-Indigenous Sovereignties in the Context of Sea Country ...... 262 C. Contemporary Settler-State and Indigenous Approaches to the New Law and Governance Paradigm ...... 267 1. Coastal and Marine Management Strategy ...... 267 2. Sea Country Indigenous Protected Areas ...... 275 D. Conclusion ...... 282
X. APPENDIX I: CHRONOLOGY OF IMPORTANT CASES ...... 283
XI. BIBLIOGRAPHY ...... 284
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ABSTRACT
In 2008, the High Court of Australia handed down its decision in Northern Territory v Arnhem Land Aboriginal Land Trust (‘Blue Mud Bay Case’). The Blue Mud Bay Case affirmed the legal rights of Aboriginal Traditional Owners to control access to the waters of the intertidal zone in the Northern Territory (‘NT’). Immediately after the Blue Mud Bay Case was handed down, an interim amnesty came into operation that was agreed so that nothing changed in practice ‘on the water’. The NT Government and Traditional Owners agreed that the best way to move forward was to negotiate how the intertidal zone would be governed. As at mid-2020 these negotiations are ongoing. Therefore, the Traditional Owners in the NT are not currently controlling access to the waters of the intertidal zone as the Blue Mud Bay Case determined was their legal right.
The pre-history and the aftermath of the Blue Mud Bay Case reveals a series of evolving interactions between Indigenous and settler-state assertions of sovereignty in sea country in the NT. This thesis analyses five historical and contemporary episodes: 1) the Woodward Aboriginal Land Rights Commission and the debates about sea country in the enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in the 1970s; 2) the first sea closure hearing and declaration under that legislation in the early 1980s; 3) the High Court’s decision in Commonwealth v Yarmirr recognising native title offshore in 2001; 4) the Blue Mud Bay Case in 2008; and 5) the negotiations between the NT Government and Traditional Owners following the Blue Mud Bay Case. These episodes are analysed using a reconciling sovereignties frame that examines the interaction between co-existing assertions of Indigenous and settler-state sovereignty over sea country. This examination reveals that, although these episodes may appear disjointed, some of these assertions of sovereignty range across all the episodes. Further, the analysis demonstrates that the protracted nature of the Blue Mud Bay negotiations has been caused by the underlying struggle of the settler-state to acknowledge the challenge to the settler-state’s assertions of authority over sea country.
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KEY WORDS, PHRASES AND ACRONYMS
AFANT Amateur Fishermen’s Association of the NT AFIC Australian Fishing Industry Council AL Act Aboriginal Land Act 1978 (NT) ALRA Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) balanda Yolngu word for non-Indigenous people Cth Commonwealth of Australia CZ Inquiry Coastal Zone Inquiry Dhimurru Dhimurru Aboriginal Corporation GFIA Guided Fishing Industry Association IPA Indigenous Protected Area IUCN International Union for the Conservation of Nature MSP Marine Spatial Planning NRSMPA National Reserve System of Marine Protected Areas NLC Northern Land Council NT Northern Territory NTA Native Title Act 1993 (Cth) NTSC Northern Territory Seafood Council OCS Offshore Constitutional Settlement Marine Management NT Government Coastal and Marine Management Strategy Strategy 2019-2029 TLC Tiwi Land Council UNCLOS UN Convention on the Law of the Sea UNDRIP UN Declaration on the Rights of Indigenous Peoples WA Western Australia Woodward Commission Woodward Royal Commission into Aboriginal Land Rights in the Northern Territory Yolngu rom Yolngu law
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MAP OF THE NORTHERN TERRITORY OF AUSTRALIA WITH REFERENCES THAT ARE SPECIFIC TO THIS THESIS
(This map is for illustrative purposes only)
Milingimbi (First Sea Closure
Hearing: Milingimbi, Crocodile Gove Peninsula Croker Island (Yarmirr native title Island and Glyde River) – claim) – Chapter VI (Gove Land Rights Chapter V Case) – Chapter IV
Dhimurru Aboriginal Corporation (Sea • Darwin • Nhulunbuy Country Indigenous Protected Area) – Chapter IX
Blue Mud Bay (the Blue Mud Bay Case) – Chapters VII and VIII Limmen Bight (Limmen Bight Marine Park) – Chapter IX
[Source of Map: Wikipedia Commons. This image is labelled for sharing and adaptation:
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I. INTRODUCTION
A. Over a Decade Since the Blue Mud Bay Case
More than a decade ago on 20 July 2008, the High Court of Australia handed down its decision in Northern Territory v Arnhem Land Aboriginal Land Trust (‘Blue Mud Bay Case’).1 This decision related to Blue Mud Bay in north-east Arnhem Land in the Northern Territory of Australia (‘NT’). The Aboriginal Traditional Owners of Blue Mud Bay are the Yolngu people.2 Broadly, the Blue Mud Bay Case held that pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘ALRA’), land in the intertidal zone (the area between high and low water marks) in the NT could be claimed and recognised as ‘Aboriginal land’. The intertidal zone was Aboriginal land because it falls within the boundaries defined in the land grants made to coastal Aboriginal Land Trusts. This is so regardless of the fact that it is ‘covered and uncovered by water at different times of the day, depending upon the position of the tides’.3
Pursuant to the statutory land rights legislation in the NT, which is distinct from native title, Aboriginal land takes the form of inalienable fee simple.4 The High Court has confirmed this is the equivalent of full ownership.5 The title is held by an Aboriginal Land Trust for the benefit of the relevant Traditional Owners.6 The practical outcome of the Blue Mud Bay Case
1 Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 (‘Blue Mud Bay Case’). 2 The term ‘yolngu’ (which is spelt ‘yolŋu’) means ‘people’ in the language of Yolŋu Matha: see ‘Yolŋu Matha Dictionary’, Charles Darwin University (Web Page)
Immediately after the Blue Mud Bay Case was handed down, an interim ‘amnesty’ came into operation that was agreed between the NT Government and Traditional Owners (represented by three Aboriginal Land Councils),10 ‘so that nothing changed in practice “on the water”’.11 Recreational and commercial non-Indigenous fishers ‘could continue to fish and access the intertidal zone without permission from the Traditional Owners’.12 The Traditional Owners and the NT Government agreed that the best way to move forward was to negotiate. These negotiations have now been ongoing for over ten years. The amnesty has generally been renewed annually (but there have been some regional variations over the years).13 In more recent years, the renewal of the amnesty has been contentious. On some occasions, it has been preceded by threats from Traditional Owners to not extend the amnesty and to, therefore, require non-Indigenous fishers to apply for permits to enter the intertidal zone.14
7 Butterly, ‘A decade on: What happened to the historic Blue Mud Bay Case (and why is it in the news again)?’ (n 4). 8 Transcript of Proceedings, Northern Territory v Arnhem Land Aboriginal Land Trust [2007] HCATrans 324, 40-45 (DF Jackson). Counsel for the NT noted that the case applied to ‘some 84 to 88 per cent of the coastline’ of the NT. Further, there are outstanding claims that might increase this percentage: Northern Territory Government, Coastal and Marine Management Strategy 2019-2029 (2019) 2
The transition to negotiation opened a new context that escaped the rigidities of litigation. Negotiations had the potential to provide ‘opportunities as well as rights’.15 There are two opportunities that appear to have been the focus of Traditional Owners in the Blue Mud Bay negotiations: involvement in broader marine governance, and the ability (legally and economically) to participate in the commercial fishing sector. Both opportunities have been sought beyond the intertidal zone. The Blue Mud Bay Case is a ‘bargaining chip’ that has been used to leverage negotiations beyond the rights determined by the High Court.
Due to the continuing amnesty, Traditional Owners in the NT are not currently controlling access to the waters of the intertidal zone as the Blue Mud Bay Case determined was their legal right. However, the ongoing negotiations, as at mid-2020, demonstrate that the Traditional Owners are powerful actors in possession of strong legal rights. The Traditional Owners are challenging the NT Government’s authority as the only or overarching governing body of the marine area. The settler-state adopts this position based on the assumed strength of their assertion of sovereignty. However, both the settler-state and Indigenous peoples have made assertions of sovereignty over the sea in legal, sociological and empirical ways. The relationship between these assertions of sovereignty began well before the Blue Mud Bay Case and have continued to shape the way the contemporary negotiations have progressed.
The Blue Mud Bay negotiations fit within the context of the pan-Australian experience of reconciling Indigenous and non-Indigenous assertions of sovereignty. This Australian context then fits within a broader international context of Indigenous peoples striving to get the best possible expression of their sovereignties, often through a preparedness to engage with the settler-state legal system. These experiences demonstrate Indigenous peoples putting pressure on settler-state assertions of sovereignty by, both explicitly and implicitly, asserting Indigenous sovereignty, and how Western legal and political systems seek to respond to such pressures. The Blue Mud Bay negotiations are a micro-version of this widespread experience that is distinctive for two reasons. First, the sea-based context engages with assertions of sovereignty in a way that is different to matters relating to terrestrial land. Second, the pre- history and aftermath of the Blue Mud Bay Case reveals evolving interactions between Indigenous and settler-state assertions of sovereignty.
2018)
B. Sea Rights, Sea Country Governance and Reconciling Sovereignties
The pre-history and aftermath of the Blue Mud Bay Case draws together narratives of sea rights and ‘sea country’16 governance. For the purposes of this thesis, sea rights are the more limited concept of the two. Sea rights are the Indigenous legal rights that have been recognised within the settler-state legal system. For example, non-exclusive native title rights to sea country were first recognised in the NT in the case of Commonwealth v Yarmirr (‘Yarmirr HCA’) in 2001.17 Sea country governance, on the other hand, is a broader concept that considers other forms of influencing decision-making and authority outside of settler- state case law and legislation.18 Sea Country Indigenous Protected Areas (‘IPAs’) are a good example of sea country governance as they do not have any basis in settler-state case law or legislation. Sea Country IPAs are Indigenous community-led marine environmental management models supported, through policy and funding, by the Commonwealth Government.19 Indigenous communities develop Sea Country IPA management plans and use them to reach out to relevant non-Indigenous parties, including Commonwealth and State/Territory government bodies, as a form of Indigenous-led collaborative governance.
Sea country governance is broader than the Indigenous legal rights paradigm and reaches into forms of environmental governance.20 However, whilst legal rights might be a narrow concept as compared to governance, legal rights are powerful. In the context of the Blue Mud Bay Case, the strong legal rights determined by the High Court have led to sustained negotiations about Indigenous governance of sea country.
The distinction adopted here between law and governance is a settler-state focused conception of what is law and what is not law. The reason for this formalist approach is to enable a more comprehensive analysis of assertions of sovereignty. Law and governance are
16 Sea country (or sometimes ‘saltwater country’) is a term widely used by Indigenous peoples in Australia to describe ‘any environment within their broader traditional estate that is associated with the sea or saltwater’: Rist et al (n 2) 139. 17 Commonwealth v Yarmirr (2001) 208 CLR 1 (‘Yarmirr HCA’). 18 Christine Parker and John Braithewaite, ‘Regulation’ in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (OUP, 2003) 119, 119. 19 Dermot Smyth and Miya Isherwood, ‘Protecting Sea Country: Indigenous Peoples and Marine Protected Areas in Australia’ in James Fitzsimons and Geoff Wescott (eds), Big, Bold and Blue: Lessons from Australia’s Marine Protected Areas (CSIRO, 2016) 307, 318-321. In relation to IPAs more generally, see: Lee Godden and Stuart Cowell, ‘Conservation planning and Indigenous governance in Australia’s Indigenous Protected Areas’ (2016) 24(5) Restoration Ecology 692. 20 Robert Hamilton, ‘Indigenous Legal Traditions, Inter-societal Law and the Colonisation of Marine Spaces’ in Steve Allen, Nigel Bankes and Øyvind Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart Publishing, 2019) 39-42. 4 deliberately separated for the purpose of seeing how they both reveal different assertions of sovereignty and how these assertions are interpreted and understood. In this context, how the settler-state reacts to Indigenous assertions of sovereignty can be heavily influenced by whether the assertions relate to what are deemed legal rights. This formalist conception makes visible the various ways in which the settler-state responds to Indigenous assertions of sovereignty grounded in both legal rights and Indigenous governance.
Both legal rights and governance are inter-societal concepts in that they have developed out of the relationship between Indigenous peoples and the settler-state.21 There are inherent dangers in focusing on inter-societal concepts given the colonial structure in which they exist. To some extent, settler-state legal rights can be interpreted as those rights that are deemed acceptable to the settler-state. Similarly, environmental governance has historically focused on Western values of conservation that have often marginalised Indigenous peoples.22 The inter-societal concepts of settler-state law and governance regulate the relations between Indigenous peoples and the settler-state community and determine ‘the way in which their respective legal institutions interact’.23
In this context, although this thesis uses a formalist distinction between law and governance, it also adopts theories of legal pluralism to emphasise that there are two legal systems, Indigenous and settler-state, concurrently operating within Australia. This combination of analytical tools might seem unusual given the formalist distinction between law and governance could be at odds with theories of legal pluralism. However, these approaches serve different but complementary purposes in this thesis. As noted above, the formalist distinction between settler-state law and governance seeks to give a more comprehensive account of how assertions of sovereignty are made, and how they are interpreted or
21 Brian Slattery, ‘Making Sense of Aboriginal and Treaty Rights’ (2000) 79(2) Canadian Bar Review 196, 198; Kent McNeil, ‘Indigenous Nations and the Legality of European Claims to Sovereignty over Canada’ in Sandra Tomsons and Lorraine Mayer (eds), Philosophy and Aboriginal Rights: Critical Dialogues (OUP, 2013) 242, 247-248; Brian Slattery, ‘The Generative Structure of Aboriginal Rights’ in Douglas Sanderson and Patrick Macklem (eds), From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (University of Toronto Press, 2015) 100, 101; Mark Walters, ‘The Jurisprudence of Reconciliation: Aboriginal Rights in Canada’ in Will Kymlicka and Bashir Bashir (eds), The Politics of Reconciliation in Multicultural Societies (OUP 2008) 165, 180. 22 For example: Benjamin Richardson, ‘The Ties that Bind: Indigenous Peoples and Environmental Governance’ in Benjamin Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, 2009) 337, 338 and Marcia Langton, ‘What do we mean by wilderness: Wilderness and Terra Nullius in Australian Art [Address to the Sydney Institute on 12 October 1995]’ (Summer 1996) 8(1) Sydney Papers 10. 23 Slattery, ‘Making Sense of Aboriginal and Treaty Rights’ (n 21) 198. Although Slattery focuses on ‘Aboriginal rights’, models of environmental governance also perform this regulatory role. 5 understood as part of the process of reconciling sovereignties. Whereas, broadly, theories of legal pluralism are used as one of the bases for expressing Indigenous assertions of sovereignty.
Indigenous laws about sea country have been described as relating to caretaking, responsibility and custodianship, as well as knowledge, language, sharing and family.24 Across many Traditional Owner groups in the NT, Indigenous laws require non-Traditional Owners (Indigenous or non-Indigenous) to seek permission to enter sea country.25 Permission requirements are based on having cultural and environmental responsibilities that do not ‘easily translate into European property laws and institutions’.26 These responsibilities involve the ability to make holistic decisions about the use of sea country including deciding who enters and what they can and cannot do in sea country. Indigenous sea country governance approaches are regionally place-based and rely on specific knowledge and relationships.
Settler-state sovereign rights over territorial waters were asserted as part of the acquisition of sovereignty in the international law context of colonisation. The assertion of those sovereign rights gave overarching ownership to the settler-state within the international law paradigm, but the sea was, unlike land, otherwise ‘unownable space’ and ‘open to everyone’ to fish and navigate.27 The settler-state’s asserted acquisition of sovereignty ignored and attempted to erase Indigenous sovereignties over sea country even though they continued to be exercised and asserted. The settler-state would go on to regulate the territorial marine space through laws and policies in a range of areas including fisheries, environmental conservation, shipping and commercial exploitation (such as mining and aquaculture).
The analysis in this thesis focuses on the jurisdiction of the NT given the centrality of the Blue Mud Bay Case. The Blue Mud Bay Case interpreted the ALRA, which only applies in the NT, and therefore, the case did not have precedential value beyond the NT in a doctrinal legal sense. The research project initially planned for this thesis was a comparison between the NT
24 Buku-Larrngay Mulka Centre, Saltwater: Yirrkala Bark Paintings of Sea Country (Buku-Larrngay Mulka Centre in association with Jennifer Isaacs Publishing, 1999) 9-12. 25 This will be discussed in detail at: Chapter III, Part C, Section 3. 26 John Cordell, Managing Sea Country: Tenure and Sustainability of Aboriginal and Torres Strait Islander Marine Resources (Report for Ecologically Sustainable Development Fisheries Working Group, 1991) 2. 27 Nonie Sharp, Saltwater People: The Waves of Memory (Allen and Unwin, 2002) 46. 6 and two other Australian jurisdictions (Queensland and Western Australia).28 However, it became clear at an early stage in the research that the Blue Mud Bay Case, and its pre-history and aftermath, required substantial original research, including fieldwork, and a full thesis to be adequately analysed. There is more work to be done on other Australian jurisdictions and this thesis hopes to provide some framing and impetus for that to occur. The NT context, particularly in the contemporary sense of the Blue Mud Bay negotiations, is broadly relevant to all Australian coastal jurisdictions and to overseas settler-state jurisdictions such as Canada and Aotearoa/New Zealand. Although these jurisdictions may not face the same doctrinal legal implications that arose from the Blue Mud Bay Case, they face similar sociolegal issues relating to recognising Indigenous rights in marine areas and negotiating Indigenous involvement in governance of sea country.29
28 As will be discussed at Chapter II, Part D, Section 1(a), outside of the NT, Western Australia (‘WA’) and Queensland are the other jurisdictions that have had key litigated native title determinations in relation to sea country. Further, Queensland has a specific statutory model for Indigenous management of particular marine species called Traditional Use Marine Resources Agreements (TUMRAs): Melissa Nursey-Bray and Chris Jacobson, ‘“Which way?”: The contribution of Indigenous marine governance’ (2014) 6(1) Australian Journal of Maritime and Ocean Affairs 27, 33. Both Queensland and WA have forms of sea country governance including Indigenous Protected Areas. In the Queensland context, Indigenous aspirations for, and challenges relating to, involvement in governance of the Great Barrier Reef have been analysed by other researchers. For example: Rist et al (n 2) 139, 141, 146; Helen Ross et al, Traditional Owner Aspirations Towards Co-Operative Management of the Great Barrier Reef World Heritage Area: Community Case Studies (CRC Reef Reference Centre Technical Report No 56, 2004); and Catherine Robinson, Helen Ross and Marcus Hockings, Development of Co-Operative Management Arrangements in the Great Barrier Reef: An Adaptive Management Approach (CRC Reef Reference Centre Technical Report No 55, 2006). Similarly, research has analysed aspirations for, and challenges relating to, involvement of Torres Strait Islanders in the Torres Strait region in far north Queensland (particularly in relation to dugong, turtle and fisheries management). For example: James Butler et al, ‘Integrating Traditional Ecological Knowledge and Fisheries Management in the Torres Strait, Australia: The Catalytic Role of Turtles and Dugong as Cultural Keystone Species’ (2012) 17(4) Ecology and Society 34; Monica Mulrennan and Colin Scott, ‘Co-management: An Attainable Partnership? Two Cases from James Bay, Quebec and Torres Strait, Queensland’ (2005) 47 Anthropologia 197; and Donna Kwan et al, ‘Towards Community-Based Management of Natural Marine Resources in Torres Strait’ in Elspeth Young, Jocelyn Davies and Richard Baker, Working On Country: Contemporary Indigenous Management of Australia’s Lands and Coastal Regions (OUP, 2001) 214. With respect to WA, the anthropological context of a sea country native title claim in the Kimberley was explored in Katie Glaskin, Crosscurrents: Law and Society in a Native Title Claim to Land and Sea (UWA Publishing, 2017). There has been some research into Indigenous governance of sea country in WA, but not as much as in the Queensland context. For example: Geoff Buchanan, ‘“Always Part of Us” : The Socioeconomics of Indigenous Customary Use and Management of Dugong and Marine Turtles: A View From Bardi and Jawi Sea Country, Western Australia’ (North Australian Indigenous Land and Sea Management Alliance, 2009); Bibido McCarthy and Dwayne George, ‘The Kimberley Coast - Saltwater Country - monitoring and management of the coastal and marine zone’ (2011) 94(2) Journal of the Royal Society of Western Australia 417; and Nonie Sharp, ‘Following in the Seamarks: The Salt Water Peoples of Tropical Australia’ (2000) 4(2) Indigenous Law Bulletin 4, 6-7. 29 For example: Shaunnagh Dorsett, ‘Aboriginal Rights in the Offshore: Māori Customary Rights under the Foreshore and Seabed Act 2004 (NZ)’ (2006) 15(1) Griffith Law Review 74; Jacinta Ruru ‘What Could Have Been: The Common Law of Native Title in Land under the Salt Water in Australia and Aotearoa/New Zealand’ (2006) 32(1) Monash Law Review 116; Claire Charters and Andrew Erueti, Māori Property Rights And The Foreshore and Seabed: The Last Frontier (Victoria University Press, 2007); Richard Boast, ‘Foreshore and seabed, again’ (2011) 9(2) The New Zealand Journal of Public and International Law 271; Abby Suszko, ‘One Law For All: Contrasting Visions of Equality and Rights in the New Zealand Foreshore and Seabed Debate’ 7
The NT also has a unique history compared to other Australian jurisdictions in relation to recognising Aboriginal relationships to sea country. It appears that the first time the potential for some kind of legal recognition of these relationships was raised in a formal, Australian settler-state context was the Woodward Royal Commission into Aboriginal Land Rights in the NT (‘Woodward Commission’) in 1973-1974. At this early stage, the claim of Traditional Owners was articulated as the ability to exclude others from areas of sea country adjacent to Aboriginal land for reasons that were ‘in part religious, in part social, and in part economic’.30 These broad expressions of exclusion, that were aimed at gaining Aboriginal control over areas of sea country, were refined as more Indigenous voices were able to articulate what inter-societal control meant from an Indigenous perspective. However, Aboriginal claims to control were also strained through the settler-state legal rights paradigm. Beneficial Aboriginal rights legislation imposed, and related litigation confirmed, limitations on the level of control that Aboriginal people could have over sea country.
The ALRA provided that the NT Legislative Assembly had the power to make laws about entry to the seas adjoining Aboriginal land. The Aboriginal Land Act 1978 (NT) (‘AL Act’) enacted a legal mechanism called a ‘sea closure’.31 Traditional Owners could apply to close the seas adjacent to their land. Yet, holders of commercial fishing licences were exempt from sea closures and were free to continue fishing in those waters.32 In this respect, the legislature prioritised what they labelled as the ‘existing rights’ of commercial fishers, as well as the settler-state’s concern with continuing to control the economic exploitation of the seas. Given the commercial fishing exemptions, the sea closure mechanism only provided Aboriginal people with a very limited ability to control who entered those seas. As a result of this limited control, coupled with the costly and long application process, only two sea closure applications were pursued by Traditional Owners to declaration (in 1983 and 1989).33 In
(2015) 2 Law & History 60; Benjamin Ralston, ‘Where Seas Meet: Reconciling Indigenous and Crown Projections of Marine Space in British Columbia and Aotearoa/New Zealand’ (LLM Thesis, University of Otago, 2014); and Nathan J. Bennett et al, ‘Coastal and Indigenous Community Access to Marine Resources and the Ocean: A Policy Imperative for Canada’ (2018) 87 Marine Policy 186. Also see, more generally: Steve Allen, Nigel Bankes and Øyvind Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart Publishing, 2019) and Natalie C. Ban and Alejandro Frid, ‘Indigenous Peoples’ Rights And Marine Protected Areas’ (2018) 87 Marine Policy 180. 30 Northern Land Council, Submission to Aboriginal Land Rights Commission (January 1974) 129. 31 Aboriginal Land Act 1978 (NT) s 12 (‘AL Act’). 32 Ibid s 18. 33 The two sea closures were Milingimbi, Crocodile Island and Glyde River and Howard Island/Castlereagh Bay: Commonwealth, Office of the Aboriginal Land Commissioner, Annual Report: Report for the year ended 30 June 2005 (21 September 2005) 42 and Anthony Bergin, ‘Aboriginal Sea Claims in the Northern Territory of Australia’ (1991) 15(3) Ocean and Shoreline Management 171, 177. 8
1989, the Chief Minister of the NT (the leader of the NT Government) stated that negotiation would be a ‘far more effective way of dealing with coastal management issues adjoining Aboriginal land than the closure of seas’.34 However, such negotiations, on a Territory-wide scale, were not forthcoming until after the High Court upheld the strong Aboriginal rights to the intertidal zone in the Blue Mud Bay Case.
The aftermath of Mabo v State of Queensland (No 2) (‘Mabo’)35 opened a new potential set of legal rights in the federal context. The first application in Australia for recognition of native title to the sea, in Yarmirr v Northern Territory (‘Yarmirr FC’),36 was made over waters surrounding Croker Island in the NT. The claim was made on an exclusive basis such that the claimants would be able to exclude non-Traditional Owners from the area. Following Mabo, the Native Title Act 1993 (Cth) (‘NTA’) was enacted and required that native title rights and interests be ‘recognised by the common law of Australia’.37 The Commonwealth submitted, in responding to Yarmirr FC (and then at every level of appeal), that no native title rights could be recognised below the low water mark because the settler-state’s ‘radical title’ (an underlying ‘thin’ form of Crown ownership recognised in Mabo as a concomitant of sovereignty)38 did not exist below the low water mark.39 The High Court did not accept this submission, but found in Yarmirr HCA that due to the international right of free passage and the common law public rights to fish and navigate, native title rights were limited to non- exclusive rights.40 Therefore, the claimants could use their sea country, but they could not control who entered or make decisions about their sea country. In effect, the High Court held that the imposition of the international right of free passage and the common law public rights to fish and navigate limited what the settler-state could recognise because those international and public rights took priority over Indigenous rights. This was even though Indigenous interests pre-existed settler-state assertions of sovereignty.
The Blue Mud Bay Case involved both a native title and ALRA claim, but only the latter went to the High Court. The High Court held that there was no reason to read down the rights granted to Indigenous peoples and that, therefore, the intertidal zone was Aboriginal land
34 Elizabeth Ganter, ‘Indigenous Participation in Coastal Management in the Northern Territory, Australia: Issues and Options’ (1996) 33(1-3) Ocean and Coastal Management 193, 202. 35 Mabo v State of Queensland (No 2) (1992) 175 CLR 1 (‘Mabo’). 36 Yarmirr v Northern Territory (1998) 82 FCR 533 (‘Yarmirr FC’). 37 Native Title Act 1993 (Cth) s 223(1)(c) (‘NTA’). 38 Mabo (n 35) 48 (Brennan J). 39 Yarmirr HCA (n 17) Submissions of the Commonwealth, 5. 40 Ibid 68 [98]. 9 even when covered by tidal waters. This outcome presented significant consequences for the settler-state as they could no longer control entry to the intertidal zone. This intertidal zone was an area of coastal waters that the fishing sector relied upon for barramundi and mudcrab. In this context, settler-state laws had provided an inter-societal opportunity for Aboriginal people. The ALRA had granted rights that meant that Traditional Owners had a high level of control over the intertidal zone.
Control over the intertidal zone was a powerful bargaining chip for Traditional Owners. The ALRA was Commonwealth legislation enacted prior to the NT becoming a self-governing territory;41 therefore, the NT could not amend the ALRA. The Commonwealth Government never publicly displayed any appetite to amend the ALRA post the Blue Mud Bay Case.42 While there are potential constitutional elements to this, it seems that it was just as much a policy choice of the Commonwealth to not get involved.43 In effect, the NT’s only options were to negotiate or let Aboriginal people take control of the whole intertidal zone. During the negotiations, the NT Government has sometimes tried to limit the scope by insisting that negotiations can only relate to the intertidal zone or by seeking to control the process.44 At times, some Traditional Owners appear to have accepted these limitations in order to get some concrete benefits.45 This is perhaps unsurprising given the length of the negotiations and the frustrations this has caused. Further, there have been apparent difficulties in determining exactly what Traditional Owners want in terms of control and how that can be achieved. However, since 2016, the Traditional Owners have re-emphasised their aspirations to be involved in governance of the intertidal zone and beyond, and to gain economic benefit from their sea country.46
In the shadow of the fight for legal rights, Indigenous communities have been engaging in, and developing, sea country governance models. A prominent example is the Dhimurru Aboriginal Corporation (‘Dhimurru’) Sea Country IPA in north-east Arnhem Land that was declared in 2000 and significantly expanded in 2013.47 The governance model of the
41 See discussion at: Chapter IV, Part B, Section 2. 42 See discussion at: Chapter VIII, Part C, Section 1(b). 43 Ibid. 44 For example, the comments of the NT Chief Minister in Amos Aikman, ‘NT makes $10m bid to avert fishing closures’, The Australian (online, 22 November 2018) [available through Factiva database]. 45 See discussion at: Chapter VIII, Part D, Section 2. 46 For example, Northern Land Council, ‘Sea Country Planning Finalised for Pilot Areas’, NLC Land Rights News (April 2019) 14
Dhimurru Sea Country IPA aspires to put the Traditional Owners at the centre of governance of their sea country. Dhimurru seeks to lead sea country governance through collaboration by bringing together local stakeholders (government, commercial and recreational fishers) to meet the aspirations of Traditional Owners that they articulate in their Sea Country IPA management plan.48 There are no settler-state legal rights inherent in or emanating from an IPA, instead they are reliant on continuing relationships that recognise shared authority.49 IPAs are also subject to changing government policy directions and the whims of government funding.50 Even with these limitations, the process of drafting and sharing the Dhimurru Sea Country IPA management plan has given Traditional Owners the chance to voice their aspirations in ways that they may not have been able to do if they were relying solely on their legal rights.
Outside of the Sea Country IPA context, contemporary NT Government marine governance planning has sometimes not adequately engaged with Aboriginal people. For example, the NT Government recently released its inaugural Coastal and Marine Management Strategy 2019-2029 (‘Marine Management Strategy’).51 Although the Marine Management Strategy acknowledged the ‘ownership and rights’ of Aboriginal people, and the importance of working together using an ‘integrative management’ model of marine spatial planning, the Northern Land Council (‘NLC’) noted that there had been ‘limited involvement of, or attempts to engage’ Traditional Owners during the formulation of the draft strategy.52 The NLC is the independent statutory body that assists Aboriginal people in the northern part of the mainland of the NT to ‘acquire and manage their traditional lands and seas’.53 The mere fact that the NLC felt that it was not included in the drafting of such an important overarching
48 Dhimurru, Indigenous Protected Area Management Plan 2015-2022 (n 47) 38. 49 Godden and Cowell (n 19) 692-693 and Dermot Smyth, ‘Just Add Water? Taking Indigenous Protected Areas into Sea Country’ in Dermot Smyth and Graeme Ward (eds), Protecting Country: Indigenous Governance and Management of Protected Areas (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2008) 95, 105-106. 50 Lee Godden, ‘The Evolving Governance of Aboriginal Peoples and Torres Strait Islanders in Marine Areas in Australia’ in Steve Allen, Nigel Bankes and Øyvind Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart Publishing, 2019) 123, 127. 51 NT Government, Coastal and Marine Management Strategy (n 8). 52 Ibid 2, 5 and Northern Land Council, Submission to Northern Territory Government Department of the Environment and Natural Resources on Coastal and Marine Management Strategy 2018 (2018) 2
C. Structure of Thesis
This thesis uses a reconciling sovereignties frame to analyse five historical and contemporary episodes. These episodes reveal interactions between assertions of Indigenous sovereignty and settler-state sovereignty in the context of sea country in the NT. The first two chapters provide a background to the frame. Chapter II explains the reconciling sea country sovereignties frame within its international and domestic context. The frame suggests six assertions of sovereignty - three Indigenous and three settler-state - to focus the analysis.54 Chapter III then provides an overview of the anthropological, historical and cultural literature on Indigenous relationships to sea country, in the NT context, that informs the frame.
The five episodes are then set out in Chapters IV to VIII: the Woodward Commission and the debates about sea country in the enactment of the ALRA in the 1970s; the first sea closure hearing and declaration in the early 1980s; the Yarmirr HCA native title decision in 2001; the Blue Mud Bay Case in 2008; and the negotiations following the Blue Mud Bay Case. Finally, Chapter IX analyses the reconciling of sovereignties in the post-Blue Mud Bay Case context outside the formal Blue Mud Bay negotiations. This concluding analysis examines the different approaches of the settler-state and Aboriginal people to two contemporary governance models: the NT Government’s inaugural Marine Management Strategy and the Dhimurru Sea Country IPA. The thesis concludes by recommending ways in which the settler-state can better hear and learn from historical and contemporary Indigenous assertions of sovereignty in relation to sea country.
In applying the reconciling sovereignties frame, this thesis uses a wide range of primary and secondary sources to analyse the episodes. These include transcripts of Aboriginal Land Commissioner hearings; records of parliamentary debates (Hansard); reports of and submissions to Royal Commissions and parliamentary committees; case law; legislation; and articles (academic and newspaper) and books written both at the time and subsequently. The
54 These assertions are set out in: Chapter II, Part D. 12 analysis, most particularly in relation to the Blue Mud Bay negotiations and the operation of the Dhimurru Sea Country IPA, also uses qualitative interviews that were conducted for the purpose of this thesis. These interviews were vital as documentary sources were limited in relation to the contemporary situation.
It is important to note that all these sources have been produced in the inter-societal context which presents potential limitations. This thesis cannot, and does not seek to, provide a comprehensive understanding of Indigenous laws and sovereignties relating to sea country. Instead, the reconciling sovereignties frame aims to draw attention to the times when Indigenous sovereignties have been asserted, explicitly or implicitly, in the inter-societal context.
These five episodes have not previously been analysed together. This is perhaps because, although they all relate to sea country, they emanate from different areas of settler-state law (for example, Aboriginal land rights and native title) and traverse the law/governance divide. This thesis seeks to demonstrate that these episodes form a historical narrative of the reconciling of assertions of sovereignty that has shaped the way the contemporary Blue Mud Bay negotiations have unfolded.
In this context, the thesis argues that the protracted nature of the Blue Mud Bay negotiations has been caused by the underlying struggle of the settler-state to acknowledge, and appropriately respond, to the challenge to the settler-state’s assertion of authority. The Blue Mud Bay negotiations are unlikely to be effectively ‘resolved’ (a term that will be further explored in Chapter II)55 until the settler-state acknowledges Indigenous assertions of sovereignty and addresses how the settler-state and Aboriginal people will govern sea country in the NT as, at a minimum, equal partners in decision-making.
55 See discussion at: Chapter II, Part C, Section 4(c). 13
II. RECONCILING SEA COUNTRY AND MARINE SOVEREIGNTIES
A. Introduction
Revealing interactions between assertions of sovereignty across the five episodes requires, first and foremost, a framework that allows comparison over a range of different contexts: royal commissions; the drafting and enactment of legislation; litigation; the development of environmental governance models; and negotiations. Given the Indigenous/settler-state context, the frame must be capable of analysing assertions of sovereignty in a way that acknowledges the inherent colonial power imbalance, but simultaneously recognises Indigenous self-determination. Further, the frame has to reach beyond settler-state law in two ways: it must see Indigenous legal systems; and it must not be restricted to the formal instruments associated with doctrinal law (case law, statutes) and be able to include consideration of governance mechanisms that come in a wide variety of forms. This chapter explains the reconciling sovereignties frame that has been developed for this thesis.
The concept of ‘reconciling’ as used in this thesis represents a continuing process. It is not being used to attempt to demonstrate a form of neat or finalised ‘reconciliation’ between the settler-state and Indigenous peoples. Rather, it is used to trace the emerging threads of interaction between settler-state and Indigenous assertions of sovereignty. These threads are then used to demonstrate how these assertions exist in a constant dialogue across the five episodes.
Assertions of sovereignty may be anchored in Indigenous laws, settler-state law or international law or they may be expressed in ways that fit within contemporary inter-societal governance approaches. Sovereignty has been selected as the register to describe and analyse the issues at stake in this thesis because it allows us to see the ways in which Indigenous peoples have asserted their power to ‘make decisions and have control over the decisions’ that affect their lives.56 In this context, sovereignty goes beyond settler-state legal rights and reaches into both Indigenous laws and inter-societal experiences of governance.
Sovereignty is not an Indigenous word or concept. It is a word that has roots in a Western philosophical context that is generally grounded in international law. The notion that
56 Larissa Behrendt, ‘Aboriginal Sovereignty: A Practical Roadmap’ in Julie Evans, Ann Genovese, Alexander Reilly and Patrick Wolfe (eds), Sovereignty: Frontiers of Possibility (University of Hawai’i Press, 2013) 163, 164. 14
Indigenous sovereignties survived colonisation, and now continue to co-exist with settler- state sovereignty, forms a separate body of predominantly Canadian literature that this frame is grounded in.57 This co-existence is also a practical reality in Australia; Indigenous sovereignty was never ceded.58 There has been a long history of Indigenous peoples in Australia being ‘regulated by their distinct laws and cultural practices’, as well as actively challenging monopolistic settler-state sovereignty through the courts or political advocacy (for example, calling for treaty).59 This thesis will focus on assertions of sovereignty rather than on the complex questions of legal doctrine (both international law and settler-state) with respect to whether the settler-state or Indigenous peoples (or both) do indeed have sovereignty. However, there are points in the thesis where the coherence of settler-state legal doctrine about monopolistic or pluralist sovereignty will be relevant to the analysis.
Assertions of sovereignty may be explicit or implicit. In relation to implicit assertions, the author of this thesis has a particular role in analysing each potential assertion. The author is a non-Indigenous person who migrated to Australia as a child. In this context, understanding Indigenous research methodologies is vital. Since the late 1990s, there has been an expansion of scholarship, mainly by Indigenous academics, in relation to Indigenous research methodologies.60 The historical focus of much of this thesis necessarily means that many of
57 For example: John Borrows, Recovering Canada: The Resurgence of Indigenous Law (University of Toronto Press, 2007); Kent McNeil, ‘Factual and Legal Sovereignty in North America: Indigenous Realities and Euro- American Pretensions’ in Julie Evans, Ann Genovese, Alexander Reilly and Patrick Wolfe (eds), Sovereignty: Frontiers of Possibility (University of Hawai’i Press, 2013) 37; Kent McNeil, ‘Indigenous Nations and the Legality of European Claims to Sovereignty over Canada’ (n 21); Patrick Macklem, Indigenous Difference and the Constitution of Canada (University of Toronto Press, 2001) 107-131; Jeremy Webber, ‘We Are Still in the Age of Encounter: Section 35 and a Canada beyond Sovereignty’ in Douglas Sanderson and Patrick Macklem (eds), From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (University of Toronto Press, 2015) 63; Mark Walters, ‘“Looking for a knot in the bulrush”: Reflections on Law, Sovereignty, and Aboriginal Rights’ in Douglas Sanderson and Patrick Macklem (eds), From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (University of Toronto Press, 2015) 35; Felix Hoehn, Reconciling Sovereignties: Aboriginal Nations and Canada (University of Saskatchewan Native Law Centre, 2012). 58 Referendum Council, ‘Uluru Statement from the Heart’ (Statement, First Nations National Constitutional Convention, 26 May 2017) (the text can be seen at: ‘The Uluru Statement from the Heart’, The Uluru Statement (Web Page)
In the context of research methodologies, the contemporary interviews that were conducted for this thesis were subject to approval from the university’s ethics committee62 and included an ongoing component of presenting research updates to Dhimurru during the research and at its completion. The author presented several research updates (one in person and the others via video) to Dhimurru. Following submission of this thesis, a summary of the findings and a final oral update on the research will be presented to Dhimurru (and after examination, the full thesis will be provided).
The episodes in this thesis might initially appear as a relatively disjointed history of the recognition of Indigenous sea rights and the emergence of sea country governance in the NT. In particular, the settler-state appeared to lurch from one legal mechanism to the next, without any sense of systematically engaging with Aboriginal people. Meanwhile, Aboriginal people were continuously articulating their aspirations for control over their sea country, including by expressing nuanced versions of what control meant to their communities. The reconciling sovereignties frame allows us to see how these five episodes fit together by demonstrating that Indigenous assertions of sovereignty over sea country are part of an alternative overarching narrative. This chapter has three parts: Part B examines the relevance of legal pluralism as a base for the frame; Part C considers what a reconciling sovereignties analysis means in practice; and with this context, Part D then defines six assertions of sovereignty - three Indigenous and three settler-state - in the specific context of the NT.
B. Legal Pluralism: Indigenous and Settler-State Legal Systems Co-Exist
Theories of legal pluralism form the base of the reconciling sovereignties frame. Broadly, theories of legal pluralism emphasise that different legal orders can co-exist. This notion of
Walter (ed), Social Research Methods (OUP, 2nd ed, 2009) 1; and Linda Tuhiwai Smith, Decolonising Methodologies: Research and Indigenous Peoples (Zed Press, 2012). 61 Ambelin Kwaymullina, Blaze Kwaymullina and Lauren Butterly, ‘Living Texts: A Perspective on Published Sources’ (2013) 6(1) Indigenous Research Methodologies and Indigenous Worldviews 1, 9-10. 62 Ethics Approval HC14309. 16 co-existing legal orders can be challenging to apply in the Indigenous/settler-state context because of the dominant, or arguably normative, nature of settler-state legal orders in jurisdictions such as Australia. However, there is a model of legal pluralism that sees Indigenous and settler-state legal orders as constantly negotiating with one another.63 This displaces the assumption that there is one normative order.64 Once it is accepted that Indigenous laws and settler-state laws continue to co-exist, this suggests that there are also co-existing assertions of sovereignty.
Theories of legal pluralism have developed understandings of the multiple legal orders that can co-exist.65 This challenges the central position of settler-state law and allows for other legal orders, such as Indigenous legal systems,66 to be seen.67 The existence of legal pluralism is evidenced in Australian scholarship and existing state law. Indigenous academics Irene Watson and Ambelin and Blaze Kwaymullina have provided detailed explorations of Indigenous legal systems.68 Watson stated: ‘The law is everywhere, we breathe it, we eat it, we sing it, we live it’.69 Indigenous laws have been recognised in common law native title and in the NTA.70 This demonstrates an instance where Indigenous laws were incorporated into settler-state law (a form of inter-societal recognition). Whereas, there are other instances where Indigenous laws and legal systems in Australia exist in a more self-determined form but may interact with settler-state law.71 For example, at the trial hearing of the Blue Mud Bay
63 Jeremy Webber, ‘Legal Pluralism and Human Agency’ (2006) 44 Osgoode Hall Law Journal 167, 189. 64 Ibid 190. 65 Brian Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30(3) Sydney Law Review 375 and Margaret Davies, ‘Legal Pluralism’ in Peter Cane and Herbert M Kritzer (eds), The Oxford Handbook of Empirical Legal Research (OUP, 2010) 805. 66 For early work in this area see: MB Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Clarendon Press, 1975) 345-356. 67 John Griffiths, ‘What is Legal Pluralism?’ (1986) 18(24) Journal of Legal Pluralism and Unofficial Law 1, 4. 68 Ambelin Kwaymullina and Blaze Kwaymullina, ‘Learning to Read the Signs: Law in an Indigenous Reality’ (2010) 34(2) Journal of Australian Studies 195; Irene Watson, ‘Indigenous Peoples’ Law-Ways: Survival Against the Colonial State’ (1997) 8(1) Australian Feminist Law Journal 39; Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge, 2015); Irene Watson, ‘Buried Alive’ (2002) 13(3) Law and Critique 253. Also see: Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (ALRC Report 31, 1986)
Case (Gumana v Northern Territory (‘Gumana FC’)),72 evidence of Yolngu rom (Yolngu law) about sea country was expressed in bark paintings that were collected in a book to explain Yolngu rom to non-Indigenous lawyers and judges.73
One of the difficulties of legal pluralism is defining what ‘law’ is.74 Several key scholars have raised this issue and have, as a result, come to question the value of legal pluralism as a distinct theory. Legal anthropologist Sally Falk Moore identified conceptual difficulties with defining law too broadly as it could become ‘virtually indistinguishable from the study of the obligatory aspect of all social relationships’.75 In this vein, Sally Engle Merry asked: ‘Where do we stop speaking of law and find ourselves simply describing social life?’76 Brian Tamanaha suggested that legally pluralist studies ‘almost uniformly suffer’ from the problem that ‘they are unable to distinguish “law” from other forms of normative order’.77 This conceptual issue is heightened in relation to Indigenous laws and legal systems because, as is exemplified by Watson’s reflection above, ‘law is everywhere’.78 Ambelin and Blaze Kwaymullina noted that many of the conflicts between Indigenous and non-Indigenous ‘ways of knowing’, including how law is understood, are ‘derived from a clash between a reductionist view of the world and a holistic one’.79 A reductionist view of law would not be suitable for research involving Indigenous legal systems. It would also not be suitable for research about environmental governance that invariably combines an analysis of elements of law, policy and ongoing relationships.
In the context of this thesis, there are two approaches that can simultaneously be used to respond to this conceptual issue. First, recent empirical legal pluralist research has started to move away from a focus on bodies of law, and instead focus on analysing the ways in which ‘local peoples engage and construct various normative orders in specific contexts’.80 This is tied to the critical legal theory movement.81 Critical legal pluralism is focused on ‘citizen-
72 Gumana v Northern Territory (2005) 141 FCR 457 (‘Gumana FC’). 73 Ibid 466 [22] and Buku-Larrngay Mulka Centre (n 24). 74 Tamanaha (n 65) 376. 75 Sally Falk Moore, Law as Process: An Anthropological Approach (Routledge, 1978) 220. 76 Sally Engle Merry, ‘Legal Pluralism’ (1988) 22(5) Law & Society Review 869, 878. 77 Tamanaha (n 65) 392. Also see: John Griffiths, ‘The Idea of Sociology of Law and its Relation to Law and to Sociology’ in Michael Freeman (ed), Law and Sociology (OUP, 2006) 64. 78 Watson, ‘Indigenous Peoples’ Law-Ways’ (n 68) 39. 79 Kwaymullina and Kwaymullina (n 68) 196. 80 Davies (n 65) 806. 81 Carwyn Jones, New Treaty, New Tradition: Reconciling New Zealand and Maori Law (University of British Columbia Press, 2016) 43. Macklem also noted the potential impact of critical legal pluralism in the Canadian context: Macklem, ‘Indigenous Peoples and the Ethos of Legal Pluralism in Canada’ (n 71) 29. 18 subjects’ and ‘calls attention to the role of these subjects in generating normativity’.82 As explained by Roderick Macdonald and Martha-Marie Kleinhans, ‘[l]egal subjects are “law inventing” and not merely “law abiding”’.83
Second, the need to define law in a reductionist way can be usefully challenged. Margaret Davies noted that by ‘demanding justifications for classifying non-state norms as “law”, we deflect attention from providing an adequate justification for the status of state law as “law”’.84 The view that the ‘law’ is a ‘monopoly of the state’ is part of the ‘success’ of the colonial project.85 Whereas, part of examining the dynamic relationship between Indigenous laws and settler-state laws is to question the asserted monopolistic position of the state’s legal orders.
Carwyn Jones’ monograph New Treaty, New Tradition: Reconciling New Zealand and Maori Law86 theorised how these two approaches interact, and how they can be useful to an examination of the relationship between Indigenous and settler-state normative orders. Jones started by noting that recognising Indigenous law as law ‘only goes part-way towards addressing Indigenous peoples’ concerns’, and that other concerns include ‘legitimacy, authority, and political power within official legal systems’.87 The advantage of critical legal pluralism is that it decentres settler-state law and allows ‘space for a project of Indigenous peoples’ self-determination’.88 The disadvantage of critical legal pluralism is that it does not reflect the inherently social nature of legal orders and puts too much emphasis on an individual legal subject’s perspective.89 This disadvantage is particularly felt where there is one dominant order, which is often the relationship between Indigenous and settler-state legal and normative orders. For this reason, Jeremy Webber argued that critical legal pluralism goes too far in its approach to decentering settler-state law.90 Webber suggested that an
82 Roderick Macdonald and Martha-Marie Kleinhans, ‘What is a Critical Legal Pluralism?’ (1997) 12(2) Canadian Journal of Law and Society 25, 38. 83 Ibid 39. 84 Davies (n 65) 821. Davies was drawing on Boaventura de Sousa Santos, Toward a New Legal Common Sense (Butterworths, 2nd ed, 2002). 85 Tamanaha (n 65) 379. 86 Jones (n 81). 87 Ibid 45. 88 Ibid 46. 89 Ibid 46-47. Also see: Webber, ‘Legal Pluralism and Human Agency’ (n 63). 90 Webber, ‘Legal Pluralism and Human Agency’ (n 63) 189. 19 alternative model of legal pluralism sees legal and normative orders continuously negotiating with one another.91
Jones submitted that both Webber’s critique of critical legal pluralism and his suggested alternative model are useful.92 Critical legal pluralism can have the effect of decentering all legal institutions ‘in deference to the legal subject’.93 This focus on individual legal subjects might only allow parallel co-existence (without Indigenous legal orders being in a dialogue with settler-state legal orders). Whereas, Webber’s model re-centres the relationship between Indigenous and settler-state legal orders.94 In this context, Jones noted that Webber’s model is consistent with Indigenous self-determination because it emphasises the ‘social aspect of the construction of normative orders to manage disagreement’.95 For the purposes of this thesis, another strength of Webber’s conceptualisation is that it allows a narrative to be developed across episodes. For example, this dialogue between legal and normative orders can take place through litigation between Indigenous peoples and the settler-state within the settler- state legal system, and can equally take place through implementation of an Indigenous-led collaborative governance model such as a Sea Country IPA.
Once it is accepted that Indigenous laws and settler-state laws continue to co-exist, the basis of any monopolistic assertion of settler-state sovereignty is open to question. As noted by Sean Brennan, Brenda Gunn and George Williams, ‘[a]t its most general, sovereignty is about the power and authority to govern’.96 Therefore, this dialogue between Indigenous and settler-state legal and normative orders demonstrates assertions of sovereignty.
C. Reconciling Indigenous and Settler-State Assertions of Sovereignty
Sovereignty is a powerful but contested concept. Patrick Macklem suggested that it is because ‘sovereignty is a contested site of interpretation, [that] it remains open to transformation and application to diverse forms of human association’.97 There is a vast
91 Ibid 189. 92 Jones (n 81) 48. 93 Ibid 48. 94 Ibid and Webber, ‘Legal Pluralism and Human Agency’ (n 63) 190. 95 Jones (n 81) 48. Jones also noted that Tamanaha used a version of legal pluralism that is useful to Indigenous self-determination and, similarly to Webber, recognised that normative orders are not independent of each other: at 48-49. Also see: Tamanaha (n 65) 403. 96 Sean Brennan, Brenda Gunn and George Williams, ‘“Sovereignty” and its Relevance to Treaty-Making Between Indigenous Peoples and Australian Governments’ (2004) 26(3) Sydney Law Review 308, 311. 97 Macklem, Indigenous Difference and the Constitution of Canada (n 57) 108. 20 amount of historical and contemporary scholarship on sovereignty and its meanings.98 In setting out the framework, this thesis does not need to engage fully with this wider sovereignty scholarship. Rather, it engages with a subset of this scholarship that focuses on the relationship between Indigenous peoples and settler-states. The base of this subset of scholarship is that two sovereignties can exist simultaneously in settler-states: Indigenous sovereignties and settler-state sovereignty. This presents two initial questions that need to be addressed: first, how does a legally pluralist notion of sovereignty fit with the international law understanding of sovereign states; and second, how can these sovereignties co-exist?
1. Sovereignty, International Law and Settler-States
The international law understanding of sovereignty as independent states is perhaps the most common interpretation of the term in Western legal philosophy.99 This notion of sovereignty is based on equal sovereigns, in the form of nation-states, having power over their own territory. Jean Bodin has been credited with first describing this modern version of sovereignty in his influential 1576 publication Six Bookes of a Commonweale.100 Bodin’s descriptions underlie the Westphalian state system that became prominent first in Europe, then internationally.101 In this context, ‘[s]overeignty is the foundation of international law, and the Treaty of Westphalia of 1648 is traditionally viewed as articulating a version of sovereignty that has prevailed since then’.102 In effect, this meaning of sovereignty has two elements: status as a state at international law and ultimate decision-making power over the lands and peoples in a territory.103
98 The scholarship on sovereignty is so vast it is almost impossible to pick a few influential publications. For example: Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (MIT Press, 1985); Francis Hinsley, Sovereignty (Cambridge University Press, 2nd ed, 1986); Michael Ross Fowler and Julie Marie Bunck, Law, Power, and the Sovereign State: The Evolution and Application of the Concept of Sovereignty (Pennsylvania State University Press, 1995); John Hoffman, ‘Blind Alleys: Can We Define Sovereignty?’ (1997) 17(1) Politics 53; Stephen Krasner (ed), Problematic Sovereignty: Contested Rules and Political Possibilities (Columbia University Press, 2001); Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (Cambridge University Press, 2009). 99 Macklem, Indigenous Difference and the Constitution of Canada (n 57) 108-109. 100 McNeil, ‘Factual and Legal Sovereignty in North America’ (n 57) 39. 101 Ibid 40. 102 Antony Anghie, ‘Western Discourses of Sovereignty’ in Julie Evans, Ann Genovese, Alexander Reilly and Patrick Wolfe (eds), Sovereignty: Frontiers of Possibility (University of Hawai’i Press, 2013) 19, 21. There were also links made to this form of sovereignty and natural law (by philosophers such as Hugo Grotius, Samuel von Pufendrof and Emmerich de Vattel), but by the 19th century ‘the positive sources and limited scope of international law was acknowledged’: Kent McNeil, ‘Sovereignty and Indigenous Peoples in North America’ (2016) 22(2) UC Davis Journal of International Law & Policy 81, 94. 103 Webber separated these out as two different meanings of sovereignty: Webber, ‘We Are Still in the Age of Encounter’ (n 57) 77-81. 21
International law is often described as the legal basis of the Crown’s claim to sovereignty in settler-states. In turn, this is often referred to as the doctrine of discovery. European nations that ‘discovered’ new states ‘gained real property rights to native lands and sovereign powers over native peoples and governments merely by finding lands unknown to other Europeans and planting their flag in the soil’.104 In the settler-state context, international law ‘developed techniques for differentiating between and subordinating certain societies and designating them non-sovereign, while affirming and reinforcing the powers of other, usually Western societies’.105 Indigenous peoples were designated non-sovereign in international law, while the settler-state became the recognised sovereign. Of course, this did not mean that Indigenous peoples were not sovereign, just that the body of international law did not recognise their assertions of sovereignty.106 As Kent McNeil argued, ‘surely it is inappropriate’ for Indigenous peoples to have to meet this conception of sovereignty that was developed in Europe for particular political needs at that time in history.107 In the contemporary context, John Borrows stated that: ‘Failure to question the Crown’s assertions of underlying title and exclusive sovereignty while Aboriginal assertions are subject to strict scrutiny appears to create a bias in the law in favour of non-Aboriginal groups’.108
There is also an increasing amount of scholarship questioning the ‘classic’ international law nation-state sovereignty.109 This critique has included commentary on the increasing power of non-state actors, economic globalisation and the growing importance of transnational norms.110 Such literature is relevant to the relationship between Indigenous peoples and contemporary settler-states given the emergence of Indigenous peoples as a prominent non- state actor in international law.111 However, this thesis is concerned with another form of critique that advocates two sovereignties existing simultaneously in the domestic context.
104 Robert Miller, ‘The Doctrine of Discovery’ in Robert Miller, Jacinta Ruru, Larissa Behrendt and Tracey Lindberg (eds), Discovering Indigenous Lands (OUP, 2010) 1, 4. 105 Anghie (n 102) 23. 106 McNeil, ‘Factual and Legal Sovereignty in North America’ (n 57) 41. 107 Ibid. 108 Borrows, Recovering Canada (n 57) 116. 109 For example, Dominik Zaum, The Sovereignty Paradox: The Norms and Politics of International Statebuilding (OUP, 2007); Fowler and Bunck (n 98); Hoffman (n 98); Krasner (ed) (n 98). 110 For example, John Bodi, ‘Sovereignty from a World Polity Perspective’ in Stephen Krasner (ed), Problematic Sovereignty: Contested Rules and Political Possibilities (Columbia University Press, 2001) 53. 111 For example, Megan Davis, ‘To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On’ (2012) 19 Australian International Law Journal 17, 18; James Anaya, Indigenous Peoples in International Law (OUP, 2nd ed, 2004); Lauren Butterly and Erika Techera, ‘Critical Linkages: Trans-jurisdictional Approaches to Advancing Indigenous Marine Governance’ in Cameron Holley, Rosemary Rayfuse and Janice Gray (eds), Trans-jurisdictional Water Law and Governance (Routledge, 2016) 79-98. 22
Before turning to explore that critique, it is important to emphasise that, as will be seen later in this chapter,112 international law is the predominant basis for the contemporary Australian settler-state’s claim to sovereignty over the marine area.
2. How Can Indigenous and Settler-State Sovereignties Co-Exist?
There is a substantial body of literature that argues that Indigenous sovereignties survived colonisation and now continue to co-exist with settler-state sovereignty.113 Some Indigenous academics, such as Gerald Taiaiake Alfred, have suggested that use of the European word ‘sovereignty’ can skew the debate ‘in favour of a European conception of a proper relationship’.114 As noted earlier in this chapter,115 one of the challenges for this analytical frame is to articulate assertions of sovereignty that avoid ‘Eurocentric notions of sovereignty that were used in the past, and are still relied upon today to deny sovereignty to Indigenous peoples …’.116 Macklem argued that ‘[n]othing inherent in the concept of sovereignty dictates a particular institutional form’ or mode of exercise and that, therefore, Indigenous laws and understandings can influence the way in which the term is interpreted.117 Even so, the notion of Indigenous sovereignty is unsettling in the settler-state context. Mark Walters spoke of debates about sovereignty as an ‘existential challenge’ threatening the ‘basic fabric…of the legal order’.118 Audra Simpson stated that ‘nothing is simultaneously so certain and yet so fraught with precariousness as the practice of sovereignty’.119 The assertion of Indigenous sovereignties has the potential to undermine the absolute authority of the settler- state.
This co-existence of sovereignties requires a re-definition of what sovereignty is away from the international law doctrine. International law-based sovereignty is premised on there being one sovereign that has ultimate decision-making power and authority over the territory and
112 See discussion at: Part D, Section 3 of this chapter. 113 See all references at: (n 57). 114 Report of the Royal Commission on Aboriginal Peoples (Canada) (Final Report, October 1996) vol 2, 108. Also see: Taiaiake Alfred, Peace, Power, and Righteousness: An Indigenous Manifesto (OUP, 2nd ed, 2009) 54 and Taiaiake Alfred, ‘Sovereignty’ in Joanne Barker (ed), Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination (University of Nebraska Press, 2005) 33, particularly 38-42. 115 See discussion at: Part A of this chapter. 116 McNeil, ‘Sovereignty and Indigenous peoples in North America’ (n 102) 83. 117 Macklem, Indigenous Difference and the Constitution of Canada (n 57) 112. 118 Walters, ‘Reflections on Law, Sovereignty, and Aboriginal Rights’ (n 57) 38. 119 Audra Simpson, ‘Under the Sign of Sovereignty: Certainty, Ambivalence, and Law in Native North America and Indigenous Australia (Book Review)’ (2010) 25(2) Wicazo Sa Review 107, 107. 23 peoples.120 However, sovereignty can also be understood as having an internal aspect that represents the political and legal authority within a nation state.121 Even within the settler- state context, assertions of sovereignty are made at local, regional (for example, in Australia, State/Territory) and national levels. Macklem suggested that Indigenous sovereignties do ‘not differ from other manifestations of internal sovereign authority in Canada. It represents one strand of a large web of entities that exercise some degree of sovereign authority over land and people.’122 Macklem viewed Indigenous sovereignties as part of domestic public law and governance in settler-states.123 In the Australian context, Larissa Behrendt submitted: ‘[I]t is a falsehood that the recognition of Aboriginal sovereignty is a threat to Australian sovereignty and the two cannot [co] exist.’124 In fact, in the Australian context, co-existence of sovereignties is a practical reality.
3. Australian Context: Co-Existing Sovereignties as a Practical Reality
As noted in the introduction to this chapter, this thesis is focused on assertions of sovereignty and not whether the settler-state or Indigenous peoples (or both) do indeed have legal sovereignty. However, there are points in this thesis where the coherence of legal doctrine about monopolistic or pluralist sovereignty are relevant to the analysis. At a general level, Indigenous sovereignties pre-existed the Australian settler-state and survived it.125 Aboriginal nations have their own words to describe their legal systems and sovereignty comes from Indigenous laws.126 The analysis of the evidence presented in Gumana FC in Chapter VII127 demonstrates that Yolngu rom (Yolngu law) was performed to explain its day to day prominence and power in Yolngu life: ‘the sovereignty of rom’.128 In doing so, these performances demonstrated the continuing assertions of Yolngu sovereignty that co-exist with settler-state sovereignty.129 This demonstration was able to take place within the
120 Webber, ‘We Are Still in the Age of Encounter’ (n 57) 77-78. 121 Macklem, Indigenous Difference and the Constitution of Canada (n 57) 109-110. 122 Ibid 111. Also see: Paul McHugh, Aboriginal Societies and the Common Law: A History of Aboriginal Societies and the Common Law (OUP, 2004) 61-68. 123 This idea was also picked up in the Australian context by: Larkin and Galloway (n 58). 124 Behrendt (n 56) 175. 125 See sources at: (n 58). 126 For example: ‘Tjukurrpa is the Anangu word for The Law. The Meriam people of Mer refer to Malo’s Law.’: Referendum Council, Final Report of the Referendum Council (n 58) 17. 127 See discussion at: Chapter VII, Part B, Section 2. 128 Morphy, ‘Performing Law’ (n 2) 33. 129 Ibid 44-47. 24 confines of a settler-state court that exists within a system that has resisted direct legal challenges to settler-state sovereignty.
In 1978, Wiradjuri man Paul Coe applied to the High Court for leave to amend a statement of claim to include, inter alia, that ‘Captain James Cook…wrongfully proclaimed sovereignty’.130 The High Court rejected this application.131 In refusing the amendment, Justice Jacobs stated that the ‘Crown’s proclamation of sovereignty and sovereign possession … are not cognisable in a court exercising jurisdiction under that sovereignty which is sought to be challenged’.132 This sentiment was echoed in Mabo.133 Even though the High Court did not accept the concept of terra nullius, the majority held that the Crown’s acquisition of sovereignty ‘over the several parts of Australia cannot be challenged in a municipal court’.134 In this context, Mick Dodson argued that post-Mabo, ‘the foundations of the sovereignty of the Australian state remains a mystery’.135 However, as will be explored in Chapters VI and VII, the Aboriginal claims in both Yarmirr HCA and the Blue Mud Bay Case challenged the way settler-state sovereignty operates over sea country.136 In that context, the acquisition of sovereignty was not challenged, but the extent of what that acquisition gave to the settler- state was challenged. The marine space was different to land. It was not as easy as saying that the settler-state had ‘radical title’, as had been the High Court’s answer in Mabo.137 Instead, the sovereign rights and interests of the settler-state in the marine space had to be defined and then weighed against the Indigenous claims.
Outside of the court system, there is a strong history of Indigenous challenges to settler-state sovereignty through political mechanisms. One example was the Aboriginal Tent Embassy that was set up on the lawns of Old Parliament House on Australia Day (26 January) 1972.138 The Aboriginal Tent Embassy has continued to advocate for Aboriginal sovereignty ever
130 Coe v Commonwealth (1979) 53 ALJR 403, 404 [1] (Gibbs J). Also see: Expert Panel on Constitutional Recognition of Indigenous Australians (n 59) 207-208. 131 Expert Panel on Constitutional Recognition of Indigenous Australians (n 59) 207-208. 132 Coe v Commonwealth (n 130) 410 [3] (Jacobs J). 133 Mabo (n 35) 69 (Brennan J; Mason CJ and McHugh J agreeing). 134 Ibid. Also see: Brennan, Gunn and Williams (n 96) 323-325. The authors of this article noted that the court made some important references to Indigenous sovereignty: at 324. 135 Michael Dodson, ‘Sovereignty’ (2002) 4 Balayi: Culture, Law and Colonialism 13, 18. 136 As the majority noted in Mabo: ‘courts do have jurisdiction to determine the consequences of the acquisition of sovereignty’: Brennan, Gunn and Williams (n 96) 324. Also see: Mabo (n 35) 32 (Brennan J; with Mason CJ and McHugh J agreeing). 137 Justice Brennan described radical title as ‘a postulate of the doctrine of tenure and a concomitant of sovereignty’: Mabo (n 35) 48. 138 Expert Panel on Constitutional Recognition of Indigenous Australians (n 59) 207; Scott Robinson, ‘The Aboriginal Embassy: An Account of the Protests of 1972’ in Gary Foley, Andrew Schapp and Edwina Howell (eds), The Aboriginal Tent Embassy: Sovereignty, Black Power, Land Rights and the State (Routledge, 2013) 3. 25 since.139 In 1988 (the year of Australia’s settler-state bicentenary), there was an ‘Aboriginal Sovereign Treaty ‘88 Campaign’ that ‘renewed calls for recognition of … sovereign rights’.140 That same year, Galarrwuy Yunupingu and Wenten Rubuntja presented then Prime Minister Bob Hawke with the Barunga Statement that called for the ‘Commonwealth Parliament to negotiate with us a Treaty recognising our prior ownership, continued occupation and sovereignty …’.141 As at the time of writing, the Commonwealth has not negotiated a treaty. Most recently, in 2017, the Uluru Statement from the Heart proposed ‘sequenced reform in which a Voice to Parliament is the first step, and treaty-making follows’.142 However, the Commonwealth Government has not committed to either a constitutionally enshrined Voice to Parliament or treaty making.143 This contemporary context is explored in Chapter VIII144 as it is essential to understanding the Blue Mud Bay negotiations. In that chapter, the exploration is grounded in the broader context of negotiated agreements that have allowed Indigenous peoples to express assertions of sovereignty in ways that are not so constrained by settler-state legal orders.
After considering how Indigenous and settler-state sovereignties can co-exist, the next section examines the reconciling of assertions of sovereignties. Scholars have used multiple approaches to conduct this type of analysis and no single coherent analytical frame has emerged. Therefore, the next section starts by considering the broader reconciling sovereignties scholarship that informs the framework developed for this thesis.
4. What Does a Reconciling Sovereignties Analysis Involve?
There are three elements that need to be addressed when considering what the reconciling sovereignties analysis involves. The first is to define what the concept of ‘reconciling’ means. This analytical concept does not necessarily have the resolving nature of the term
139 This included providing a submission to the Expert Panel: Expert Panel on Constitutional Recognition of Indigenous Australians (n 59) 207. 140 Ibid 208. 141 Ibid. Also see: Aboriginal Land Councils and NT Government, The Barunga Agreement: A Memorandum of Understanding to Provide for the Development of a Framework for Negotiating a Treaty with the First Nations of the Northern Territory of Australia (8 June 2018) 5
‘reconciliation’. It is particularly important to contextualise the concept of reconciling within the historical and contemporary understanding of reconciliation in Australia. The second element is to explain why most of the scholars referenced in this section are Canadian and to justify why their scholarship is applicable to the context of this thesis. Finally, the operational elements of the frame are then discussed; in particular, Webber’s conceptualisation of reconciling sovereignties as continuing tensions.
(a) Reconciliation in the Context of Indigenous/Settler-State Sovereignties
The concept of reconciliation is highly contested. The analysis in this section is focused on reconciliation in settler-state contexts as distinct from the wider concept of reconciliation in political theory.145 Jones noted that reconciliation can be problematic for Indigenous peoples as it is ‘often deployed to encourage Indigenous peoples to “forgive and forget”’.146 Reconciliation may be seen as a top-down, state-sanctioned and state-centric program. In particular nation states it might conjure up formal state-sanctioned reconciliation efforts. In the Australian context, for example, the Council for Aboriginal Reconciliation (‘CAR’) was set up by the Commonwealth Government in 1991 to, inter alia, undertake initiatives to promote reconciliation between Indigenous peoples and the ‘wider Australian community’.147 The CAR has been criticised as a nation-building exercise that legitimised the settler-state while restricting Indigenous aspirations.148 One of the common critiques of these state- sanctioned reconciliation processes, including CAR, is that they did not address issues of Indigenous sovereignty.149
More broadly, state-sanctioned reconciliation processes were seen to be requiring Indigenous peoples to accept the assertion of settler-state sovereignty, but the state did not have to concede or give something up in return. There was not a reconciliation between settler-state
145 Several authors have sought to place settler-state reconciliation within this wider theory of reconciliation, for example: Walters, ‘The Jurisprudence of Reconciliation’ (n 21) 165 and Damien Short, Reconciliation and Colonial Power: Indigenous Rights in Australia (Ashgate, 2008) Chapter 2. 146 Jones (n 81) 57. 147 Council for Aboriginal Reconciliation Act 1991 (Cth) s 6(1)(a). Relevantly, the CAR did outline recommendations in relation to hunting, gathering and fishing (including opportunities for commercial exploitation): Cathy Robinson and David Mercer, ‘Reconciliation in Troubled Waters: Australian Oceans Policy and Offshore Native Title Rights’ (2000) 24(4) Marine Policy 349, 355. 148 Short (n 145) 169. Short also observed that: ‘Australian reconciliation was born out of a political desire to deflect the growing campaign for a treaty in the 1980s’. 149 Ibid 165. Also see: Borrows, Recovering Canada (n 57) 98. 27 and Indigenous peoples because it was only one-sided.150 As Borrows stated: ‘Reconciliation should not be a front for assimilation.’151 These sorts of critiques of state-sanctioned reconciliation processes have become increasingly common, particularly in Canada and Australia.152 As a result, reconciliation has become a ‘dirty word’ for many Indigenous peoples.153 There is a strong sense that settler-state institutions cannot ‘achieve a more satisfactory relationship with Indigenous people without some reconsideration of their claims’ to sovereignty.154
With these criticisms firmly in mind, it is important to define the way in which the concept of reconciling is being used in this thesis. The reconciling sovereignties frame adopted here does not suggest that there will be, at some point, a neat resolution of assertions of sovereignty (or a neat substantive resolution of the Blue Mud Bay negotiations). Further, the frame adopted here does not seek to determine the deeply political contestation of which assertions of sovereignty are more legitimate, based on principles of justice.155 Instead, this thesis analyses the interactions between settler-state and Indigenous assertions of sovereignty to demonstrate how these assertions exist in a constant dialogue. In this context, the term reconciling is used primarily in a descriptive sense. The episodes are interpreted by capturing the way they configure the relationship between competing claims to sea country based in rival sources of asserted authority. This interpretation is then used to comparatively analyse these interactions, between Indigenous and settler-state assertions of sovereignty, across the episodes.
Focusing on the dialogue between concurrent assertions of sovereignty allows us to look beyond ‘who holds the trump card’, which inevitably puts us in a position where ‘we end up stumbling over who should ultimately prevail before we have even begun to talk’.156 In this
150 Borrows, Recovering Canada (n 57) 72. 151 John Borrows, ‘Domesticating Doctrines: Aboriginal Peoples after the Royal Commission’ (2001) McGill Law Journal 615, 660-661. Borrows noted of the Canadian courts: ‘Courts have read Aboriginal fights to lands and resources as requiring a reconciliation that asks much more of Aboriginal peoples than it does of Canadians.’: 660-661. 152 For example: Ibid; Short (n 145); Audra Simpson, ‘Reconciliation and its Discontents: Settler Governance in an Age of Sorrow’, University of Saskatchewan Youtube Channel (Video, 15 March 2016)
(b) Relevance of Canadian Context of Reconciling Sovereignties Scholarship
Despite the rich discussions of Indigenous sovereignties that have challenged Australian settler-state political, legal and academic perspectives, the scholarship on reconciling sovereignties has developed in a more explicit way in Canada. This is because some Canadian settler-state institutions have acknowledged that ‘Crown sovereignty does not have all of the attributes of lawful authority’.158 The Canadian Supreme Court explicitly uses the concept of reconciliation in its jurisprudence and has ‘begun to qualify its references to Crown sovereignty’ by speaking of ‘asserted’ and ‘assumed’ Crown sovereignty.159 Although the Supreme Court of Canada has not formally recognised the existence of continuing Indigenous sovereignties,160 by ‘allowing doubt’ about the primacy of Crown sovereignty ‘to creep in where it was once excluded’, the Canadian jurisprudence has led to new forms of analysis of sovereignties and reconciliation.161
Webber noted that, in this context, Canadian courts have always emphasised that ‘the requirement of reconciliation is the driving force underlying section 35’ of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK).162 Section 35 ‘recognized and
157 Ibid 99. 158 Walters, ‘The Jurisprudence of Reconciliation’ (n 21) 186. 159 Webber, ‘We Are Still in the Age of Encounter’ (n 57) 71. Several articles (other than those already referenced) have contributed to the doctrinal analysis in this area. For example: Kim Stanton, ‘Reconciling Reconciliation: Differing Conceptions of the Supreme Court of Canada and the Canadian Truth and Reconciliation Commission’ (2017) 26 Journal of Law and Social Policy 20; Kent McNeil, ‘Reconciliation and the Supreme Court: The Opposing Views of Chief Justices Lamer and McLachlin’ (2003) 2(1) Indigenous Law Journal 1; Kent McNeil, ‘Book Review: The Doctrine of Discovery Reconsidered: Reflecting on Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (2016) 53 Osgoode Hall Law Journal 699; Kent McNeil, ‘Reconciliation and Third-Party Interests: Tsilhqot’in Nation v British Columbia’ (2010) 8(1) Indigenous Law Journal 7; Michael McCrossan, ‘Shifting judicial conceptions of “reconciliation”: Geographic Commitments Underpinning Aboriginal Rights Decisions’ (2013) 31(2) Windsor Yearbook of Access to Justice 155; Tracey Lindberg, ‘Contemporary Canadian Resonance of an Imperial Doctrine’ in Robert Miller, Jacinta Ruru, Larissa Behrendt and Tracey Lindberg (eds), Discovering Indigenous Lands (OUP, 2010) 126-170. 160 Webber, ‘We Are Still in the Age of Encounter’ (n 57) 71. However, there has been one occasion where one Supreme Court judge (with another judge agreeing) appeared to suggest that Indigenous sovereignty may continue to exist: Mitchell v Minister of National Resources [2001] 1 SCR 911 [129]-[130] (Binnie J): at 71. Also see: Doug Moodie, ‘Thinking Outside the 20th Century Box: Revisiting “Mitchell”: Some Comments on the Politics of Judicial Law-Making in the Context of Aboriginal Self-Government’ (2003–04) 35 Ottawa Law Review 1. 161 Webber, ‘We Are Still in the Age of Encounter’ (n 57) 71. 162 Ibid and Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11, s 35. 29 affirmed’ the rights of ‘the aboriginal peoples of Canada’.163 It was enacted as part of Canada’s newly patriated Constitution Act, 1982 and was the result of the ‘insistence of many Aboriginal governments’.164 There has been extensive case law and scholarship interpreting s 35,165 but Borrows has noted that one of the challenges of interpreting the section was that ‘no one was quite sure what Aboriginal rights were, and therefore what, if anything, was being protected’.166 Webber admitted that it is unusual to speak of rights protected by s 35 in terms of sovereignty because the ‘dominant language of Indigenous rights in Canada has been proprietary’.167 However, it appears that s 35 has played an important role in the Canadian Supreme Court’s jurisprudence about sovereignty as well as the associated development of the jurisprudence on reconciliation.
Australian settler-state institutions have not exhibited the same doctrinal or normative tone in relation to reconciliation or settler-state sovereignty as the Canadian Supreme Court. Australia also does not have an equivalent of s 35. This, in itself, does not diminish the value of the Canadian scholarship on reconciling sovereignties to the broader Australian context for at least two reasons: first, the Canadian scholarship reaches beyond the courts (in fact, Webber argued it is a ‘great mistake’ to think that such conversations are the ‘exclusive province of the courts’);168 and second, even in the limited context of settler-state courts, all Indigenous rights cases are about reconciling Indigenous and non-Indigenous interests that have roots in co-existing assertions of sovereignty.
A good example of this is the difference between the approach of the majority and Justice Kirby in Yarmirr HCA. The majority held that the international right of free passage and the public rights to fish and navigate meant that there could not be exclusive native title rights
163 Canada Act 1982 (UK) s 35 (Constitution Act 1982). 164 Borrows, Recovering Canada (n 57) 57. 165 For example: Dwight Newman, ‘The Section 35 Duty to Consult’ in Peter Oliver, Patrick Macklem, Nathalie Des Rosiers (eds), The Oxford Handbook of the Canadian Constitution (OUP, 2017) 349-366; Kent McNeil, ‘The Constitution Act, 1982, Sections 25 and 35’ (1988) 1 Canadian Native Law Reporter 1-13; Kent McNeil, ‘How Can Infringements of the Constitutional Rights of Aboriginal Peoples Be Justified?’ (1997) 8(2) Constitutional Forum 33-39; Richard Ogden, ‘“Existing”: Aboriginal Rights in Section 35 of the Constitution Act, 1982’ (2009) 88(1) Canadian Bar Review 51-85. 166 Borrows, Recovering Canada (n 57) 57. 167 Webber, ‘We Are Still in the Age of Encounter’ (n 57) 64. However, there have also been conversations about whether s 35 ‘recognises and affirms an inherent Aboriginal right of self-government’: Macklem, Indigenous Difference and the Constitution of Canada (n 57) 118. Macklem suggested that whether it does depends ‘on whether Aboriginal sovereignty merits constitutional protection’: at 118. Also see: John Borrows, ‘A Genealogy of Law: Inherent Sovereignty and First Nations Self-Government’ (1992) (30) Osgoode Hall Law Journal 291 and Brian Slattery, ‘First Nations and the Constitution’ (1992) 71 Canadian Bar Review 261. 168 Webber, ‘We Are Still in the Age of Encounter’ (n 57) 65. 30 recognised over sea country.169 In fact, the majority explicitly stated that these ‘two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the … [non-Indigenous] rights’.170 The majority noted that at the root of this ‘inconsistency’ was not just competing claims to control, but that the way the ‘sovereign [state] authority’ expressed its control was ‘antithetical to the continued existence’ of exclusive Indigenous rights.171 Whereas, Kirby J held that exclusive native title could exist, but would be qualified such that those other non- Indigenous rights could still be exercised.172 As will be further explored in Chapter VI,173 the majority in Yarmirr HCA made a policy choice to prioritise the settler-state’s assertions of its sovereign obligations to provide open access for fishing and navigation (in both a domestic and international sense). Justice Kirby instead acknowledged a narrow version of these third- party rights that allowed for concurrent recognition of exclusive Indigenous rights. In the Blue Mud Bay Case, the legislative scheme of the ALRA led the majority in the High Court to adopt an approach that was more akin to Kirby J in Yarmirr HCA. The approach of the majority in the Blue Mud Bay Case prioritised Indigenous control over third-party rights.174 This approach was the catalyst for the protracted Blue Mud Bay negotiations.
This section demonstrates why the Canadian scholarship on reconciling sovereignties is relevant to the Australian context. One additional advantage of this scholarship is that it is presented within the inter-societal context that the episodes are situated. However, there is an obvious danger to that; the inter-societal context includes settler-state actors and institutions (legislatures, courts) that may lack the knowledge and ability to understand (and translate) Indigenous sovereignties. This understanding is relevant not only to outcomes but to processes. Webber suggested that one way to begin overcoming this is to go beyond bringing Indigenous peoples into settler-state institutions (like witnesses in litigation), and to bring non-Indigenous people into Indigenous institutions where ‘Indigenous law is articulated, challenged …, refined, and thereby obtains its definition’.175 As will be further discussed in
169 Yarmirr HCA (n 17) 68 [100]. 170 Ibid 68 [98]. 171 Ibid 68 [100]. 172 Ibid 134 [300]. 173 See discussion at: Chapter VI, Part C. 174 See discussion at: Chapter VII, Parts C and D. 175 Webber, ‘We Are Still in the Age of Encounter’ (n 57) 96. 31
Part D of this chapter,176 revealing Indigenous assertions of sovereignty, within an inter- societal context, is challenging.
(c) Reconciling Sovereignties as Unresolved Tensions
Webber suggested a theory of reconciling sovereignties where each sovereignty derives from the ‘particular people’s own traditions’ and they do ‘not exclude the other party’s claims or insist that its claims must be subjected to one’s own’.177 In this sense, assertions of sovereignty may be unilateral. As a practical example, Webber used the Haida Gwaii Reconciliation Act, SBC 2010 where the Haida Nation and the British Columbia legislature each approved ‘autonomous traditions of decision-making’.178 This included a clause in the preamble of the legislation that stated that ‘the Haida Nation and British Columbia hold differing views with regard to sovereignty, title, ownership and jurisdiction over Haida Gwaii [and that] the Haida Nation and British Columbia will operate under their respective authorities and jurisdictions’.179 Webber was suggesting a frame where ‘multiple assertions of sovereignty … exist in a continual, unresolved – perhaps never resolved – tension’.180 This tension signifies that neither of the parties have final decision-making power that is unlimited and unaffected by the other. Yet, this is more than just co-existence without interaction, it is an active tension. This brings us back to Webber’s model of legal pluralism181 that sees normative and legal orders negotiating with one another.
Webber’s approach leaves much of the relationship undefined and he noted several potential dangers in this. First, this frame could just be said to ‘veil an underlying power’ structure.182 In answer to this, Webber suggested that the ‘asymmetrical relationship of power’ must always be kept in mind, but that considering sovereignty as a fundamental issue is a powerful challenge to the settler-state’s assertion of monopolistic authority.183 Webber also cautioned that use of this frame could lead to ‘a risk that the system might drift towards the path of least resistance: no decision at all’.184 In this context, Webber advocated looking for ways to make
176 See discussion at: Part D, Section 2 of this chapter. 177 Webber, ‘We Are Still in the Age of Encounter’ (n 57) 75. 178 Ibid 91. 179 Haida Gwaii Reconciliation Act, SBC 2010. Also see: Haida Nation and Province of British Columbia, Kunst’aa guu – Kunst’aayah Reconciliation Protocol (Agreement, 14 December 2009)
Webber presented these ideas in a contemporary and normative sense. He appears to be suggesting (loose) forms of resolution. That is not the aim of the frame developed for this thesis. This thesis seeks to analyse the ongoing dialogue between the assertions of sovereignty to identify the fundamental issues that are at stake across the episodes. This, in turn, reveals why the Blue Mud Bay negotiations continue to be unresolved. However, Webber’s ideas on resolution are useful tools to analyse the episodes. For example, as will be explored in Chapter VIII,187 one partial interim resolution (the licence deeds signed between 2012-2014 over specific areas of the intertidal zone) has been tried as part of the Blue Mud Bay negotiations. The reaction from some Aboriginal people was that this resolution has not given them enough control, or opportunity to be involved in commercial fishing, and they want something different.188 This example of a partial resolution to the Blue Mud Bay negotiations gave way to further, more detailed, negotiations between Aboriginal people and the settler-state.
In one respect, the reconciling sovereignties frame is about incoherence and allowing unilateral expressions of sovereignty. This is even though, within the settler-state context, there is a temptation to seek a legal and normative order that is ‘coherent and rationalised’.189 In applying the reconciling sovereignties frame, it is important to be aware that law and governance can function in ways in which ‘decision-making power is widely distributed’ and may not conform to state-like structures or settler-state senses of coherence.190 However, Indigenous peoples may be represented by bodies, like Aboriginal Land Councils, that have ‘[s]tate-like structures [that] have gained a measure of legitimacy’ in some Indigenous communities.191 The Blue Mud Bay negotiations also revealed that some Aboriginal
185 Ibid. 186 Ibid 98. 187 See discussion at: Chapter VIII, Part D, Section 2. 188 Northern Land Council, ‘Sea Country Working Group to advise on intertidal fishing access’, NLC Land Rights News (April 2017) 12
There is one further issue that needs to be considered in applying the frame: where do third- party interests fit? Protection of non-Indigenous third-party interests is one way in which the settler-state asserts their sovereignty. Further, third parties have been prominently involved, as independent actors separate from the settler-state, in the Blue Mud Bay negotiations. Walters noted that settler-state sovereignty, in a broad public interest sense, might be ‘synonymous with the “aspirations of all Canadians”’.193 This public interest sense of sovereignty has a focus on third-party rights. Broadly, if they are legal, third-party rights are generally acquired in good faith from the settler-state as an action of settler-state sovereignty.194 Therefore, a questioning of the primacy of settler-state authority has potential implications for the basis of third-party interests.195 Felix Hoehn argued that a sovereignties paradigm ‘views third party interests not just as wrongful takings of property, but as having originated from Crown grants rooted in unwarranted assumptions of Crown sovereignty that violated Aboriginal sovereignty and the principle of the equality of peoples’.196 McNeil further submitted that the wrong is not of the private citizen’s but of the state who allowed them to be granted.197 This thesis does not need to delve into debates about the legitimacy of third-party interests. However, analytically these ideas are useful as modes to recognise the different uses of the concept of settler-state sovereignty that may appear in the historical and contemporary episodes. Third-party fishing and navigation interests, and arguments about the public interest, are an integral part of the pre-history and aftermath of the Blue Mud Bay Case.
This section has set out the broad operative elements of the reconciling sovereignties frame. The frame involves identifying assertions of settler-state and Indigenous sovereignties and examining how they interact in a continual tension. This examination will reveal the
192 One of the ideas raised by the Northern Land Council, in the context of the Blue Mud Bay negotiations, was a new statutory body that would exercise authority over the sea country area: Avani Dias, ‘Blue Mud Bay decision: NT traditional owners extend free access to Aboriginal waters amid dispute’, ABC News (online, 1 June 2017)
D. Assertions of Sea Country and Marine Sovereignty
This thesis uses six (three Indigenous and three settler-state) assertions of sovereignty to focus the analysis within the reconciling sovereignties frame. Defining these assertions runs into some of the same potential problems identified by Falk Moore,198 such that, if we define it too broadly then it could become meaningless.199 However, the reason we seek to define the assertions of sovereignty is because the current laws, policies and governance models on Indigenous sea country rights and governance in Australia has been restricted by the rights paradigm of settler-state sovereignty within which it exists. With a definition of sovereignty that is inclusive of both Indigenous and settler-state sovereignties, the challenge is more about identifying when sovereignty is being asserted. The five episodes in this thesis have been deliberately chosen as ‘high points’ where assertions of sovereignty have been most visible. These assertions will sometimes be express, other times implied, and it is important, particularly in the inter-societal context, to carefully acknowledge nuance and variations in how the assertions appear.
There are inherent limitations to what can be achieved in one PhD project. This thesis did not undertake primary anthropological work. Instead, it relies on numerous first-person accounts of Indigenous peoples from a range of sources and anthropological work (both historical and contemporary) that has already been undertaken. Chapter III outlines the cultural and anthropological literature that underlies the assertions of Indigenous sovereignties identified in this section and acknowledges the care that needs to be taken in interpreting historical anthropological work that is most often undertaken by non-Indigenous people. Further, even within the context of the NT, there are so many Indigenous nations and corresponding sovereignties. This thesis uses specific examples, that are related to one of the five episodes, to enhance our understanding of Indigenous assertions of sovereignty in what is now the NT.
This section will first provide an overview of the current Australian law and governance models associated with Indigenous relationships to the sea. Rights are the limited, but powerful, concept of legal rights recognised within the settler-state legal system. Governance
198 See discussion at: Part B of this chapter. 199 Falk Moore (n 75) 220. 35 is a broader concept that considers other forms of influencing decision-making and authority.200 A rights paradigm has often narrowed the discussion about, and analysis of, Indigenous relationships to sea country to one that is assessed only on the basis of legal rights.201 Due to the underlying settler-state assertions of governmental authority over the sea,202 rights-based conversations in the sea country context tend to focus on the ability to engage in particular activities like fishing or hunting.203 However, the Blue Mud Bay Case is an exception in that regard and that is why, in the aftermath of the case, the settler-state is being challenged to move beyond a ‘narrow legal rights paradigm’.204 Much of the scholarship discussed in this section sits within the rights paradigm, but this does not limit its ability to be critical. There is scholarship on native title law, in particular, that critiques the way that settler-state law has narrowed Indigenous claims. Using these discussions about law and governance, and drawing on the anthropological elements referenced above, this section then turns to separately define Indigenous and settler-state assertions of sea country and marine sovereignty.
1. Overview of the Australian Inter-societal Conversation about Sea Country Law and Governance
Australia has hundreds of Traditional Owner groups with sea country and several State and Territory governments and the Commonwealth Government that operate in a vast marine space. Therefore, this section can only provide a broad overview. The law and governance models identified in this section will all be further analysed throughout the episodes in the context of the NT. The main aim of this section is to function as a literature review of the divergent, related scholarship. This section will first outline the legal rights of Indigenous peoples to sea country recognised by the settler-state in Australia and the scholarship in that area. It will then turn to the policy related to, and scholarship analysing, sea country governance models. Finally, this section will draw attention to the emerging scholarship that encourages reaching beyond the law (legal rights)/governance divide and asks deeper questions about recognising Indigenous assertions of sovereignty in sea country.
200 Parker and Braithwaite (n 18) 119. Also see: Lauren Butterly, ‘Changing Tack: Akiba and the Way Forward for Indigenous Governance of Sea Country’ (2013) 17(1) Australian Indigenous Law Review 2, 3. 201 Hamilton (n 20) 39. 202 See discussion at: Part D, Section 3 of this chapter. 203 Hamilton (n 20) 41. 204 Ibid 42. 36
(a) Legal Rights in Sea Country
In Australia, two settler-state legal mechanisms have yielded the broadest range of rights to marine areas for Indigenous peoples: ‘land’ rights legislation in the NT and native title.205 The Aboriginal land rights legislation in the NT, the ALRA, and the reciprocal AL Act, provide sea country rights through two forms: sea closures206 and the exclusive rights held by Aboriginal people over the intertidal zone that is within an ALRA grant (the latter was determined in the Blue Mud Bay Case). Given that sea closures appear to be the first settler- state recognition of Indigenous rights to sea country, there was some early academic analysis primarily from anthropologists on this mechanism.207 Much of this commentary was on the inadequacy of sea closures from both substantive (limited efficacy due to non-exclusivity) and procedural (expensive, adversarial application process) points of view. This commentary, and associated primary sources (including Hansard from the parliamentary debates about sea closures and the transcript of the first sea closure hearing), provide insights into both Indigenous and settler-state assertions of sovereignty that inform the analysis in Chapter V.
In the immediate wake of the Blue Mud Bay Case, there was some useful commentary in the form of a casenote by Sean Brennan.208 Since then, there has not been significant commentary on the implications of the case.209 As a result, the analysis in Chapter VII relies on broader commentary about public rights to fish and navigate.210 Some of that commentary emanated from a native title law perspective. Most of the limited post-Blue Mud Bay Case commentary has not been focused on the case specifically and, therefore, has not had capacity to explore the practical reality of the decision.211 This thesis has had the benefit of engaging
205 Butterly, ‘Changing Tack’ (n 200) 7. 206 AL Act (n 31) s 12. 207 Bergin (n 33); Stephen Davis, ‘Aboriginal Sea Rights in Northern Australia’ (1985) 15 Maritime Studies 12; Ian Keen, ‘Aboriginal Tenure and Use of the Foreshore and Seas: An Anthropological Evaluation of the Northern Territory Legislature providing for the Closure of the Seas Adjacent to Aboriginal Land (1984) 5(3) Anthropological Forum 419. 208 Sean Brennan, ‘Wet or Dry, it’s Aboriginal land: The Blue Mud Bay Decision on the Intertidal Zone’ (2008) 7(7) Indigenous Law Bulletin 6. 209 There was commentary prior to the Blue Mud Bay Case being finally determined: Warwick Gullett, ‘Up the Creek and Out at Sea: The Resurfacing of the Public Right to Fish’ (2006) 146 Maritime Studies 1 and Warwick Gullett, Fisheries Law in Australia (LexisNexis Butterworths, 2008) 91-94. For a broader political context, that was published later, see: Jon Altman, ‘Understanding the Blue Mud Bay Decision’ (2013) 14 Journal of Indigenous Policy 49 [published in the 2013 edition but written in August 2008]. 210 For example, Tim Bonyhady, The Law of the Countryside: The Rights of the Public (Professional Books Ltd, 1987); Bernard Walrut, ‘The Public Rights to Use the Sea and Rivers’ (2003) 20 Environment and Planning Law Journal 423; George Kailis, ‘Unintended Consequences: Rights to Fish and the Ownership of Wild Fish’ (2013) 11 Macquarie Law Journal 99. 211 For example: Godden (n 50) 139. 37 in empirical research to understand the contemporary negotiations. Chapter VIII uses primary sources including interviews, Hansard, media releases and newspaper articles to explain and analyse the Blue Mud Bay negotiations. It draws out the assertions of sovereignty by positioning the Blue Mud Bay negotiations within the broader literature on negotiated agreements between Indigenous peoples and settler-states.
Pursuant to the NTA, native title can be claimed over both land and waters.212 At trial,213 Yarmirr HCA was the first successful native title claim to the sea in Australia. As noted above,214 Yarmirr HCA determined that native title to the sea was limited to non-exclusive rights. Since Yarmirr HCA, there have been ‘four key litigated’ sea country native title cases.215 There have also been several consent determinations of native title that include large areas of sea country.216 Following the precedent in Yarmirr HCA, all of these determinations, whether they be litigated, by consent or through Indigenous Land Use Agreements,217 are of non-exclusive native title.
212 NTA (n 37) s 223(1). Also see discussion at: Butterly (n 200) 9. 213 Yarmirr FC (n 36). 214 See discussion at: Part C, Section 4(b) of this chapter. 215 Butterly, ‘Changing Tack’ (n 200) 9 (also see 9-11 for an in-depth discussion of the Torres Strait Sea Claim: Akiba v Queensland [No 3] (2010) 204 FCR 1 (‘Akiba FC’) and Akiba v Commonwealth (2013) 250 CLR 209 (‘Akiba HCA’)). The four litigated decisions are: Lardil Peoples v Queensland [2004] FCA 298; Gumana FC (n 72); Sampi v Western Australia [2010] FCAFC 26; and Akiba HCA. 216 Most of these consent determinations are in northern WA (both the Pilbara and Kimberley regions), but there are also several in Queensland and one in northern New South Wales. In WA, see for example: Goonack v Western Australia [2011] FCA 516 (for details and a map, see: ‘Native Title Determination Details: WCD2011/001 - Uunguu Part A’, National Native Title Tribunal (Web Page)
There is significant academic commentary about native title rights to the sea in the Australian context.218 Some of the commentary was produced prior to the decision of Yarmirr HCA and focused on whether native title could be claimed to the sea.219 This pre-Yarmirr HCA commentary provides insights into how questions of marine sovereignty interacted with native title and will be explored in Chapter VI.220 Since Yarmirr HCA, the scholarship of Lisa Strelein and Ulla Secher has produced strong critiques of the court’s determination that native title rights to the sea could not be exclusive.221 Within the native title frame, these commentators explicitly address the impact of settler-state sovereignty on sea country native title rights.222
Beyond ‘land’ rights and native title, there are two other areas of law that intersect with Indigenous relationships to sea country: cultural heritage and fisheries. The Northern Territory Aboriginal Sacred Sites Act 1989 (NT) protects both terrestrial and marine sacred sites.223 In many respects, the protection of sacred sites has been both separated from, and inherent in, conversations about sea country law and governance. The legislation is separate and in the NT, for example, is enforced by a dedicated statutory body.224 However, references to sacred sites are ever-present. Each of the episodes will present some reference to sacred
Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238. At the time of writing, it does not appear that a special leave application has been made to the High Court. However, the research conducted for this thesis did not find any confirmation that the Single Noongar Settlement had been formally finalised. 218 For example: Ulla Secher, ‘The Crown’s Radical Title and Native Title: Lessons from the Sea, Part One – The Position Before Yarmirr’ (2011) 35(2) Melbourne University Law Review 523; Ulla Secher, ‘The Crown’s Radical and Native Title: Lessons from the Sea, Part Two - Yarmirr and Beyond (2011) 35(3) Melbourne University Law Review 1099; Lisa Strelein, Compromised Jurisprudence: Native Title Cases Since Mabo (Aboriginal Studies Press, 2006) (particularly Chapter Five); Samantha Hepburn, ‘Native Title Rights in the Territorial Sea and Beyond: Exclusivity and Commerce in the Akiba Decision’ (2011) 34(1) University of New South Wales Law Journal 159; Samantha Hepburn, ‘Native Title in Coastal and Marine Waters’ in Rachel Baird and Donald Rothwell (eds), Australian Coastal and Marine Law (Federation Press, 2011) 296; Sean Brennan, ‘The Significance of the Akiba Torres Strait Regional Sea Claim Case’ in Sean Brennan, Megan Davis, Brendan Edgeworth and Leon Terrill, Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? (Federation Press, 2015) 29; Lauren Butterly, ‘Clear Choices in Murky Waters: Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia’ (2013) 35 Sydney Law Review 237. 219 For example: Richard Bartlett, ‘Aboriginal Sea Rights at Common Law: Mabo and the Sea’ in Turning the Tide: Papers presented at conference on Indigenous Peoples and Sea Rights (Northern Territory University, 1993) 9; Greg McIntyre, ‘Mabo and Sea Rights: Public Rights, Property Rights or Pragmatism’ in Turning the Tide: Papers presented at conference on Indigenous Peoples and Sea Rights (Northern Territory University, 1993) 107; Gary Meyers, Malcolm O’Dell, Guy Wright and Simone Muller, A Sea Change in Land Rights Laws: The Extension of Native Title to Australia’s Offshore Areas (Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1996). 220 See discussion at: Chapter VI, Part B. 221 Secher, ‘Lessons from the Sea, Part One’ (n 218); Secher, ‘Lessons from the Sea, Part Two’ (n 218); and Strelein, Compromised Jurisprudence (n 218). 222 Their analysis informs Chapter VI, Part C, Section 3. 223 Northern Territory Aboriginal Sacred Sites Act 1989 (NT) s 3 (definition of ‘land’). 224 Aboriginal Areas Protection Authority. 39 sites including in relation to sea closure application hearings, evidence and claims in the ‘Yarmirr cases’,225 and the development of the Dhimurru Sea Country IPA. Most of the limited scholarship on protection of Indigenous marine sacred sites in the NT was produced by anthropologists between the Woodward Commission and the Yarmirr cases,226 but there are also contemporary Indigenous sources that explain sacred sites.227
Fisheries laws have played a key role in how land rights legislation and native title laws have been interpreted.228 In some cases they have allowed for subsistence Indigenous fishing to continue without being subject to the same restrictions as non-Indigenous fishing.229 However, fisheries legislation also allocated rights to non-Indigenous fishers. The episodes in this thesis continually engage with fisheries laws, particularly concerning the relationships between Indigenous rights, the broader context of public rights and the commercial fishing industry. Australia’s most prominent commentator on fisheries law, Warwick Gullett, noted that, in the Australian context, the public right to fish has ‘resurfaced with prominence’ due to its intersection with Indigenous rights.230
The scholarship on fisheries law in Australia has engaged with both Yarmirr HCA and the lower court decisions relating to the Blue Mud Bay Case, but not the Blue Mud Bay Case itself or its aftermath.231 The fisheries law scholarship has not yet addressed what impact Indigenous control of the intertidal zone has on the regime of fisheries regulation in the NT. However, Gullett submitted, prior to the Blue Mud Bay Case, that if Indigenous peoples were to be successful, it would inevitably ‘demand a legislative response’ because there would be ‘strong calls for legislation that eliminates the prospect of all recreational and commercial fishers being excluded from the vast areas of the intertidal zone’.232 Such a legislative response has not occurred. As will be examined in Chapter VIII,233 there was also a constitutional reason for caution in relation to this potential response.
225 The ‘Yarmirr cases’ is used in this thesis as a shorthand way to refer to the related Federal Court, Full Federal Court and High Court determinations: Yarmirr FC (n 36), Commonwealth v Yarmirr (1999) 101 FCR 171 (‘Yarmirr FullFC’) and Yarmirr HCA (n 17). 226 For example: Stephen Davis, ‘Aboriginal Tenure of the Sea in Arnhem Land, Northern Territory’ in John Cordell (ed), A Sea of Small Boats (Cultural Survival, 1989) 37. 227 For example: Buku-Larrngay Mulka Centre (n 24). This scholarship is detailed in Chapter III. 228 For a general discussion about fisheries laws and their intersection with Indigenous rights in the NT see: Butterly, ‘Fishing for rights’ (n 11). 229 For example: Fisheries Act 1988 (NT) s 53. 230 Gullett, ‘Up the Creek and Out at Sea’ (n 209) 5. 231 See discussion at: Chapters VI and VII. 232 Gullett, ‘Up the Creek and Out at Sea’ (n 209) 9. 233 See discussion at: Chapter VIII, Part C, Section 1(b). 40
The five episodes in this thesis are all related to land rights legislation or native title. However, many assertions of Indigenous sovereignty also occur in the inter-societal governance context beyond these legal rights.
(b) Indigenous Governance of Sea Country
Outside of settler-state law, there are a range of governance models relevant to Indigenous peoples’ relationships with sea country in Australia.234 There is corresponding commentary about these models from a wide range of disciplines including geography, anthropology, sociolegal studies and marine science.235 The most common governance models are Indigenous sea country rangers, co-management arrangements over marine areas (particularly marine parks), and the development of Sea Country IPAs – all of which will be seen over the course of the episodes. An element that becomes apparent through this analysis is that the power dynamics between the settler-state and Indigenous peoples can be highly varied depending on the set up of the governance model.
In this context, the complex relationship between environmental conservation and Indigenous laws and knowledges must be kept front of mind. The western concept of environmental conservation has historically been linked to notions of ‘separating nature from humankind’.236 Historically, ‘conservation measures’ have often involved locking out people including Indigenous peoples.237 Aside from the ‘historical impact Western environmental- consciousness has had, the reality is that the ‘environmental agenda’ and the aspirations of
234 For a broad explanation of the concept of Indigenous environmental governance see: Nursey-Bray and Jacobson (n 28) 28-30. 235 For example: Ibid, Godden (n 50); Vanessa de Koninck, Rod Kennett and Paul Josif, National Indigenous Sea Country Workshop Report (Knowledge Series, No 14, North Australian Indigenous Land and Sea Management Alliance, January 2013); Smyth, ‘Just Add Water?’ (n 49); Smyth and Isherwood, ‘Protecting Sea Country: Indigenous Peoples and Marine Protected Areas in Australia’ (n 19); Dermot Smyth et al, ‘Indigenous- Driven Co-Governance of Sea Country through Collaborative Planning and Indigenous Protected Areas’ (2016) 8(26) Indigenous Law Bulletin 15; Karen Edyvane and Stuart Blanch, ‘Marine Protected Areas and Marine Conservation in the Northern Territory’ in James Fitzsimons and Geoff Wescott (eds), Big, Bold and Blue – Lessons from Australia’s Marine Protected Areas (CSIRO, 2016) 217, 220, 229, 235-236; Melissa Nursey- Bray, ‘Social Contexts and Customary Fisheries: Marine Protected Areas and Indigenous Use, Australia’ (2011) 47 Environmental Management (2011) 671; Godden and Cowell (n 19); Sue Jackson, ‘Maritime Agreements and the Recognition of Customary Marine Tenure in the Northern Territory’ in Marcia Langton, Lisa Palmer, Maureen Tehan and Kathryn Shain (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (Melbourne University Press, 2004) 220; Toni Bauman, Chris Haynes and Gabrielle Lauder, Pathways to the Co-management of Protected Areas and Native Title in Australia (AIATSIS Research Discussion Paper 32, 2013) 20-21, 27, 65-66; Sandra Pannell, ‘Homo Nullius or “Where Have All the People Gone”? Refiguring Marine Management and Conservation Approaches’ (1996) 7(1) Australian Journal of Anthropology 21. 236 Richardson (n 22) 338. Also see: Butterly, ‘Changing Tack’ (n 200) and Langton (n 22) 20. 237 Richardson (n 22) 338. Also see: Smyth and Isherwood’s description of protected areas as historically ‘part of the broader colonial project that denied Indigenous Australians ownership of, cultural relationships with, and economic benefit from their traditional estates: (n 19) 310. 41
Indigenous peoples do not always match’.238 There is a much broader scholarship on this, relating to sustainable development and Indigenous participation in environmental decision- making, which is also linked to the UN Declaration on the Rights of Indigenous Peoples (‘UNDRIP’).239
The potential for conflict between conservation and Indigenous aspirations is raised throughout the episodes in different ways. For example, one of the issues that arose in the context of the Blue Mud Bay negotiations related to the role of Aboriginal sea country rangers. The issue was whether the NT Government should be able to direct rangers to do certain environmental governance work,240 or alternatively, whether rangers should be able to determine, according to their community’s laws and knowledges, how they will govern their sea country. As will be seen in the concluding chapter,241 under the Sea Country IPA model, Aboriginal people were able to proactively define conservation goals within their sea country.
Some of these governance mechanisms have legal underpinnings. For example, co- management regimes are often implemented through statute after the negotiations for how the arrangements will work have been finalised.242 More broadly, the model for protected areas is effectively underpinned by the Environment Protection Biodiversity Conservation Act 1999 (Cth).243 However, IPAs themselves are voluntary agreements that will generally be underpinned by rights such as Aboriginal land rights or native title.244 Terrestrial IPAs are included in Australia’s National Reserve System, but Sea Country IPAs are not part of the equivalent National Reserve System of Marine Protected Areas (‘NRSMPA’).245 A key characteristic of marine protected areas under the NRSMPA is that they ‘must have secure status which can only be revoked by a parliamentary process’.246 This is not the case for IPAs
238 Butterly, ‘Changing Tack’ (n 200). Also see: Richardson (n 22) 337. 239 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) and Butterly, ‘Changing Tack’ (n 200) 5-7: ‘As noted by Professor Megan Davis, the “cornerstone” of the UNDRIP is the right to self-determination and the UNDRIP itself is a “very clear exercise in translating the right to self-determination from international law into the domestic context”. Self-determination can be linked to rights to protect the environment for future generations and to development in accordance with Indigenous communities’ “own needs and interests”: 5 (references omitted). Also see: Erika Techera, Marine Environmental Governance: From International Law to Local Practice (Taylor and Francis, 2013) 12-62 and Butterly and Techera (n 111). 240 See discussion at: Chapter VIII, Part D, Section 2. 241 See discussion at: Chapter IX, Part C, Section 2. 242 For example: Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1996 (NT) s 19(1). 243 Godden (n 50) 131. 244 Godden and Cowell (n 19) 695. 245 Smyth, ‘Just Add Water?’ (n 49) 106. 246 Ibid. Also see: Task Force on Marine Protected Areas, Guidelines for Establishing the National Representative System of Marine Protected Areas (December 1998) 4 42 given they are voluntary agreements. The scholarship of Dermot Smyth, who has worked extensively with Indigenous communities on sea country management, has continuously advocated for incorporation of Sea Country IPAs into the NRSMPA.247 This would allow sea country IPAs to be part of the broader settler-state marine planning processes. As the final chapter makes clear,248 Indigenous sea country governance needs to be considered at a more strategic level by the settler-state.
This section demonstrates that legal rights and governance models relating to sea country in Australia operate in a relatively uncoordinated way. However, there are some elements of a ‘transformative’ relationship where law provides the base rights and then governance provides broader opportunities.249 For example, the Blue Mud Bay Case has been used as a bargaining chip to leverage negotiations about governance beyond the rights determined by the High Court. The legal rights have a certain level of security in the settler-state context, but this can be hollow. For example, one of the criticisms of sea closures was that they did not provide the Aboriginal communities with any form of funding or capacity building.250 Sea closures gave the communities some legal rights, but they did not have the practical ability to make decisions about sea country or to implement and enforce them. This suggests that while the law/governance divide can give us important information about the recognition of Indigenous rights from the settler-state perspective, it can also be a hindrance to seeing the full picture of Indigenous relationships to sea country.
(c) Sovereignty: Beyond the Law (Legal Rights)/Governance Divide?
In a 2013 article that articulated the scoping process for this thesis, the author argued that: ‘A different paradigm is needed to consider Indigenous governance of sea country. We need to ‘change tack’ and promote a discussion that straddles Indigenous rights (including native title) and governance and environmental law and governance’.251 In the conclusion to a recent
This thesis takes up that challenge to move beyond the legal rights/governance divide through an analysis of co-existing assertions of sovereignty. One of the aspects of defining Indigenous assertions of sovereignty is to see that they have always been articulated, but have not always been recognised as such in the dominant settler-state context.
2. Assertions of Indigenous Sovereignty over Sea Country
Indigenous conceptions of sea country sovereignty are not uniform and they vary across different communities. The way Indigenous conceptions of sovereignty are asserted is also different to European ideas of sovereignty.257 One feature which is particularly distinct, and common across Indigenous communities in Australia, is that Indigenous conceptions of sovereignty do not differentiate between land and sea.258 However, contemporary Indigenous assertions of sovereignty are inherently a mixture of assertions based on Indigenous laws and
252 Godden (n 50) 146. 253 Ibid. 254 Ibid 146-147. 255 Ibid 147. However, Smyth and Isherwood argue that, in a marine planning context, the non-legislated model of the Sea Country IPA might be more ‘readily acceptable’ to the public as compared to more conventional legislated marine parks that often meet strong opposition (particularly in the NT): (n 19) 321. See further discussion at: Chapter IX, Part C, Section 2. 256 Godden (n 50) 147-148. 257 Nonie Sharp, ‘Reimaging Sea Space: From Grotius to Mabo’ in Nicolas Peterson and Bruce Rigsby (eds), Customary Marine Tenure in Australia (University of Sydney, 1998) 47. Also see: Sharp, Saltwater People (n 27) and Sue Jackson, ‘The Water is Not Empty: Cross‐Cultural Issues in Conceptualising Sea Space’ (1995) 26 Australian Geographer 87. 258 At the National Indigenous Sea Country Workshop in May 2012 it was noted that: ‘The strongest and most basic desire is recognition of the Indigenous view of holistic land and sea management that includes people and culture; in other words, sea country is more than just “sea”’: de Koninck et al (n 235) 5. Also see: Smyth and Isherwood (n 19) 307. 44 inter-societal laws and norms. The latter tends to respond to the settler-state legal system that does separate land from sea.
The analysis offered in this thesis is that Indigenous assertions of sovereignty to sea country in the NT are typically articulated in three interconnected forms: spiritual authority, relationship and obligation; use rights (both subsistence and trade); and the ability to control who enters sea country and to make decisions for sea country. This section briefly outlines the three assertions and Chapter III then provides a deeper understanding of the contemporary and historical cultural and anthropological literature from which these assertions are drawn.259
The first of these assertions – spiritual authority – is the most diverse amongst the different communities and is articulated in multiple ways. Spiritual authority is articulated through written words that sometimes have been transcribed and translated into English, orally and through art and performance. As just one example, Yolngu leader Djambawa Marawili AM emphasised that every part of sea country has a name, and that in sea country ‘there are ritual ceremonies. They teach us who the country belongs to, who is spiritually linked to sea country … It is this that we live and breathe.’260 Spiritual authority is often explained by reference to obligation and responsibility. Yolngu man Dula Nurruwuthun identified certain people as ‘caretakers for this ocean. That is what the Law says’.261 As noted by anthropologist Kingsley Palmer in the context of the Anindilyakwa people (Groote Eylandt, NT), Traditional ‘[O]wners have a responsibility to ensure that no harm comes to the country and the sea as well as to individuals, even if they are strangers’, and failure to meet these obligations can result in severe censure.262 The notion of ‘strangers’ in sea country, which appears as a theme throughout the episodes, and how that relates to obligations to control who enters sea country, is examined in detail in the next chapter.263
259 Smyth and Isherwood (n 19) provided a list of ‘strategies and cultural practices’ that have been used (and in some cases continue to be used) by Indigenous peoples to manage sea country. These practices range across the three assertions of sovereignty and include conduct of ceremonies, control of entry to outsiders and restrictions on resource use or distribution: at 307-308. Also see the list of common characteristics of Indigenous peoples’ relationships to sea country in Rist et al (n 2) 140. 260 Buku-Larrngay Mulka Centre (n 24) 14-15. Also see: Howard Morphy and Frances Morphy, ‘Tasting the Waters: Discriminating Identities in the Waters of Blue Mud Bay’ (2006) 11(1/2) Journal of Material Culture 67. 261 Buku-Larrngay Mulka Centre (n 24) 9. 262 Kingsley Palmer, ‘Customary Marine Tenure at Groote Eylandt’ in Nicolas Peterson and Bruce Rigsby (eds), Customary Marine Tenure in Australia (University of Sydney, 1998) 142, 150-151. 263 See discussion at: Chapter III, Part C, Section 3. 45
Use rights, such as fishing and gathering, are inextricably linked to spiritual authority. There are spiritual relationships that govern who can exercise these rights, as well as how and when they are exercised and who gets to share in the ‘catch’.264 Yolngu woman Marrnyula Munungurr depicted in her artwork how ‘Yolngu get food from sea’, including using harpoons for turtle and dugong, spearing fish and using sand crab as bait to catch fish.265 In Yarmirr HCA, the trial judge stated that there was ‘abundant evidence that members of the Croker Island community use waters within the claimed area to catch fish, hunt for and catch turtle and dugong and collect oysters and crustaceans, both for personal consumption and for use in relation to ceremonial activities’.266 Marcus Barber’s contemporary anthropological work noted that in Yilpara, a Yolngu community near Blue Mud Bay, ‘subsistence hunting still plays a critical role in people’s lives and diets’.267
Assertions of sovereignty relating to both subsistence fishing and commercial opportunities are often made by contesting non-Indigenous use that has negatively impacted Indigenous peoples’ ability to fish. In this context, assertions tend to be rooted in the notion that non- Indigenous people should not be able to take all the fish or profit from Indigenous peoples’ sea country. As one Indigenous Traditional Owner in Maningrida (north-east NT) stated in 2017: ‘These [non-Indigenous] barra[mundi] fishermen, they’re taking tonnes and tonnes of our fish and becoming millionaires 300 metres away from us on our country.’ (emphasis added).268 The inter-societal aspect of assertions of sovereignty based on commercial opportunities became even stronger after the Blue Mud Bay Case. The outcome of that case gave Traditional Owners legal control over the intertidal zone that contained rich barramundi and mud crab fishing areas.
Across all the episodes examined in this thesis there is a consistent focus on the requirement in Indigenous laws of outsiders (both Indigenous and non-Indigenous) seeking permission to enter sea country. Even in the contemporary context of the Blue Mud Bay negotiations, the ‘permission principle’ is referenced.269 The ability to control who enters sea country appears
264 For example: Barber, ‘Where the Clouds Stand’ (n 2) 70-71, 74-76. 265 Buku-Larrngay Mulka Centre (n 24) 44. 266 Yarmirr FC (n 36) 574 [97]. 267 Barber, ‘Where the Clouds Stand’ (n 2) 82. 268 Stephanie Zillman, ‘Arnhem Land community calls for ban on commercial fishing in its waters’, ABC News (online, 22 September 2017)
These three forms of assertions of sovereignty are inter-linked and will often be occurring at the same time. The next chapter will provide a more contextualised understanding of where these assertions are drawn from. As noted in the introduction to this section, Indigenous conceptions of marine sovereignty vary across different communities. This, in itself, has challenged assertions of settler-state sovereignty that have typically viewed the coastal waters or territorial sea (terms that will be explored in the next section) as one large jurisdiction.
3. Assertions of Settler-State Sovereignty over the Marine Space
This section turns to the settler-state assertions of sovereignty. It is more detailed than the previous section on Indigenous assertions of sovereignty for two reasons: first, Chapter III provides further context specifically about assertions of Indigenous sovereignty; and second, this section needs to explain some important concepts that underpin how settler-state sovereignty appears in each of the episodes. The first sub-section describes how the term ‘settler-state’ is used in this thesis. The second sub-section then explores the three overarching settler-state assertions of sovereignty that this thesis has identified: governmental authority; obligations to provide open access; and control of economic exploitation. In exploring governmental authority, this section considers, at length, how the multi- jurisdictional Australian state functions in the marine space.
(a) What is the Settler-State?
For the purposes of this thesis, the settler-state is a ‘collection of institutions and bureaucracies whose authority is constructed or maintained’ by the parliaments of the NT and
270 For example: Ginytjirrang Mala, An Indigenous Marine Protection Strategy for Manbuyŋa ga Rulyapa or the Arafura Sea (November 1994) 6. Also see: Ian McIntosh, ‘Yolngu sea rights in Manbuynga ga Rulyapa (Arafura Sea) and the Indonesian connection’ in Julie Finlayson and Diane Smith (eds), Native Title: Emerging Issues for Research, Policy and Practice (Research Monograph No.10, Centre for Aboriginal Economic Policy Research, 1995) 9. 47 the Commonwealth.271 This includes both the executive and the legislative roles.272 As will become apparent in this section, and will be further explained in Chapter IV,273 there is a complex relationship between the concurrent exercise of sovereignty by the Commonwealth and the NT. In this sense, the settler-state must be described in a nuanced way throughout the episodes as the Commonwealth and the NT have different perspectives, motives and powers. More broadly (even within the NT or the Commonwealth), the state is ‘not a single unified presence’, but is instead ‘the locus of the conflicting claims and interests within settler society each vying to assert a particular order’.274 These conflicting claims and interests are often visible in the episodes. One prominent example of this is the parliamentary debates about sea closures examined in Chapter IV.275
Courts and judges are also part of the settler-state. There is a strong separation of powers in Australia, but courts are clearly settler-state institutions that operate within the paradigm of settler-state sovereignty. Although courts are called upon to adjudicate between the settler- state and Indigenous peoples, they function within the constitutional bounds of the settler- state and are often applying statute law designed by the legislature. However, in the context of the Blue Mud Bay Case, the court functioned as a way for Indigenous peoples to secure strong legal rights through interpretation of a statute. The court refused to read down the rights of Indigenous peoples as they appeared in the relevant legislation, regardless of the practical impact of that decision. The result in the Blue Mud Bay Case has challenged the settler-state’s monopolistic authority to govern the marine space. Further, as Frances Morphy’s work has demonstrated, in the context of the trial of the Blue Mud Bay Case (Gumana FC),276 there are ways in which assertions of Indigenous sovereignty can be brought into settler-state courtrooms.277 Indigenous assertions of sovereignty were also brought before judicial officers in the Woodward Commission and the Aboriginal Land Rights Commission sea closure hearings.278
271 Douglas Harris, Fish, Law and Colonialism: The Legal Capture of Salmon in British Columbia (University of Toronto Press, 2001) 5. 272 See, for example, the explanation in Clyde River (Hamlet) v Petroleum Geo‑Services Inc. [2017] 1 SCR 1069 [28]. 273 See discussion at: Chapter IV, Part B, Section 2. 274 Harris (n 271) 5. 275 See discussion at: Chapter IV, Part D, Section 3(a). 276 Gumana FC (n 72). 277 Morphy, ‘Performing Law’ (n 2). Morphy’s work will be further explored in Chapter VII, Part B, Section 2. 278 See discussion at: Chapter IV, Part C and Chapter V, Part C. 48
(b) Australia’s Assertion of Sovereignty over the Marine Space: International and Colonial Context
The settler-state, through the Commonwealth of Australia, asserts that it has ‘sovereignty in respect of the territorial sea and the airspace over it and its bed and subsoil’.279 This sovereignty is ‘declared and enacted’ in Commonwealth legislation but is reliant on international law.280 As Chief Justice Barwick noted in New South Wales v Commonwealth (Seas and Submerged Lands Act Case),281 ‘the very existence of a territorial sea depends on international agreement’.282 These elements of international law have a rich European philosophical and legal history. As Lauren Benton notes, in the context of European colonialism, the sea had an ‘enduring association with lawlessness’, but actually ‘Europeans held and developed understandings of oceans as variegated spaces transected by law’.283 Further, this legal structure in the sea was ‘one of layered sovereignty’.284 That sovereignty operated such that even though the sea could not be occupied or owned in European eyes in the same way as land, states could be granted jurisdiction over parts of the sea close to their territory and could have some control over who entered.
Australia’s claim to sovereignty over the sea is anchored in both international law and the law of England at the time of colonisation. The majority in Yarmirr HCA stated that ‘those powers, rights and interests [in the sea] are usually expressed in terms of “sovereignty” but, as has long been recognised, that is a notoriously difficult concept which is applied in many, very different contexts’.285 However, Strelein suggested that the majority in Yarmirr HCA ‘considered that the assertion of sovereignty was constituted by a right to legislate’.286 In that context, the first assertion of settler-state sovereignty identified in this thesis is governmental authority over the sea.
The second assertion of settler-state sovereignty relates to third-party rights. Somewhat conversely to governmental authority, the settler-state also asserts its sovereignty through its obligations to provide ‘open access’ to the sea for public rights (derived from English law)
279 Seas and Submerged Lands Act 1973 (Cth) Preamble. 280 Ibid s 6. 281 New South Wales v Commonwealth (1975) 135 CLR 337 (‘Seas and Submerged Lands Act Case’). 282 Ibid 363. 283 Benton, A Search for Sovereignty (n 98) 105. 284 Ibid 123. 285 Yarmirr HCA (n 17) [52]. 286 Strelein, Compromised Jurisprudence (n 218) 54. 49 and ‘innocent passage’ (required by international law). Although these third-party rights may be seen as a limit on the settler-state’s assertion of sovereignty, they have been used in ways that instead entrench the settler-state’s sovereignty by making the state the protector of open access rights for the benefit of all.
The third settler-state assertion of sovereignty is control over economic exploitation from the sea through a wide range of activities including commercial fishing. While the settler-state does not undertake these activities itself, they regulate, encourage and profit from them. This third assertion is effectively a sub-set of the first assertion, but it is useful to consider separately as it has particular drivers behind it.
(i) Governmental Authority over the Marine Space: Commonwealth and State/Territory
In Australia, governmental authority over the sea is asserted by both the Commonwealth and State/Territory jurisdictions. Although in the contemporary sense this shared governmental authority is stable, it has at times been contested. To understand the relationship between the Commonwealth and the NT in relation to governmental authority over the sea it is important to briefly outline the history of the current division of powers.
Pursuant to the UN Convention on the Law of the Sea (‘UNCLOS’), ‘[e]very State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles’.287 The Commonwealth asserts that this represents the ‘international personality’288 of the state when we are concerned with Australia having sovereignty over the territorial sea: the state’s external sovereignty. The Seas and Submerged Lands Act 1973 (Cth) declares that ‘the sovereignty in respect of the territorial sea … is vested in and exercisable by the Crown in right of the Commonwealth’.289
In 1975, the six State jurisdictions of Australia challenged the constitutionality of the Seas and Submerged Lands Act.290 They argued that the colonies had held sovereignty over their respective territorial seas before the Commonwealth was formed, and federation had not shifted these sovereign powers to the Commonwealth. Chief Justice Barwick and Justices
287 United Nations Convention on the Law of the Sea, signed 10 December 1982, 1833 UNTS 3; 21 ILM 1261 (entered into force 16 November 1994) (‘UNCLOS’) section 2, art 3. 288 Seas and Submerged Lands Act Case (n 281) 500-501. 289 Seas and Submerged Lands Act (n 279) s 6. 290 Seas and Submerged Lands Act Case (n 281). 50
McTiernan, Mason and Jacobs held that the boundaries of the colonies had ended at the low water mark.291 Therefore, the States had no sovereign rights in the territorial sea.292
The decision in the Seas and Submerged Lands Act Case293 did not mean that the States had no power to legislate in the sea. In 1976, a case relating to WA fisheries legislation was removed from the Supreme Court of WA to the High Court. Pearce v Florenca294 upheld the operation of WA fisheries legislation in relation to a fisherman who had been caught with undersized fish off the coast of WA. It was held that the WA legislature had the power to ‘make laws which touch and concern the peace, order and good government of Western Australia which are operative beyond the margins of the territory of Western Australia …’.295 There was no inconsistency between this legislation and the Seas and Submerged Lands Act. Although this gave the State legislatures some guidance, there was much uncertainty and, as was noted by the Commonwealth Attorney-General’s Department in a 1980 report: ‘a reordering and readjustment of powers and responsibilities - as between the Commonwealth and the States – [was] clearly required to take account of the 1975 decision’.296
The States and the Commonwealth negotiated what has become known as the Offshore Constitutional Settlement (‘OCS’). The OCS is not one document, but rather several pieces of legislation. The key provision was s 5 of the Coastal Waters (State Powers) Act 1980 (Cth). This gave the State jurisdictions legislative powers to make laws for the coastal waters (‘including laws applying in or in relation to the sea-bed and subsoil beneath …’) as if those waters were within the limits of the State jurisdiction. This was extended to the NT through separate legislation.297 Coastal waters were defined as being three nautical miles out to sea.298 At the time the legislation was enacted, three nautical miles was the entirety of the Australian territorial sea. In November 1990, Australia extended its territorial sea to 12 nautical miles as it was allowed to do under the UNCLOS.299 As a result, Australia’s territorial sea is now
291 Ibid 338. 292 Ibid. 293 Ibid. 294 Pearce v Florenca (1976) 135 CLR 507. 295 Ibid 512 (Barwick CJ). 296 Attorney-General’s Department (Commonwealth), Offshore Constitutional Settlement: A Milestone in Co- Operative Federalism (1980) 4
Within this contemporary context, the NT exercises a wide range of governmental authority over the coastal waters, including in relation to fishing, aquaculture, tourism operations, marine conservation, offshore petroleum and seabed mining,301 marine parks and protection of cultural heritage. This authority is not just in the form of legislation but also broader strategic policies and planning. As noted in Chapter I,302 the NT Government recently released its inaugural Marine Management Strategy.303 This strategy indicates that the NT will begin to use an approach called ‘marine spatial planning’ (‘MSP’).304 MSP has become internationally recognised as a way of planning sustainable use of marine spaces.305
MSP promotes integrated management and seeks to identify all the values in a marine area (environmental, social, commercial) and map them so they can be simultaneously considered for planning purposes. This approach is a reaction against the way that marine planning has historically often considered issues in isolation; such that, ‘use-environment’ (overfishing leading to loss of biodiversity) or ‘use-use’ (cultural and ceremonial uses of Indigenous peoples that might be negatively impacted by non-Indigenous recreation) conflicts might
300 There was also separate legislation that vested in each State and the NT ‘the same right and title to the property in the sea-bed beneath the coastal waters…and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the State if that sea-bed were the sea-bed beneath waters of the sea within the limits of the State’: Coastal Waters (State Title) Act 1980 (Cth) s 4. Also see: Coastal Waters (Northern Territory Title) Act 1980 (Cth) s 4. The international law context then provides other legal categories of seas that go beyond what is relevant to sea country in this thesis (Contiguous Zone, Exclusive Economic Zone, Continental Shelf and high seas). 301 In this context, it should be noted that the NT Government imposed a moratorium on seabed exploration and mining in 2012 which has now been extended to 2021: Kon Vatskalis (NT Minister for Resources), ‘Moratorium on Exploration and Seabed Mining in Northern Territory Coastal Waters’ (Media Release, 6 March 2012)
The NT has indicated that it will take a localised approach as they first want to trial MSP in one region (though, they have not indicated what size the regions will be or how many there will be).310 This new Marine Management Strategy has the potential to significantly change the way marine governance operates in the NT but, as will be explored in Chapter IX,311 this strategy seems to have been developed without sufficient initial consultation with Indigenous communities, and completely separately from the Blue Mud Bay negotiations. This suggests that the integrative and regional aims of MSP may not be fulfilled.
The Commonwealth also exercises limited governmental authority over the whole of the territorial sea (including the coastal waters) in relation to areas such as defence, national security and quarantine. Beyond the coastal waters, the Commonwealth exercises broader governmental authority including in relation to those areas identified above in the context of the NT. Given this, the Commonwealth also has a role in marine strategic planning. For example, the Commonwealth coordinates the NRSMPA.312 In fact, the Commonwealth Government declared a marine reserve that partially overlaps the Dhimurru Sea Country IPA.313 This creates a situation where a form of Indigenous led governance is then being further mediated through a settler-state governance mechanism that may have different aims.
306 Charles Ehler and Fanny Douvere, Visions for a Sea Change (Report of the First International Workshop on Marine Spatial Planning, InterGovernmental Oceanographic Commission and Man and Biosphere Programme, UNESCO, 2007) 8. 307 Ralston (n 29) 28. 308 Ibid. Also see: Nicole Schaefer and Vittorio Barale, ‘Maritime Spatial Planning: Opportunities & Challenges in the Framework of the EU Integrated Maritime Policy’ (2011) 15(2) Journal of Coastal Conservation 237, 238. 309 Wesley Flannery, Noel Healy and Marcos Luna, ‘Exclusion and Non-participation in Marine Spatial Planning’ (2018) 88 Marine Policy 32, 32. 310 NT Government, Coastal and Marine Management Strategy (n 8) 10. 311 See discussion at: Chapter IX, Part C, Section 1. 312 See discussion at: Part D, Section 1(b) of this chapter. 313 Dhimurru, Indigenous Protected Area Management Plan 2015-2022 (n 47) 36. See discussion at: (n 1579). 53
The division between the jurisdictions is not complete as there are some powers that the NT and Commonwealth agree to hand over or share for practical reasons. For example, commercial fisheries are generally managed by species: the barramundi fishery, the mud crab fishery or the prawn fishery.314 Some of these fisheries extend over the three nautical mile limit or cross State/NT jurisdictional boundaries. Therefore, by agreement, a fishery may be managed by one of the jurisdictions or jointly. Regulation of fishing is a form of governmental authority that was strongly asserted by the settler-state throughout the episodes presented in this thesis. Related to this, the settler-state also asserted its obligations to protect the public right to fish.
(ii) Obligations to Provide Public Rights and Innocent Passage
The second of the settler-state’s assertions of sovereignty relates to an obligation to provide for the exercise of public rights and the right of innocent passage. The right of innocent passage is derived from UNCLOS and continues to operate in the contemporary context.315 Whereas both the basis for, and continued applicability of, public rights to fish and navigate is contested. Yarmirr HCA provided a brief analysis of the English law relating to public rights and how that applies in Australia.316 In the context of the Blue Mud Bay Case,317 the analysis then focused on how the settler-state might be able to effectively abrogate these public rights. However, even after the High Court’s determination that those rights had been abrogated in relation to the intertidal zone, public rights were still referenced in the political sphere.318 This sentiment was present in the NT Government’s ‘guarantee’, at the outset of the Blue Mud Bay negotiations, that the settler-state would secure enduring ‘permit-free access’ to recreational fishing.319
Another aspect of the third-party rights assertions is a certain type of race politics based on arguments of formal ‘equality’; in essence, that Indigenous and non-Indigenous people should have equal rights to fish. This is part of a particular non-Indigenous NT cultural
314 For example, ‘Northern Prawn Fishery’, Australian Fisheries Management Authority (Web Page)
(iii) Economic Exploitation
Finally, the settler-state asserts sovereignty in the form of control over economic exploitation of the resources of the sea. This does not just include commercial fishing and aquaculture, but also recreational pursuits that bring ‘tourism dollars’. Of course, this intersects with private commercial interests who directly profit, but they are regulated by settler-state (both NT and Commonwealth) licensing and taxes. As an example, in the latest relevant government statistics available (2015/2016), the gross total production value of commercial fishing and aquaculture in the NT was $59,416,000.322 During the Blue Mud Bay negotiations, representatives of commercial fishing have consistently drawn attention to the potential for loss of jobs and revenue to the NT if the commercial fishing industry was negatively impacted.
The three settler-state assertions of sovereignty demonstrate the complexity of the relationship between the NT and the Commonwealth and how this relationship stratifies settler-state marine laws, governance and strategic planning. They also demonstrate the ways in which the settler-state has capacity to view the sea in a more regional sense, rather than as one large jurisdiction, such as the NT Government’s consideration of MSP. With these assertions of sovereignty as the backdrop, the settler-state seeks to present itself as the legally empowered ‘coordinator’ of all law and governance in the marine area. This includes viewing any other bodies or persons, including Indigenous peoples, as stakeholders. Such an attitude has been challenged by the Blue Mud Bay Case because Indigenous peoples have become a significant owner of terrestrial property under part of the coastal waters.
E. Conclusion
This chapter sets out a frame that provides a way to analyse Indigenous and settler-state assertions of sea country and marine sovereignty across the five historical and contemporary
320 Robyn Smith, ‘Arcadian Populism: The Country Liberal Party and Self-Government in the Northern Territory’ (PhD Thesis, Charles Darwin University, 2011) 201 and David Carment, Territorianism: Politics and Identity in Australia’s Northern Territory 1987-2001 (Australian Scholarly Publishing, 2007) 8. 321 See discussion at: Chapter IV, Part D, Section 3(b). 322 Australian Bureau of Agricultural and Resource Economics and Sciences (Department of Agriculture and Water Resources, Commonwealth) Australian Fisheries and Aquaculture Statistics 2016 (December 2017) 106
Defining the broad assertions of sovereignty demonstrates why a frame based in sovereignties is useful here. One of the limitations of previous conversations about Indigenous relationships to sea country has been the narrow legal rights paradigm and the division between legal rights and governance. Legal rights and governance models relating to sea country in Australia have operated in a relatively uncoordinated way and, even in most of the related scholarship, as separate conversations. Whereas, analysing assertions of sovereignty enables us to see a narrative across the episodes.
The six assertions of sovereignty seem a little stark at this point as they are, for the most part, taken out of the context of the episodes. In terms of the settler-state assertions of sovereignty, the main aims of this chapter were: to explain how the term settler-state is used in this thesis; to provide the international and colonial context of Australia’s assertion of marine sovereignty; and to give an introductory explanation of the relationship between the Commonwealth and NT’s authority in the marine space. With respect to the Indigenous assertions of sovereignty, the next chapter seeks to provide a more indepth examination of the cultural and anthropological literature from which the assertions are drawn.
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III. INDIGENOUS ASSERTIONS OF SOVEREIGNTY: CULTURAL, HISTORICAL AND ANTHROPOLOGICAL LITERATURE
A. Introduction
This chapter outlines the cultural and anthropological literature that underlies the assertions of Indigenous sovereignties identified in Chapter II. There are three types of relevant literature: anthropological work of the ‘customary marine tenure’ era; contemporary anthropological work (which, in the context of the NT is, predominantly around Blue Mud Bay); and Indigenous explanations to non-Indigenous audiences. Each of these types of literature has specific features that impact the way the sources should be interpreted.
The chapter proceeds in two parts. Part B gives an overview of the literature and the different ways in which it was produced. This overview provides a sense of the timeframes, limitations and translations involved in producing the literature. It also examines how the literature has been used for different purposes - for example, as evidence in native title claims or for educating non-Indigenous people - and how this necessitates the literature being viewed collectively to explain the assertions of sovereignty. Part C then analyses the literature as it relates to each of the three assertions of Indigenous sovereignty. The literature on spiritual authority sets the base for the notion of ownership of sea country. Ownership has a more expansive meaning in the Indigenous context than in the non-Indigenous property law sense. The act of ownership includes certain rights and responsibilities of physical management. These include use rights, such as fishing and hunting, and the ability to control who enters sea country. An important part of this latter assertion is explaining the requirements for ‘strangers’ to seek permission to enter sea country.
All the sources described in this chapter are mediated through some form of non-Indigenous lens. This is a reality of the reconciling sovereignties process; even though assertions may be unilateral, the active tension is one that plays out by interactions between Indigenous peoples and the settler-state. In this context, this chapter is not about gaining a comprehensive understanding of the many Indigenous sovereignties in an anthropological or cultural sense. Rather, it is about using the literature that has already been produced to demonstrate the consistency of Indigenous assertions of sovereignty across the episodes.
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B. Overview of Literature: Timeframes, Limitations and Translations323
The cultural, historical and anthropological literature examined for this thesis was produced at particular times, by particular authors and for particular audiences. These elements have impacted the way the literature has evolved. This part starts with the earliest anthropological work produced by non-Indigenous anthropologists. The anthropological literature of the 1970s-1990s became known as the ‘customary marine tenure’ era.324 This work has had quite an impact on the episodes in this thesis because it was the work used as evidence in relation to sea closure applications and native title claims. This part then moves into the more contemporary anthropological work that was undertaken, again by non-Indigenous academics, around Blue Mud Bay. Finally, this part turns to the direct expressions of Indigenous peoples through evidence within settler-state courts and other institutions (like Royal Commissions), written explanations (often translated into English or appearing as a mixture of languages) and, in the particular context of Arnhem Land, bark paintings.
1. The Customary Marine Tenure Era
Prior to the 1960s, there was ‘virtually no’ fieldwork or research explicitly about Indigenous and small community relationships to the sea anywhere in the world.325 It was later suggested by anthropologists, in the 1990s, that the main reason for this was ‘the widespread European understanding that the seas are open to all’.326 Arguably, the ‘privileging of the dominant European constructions of sea space’ delayed anthropological recognition of Indigenous sea tenures.327 The term ‘customary marine tenure’ (or sometimes ‘customary sea tenure’) has been used by anthropologists, ethnographers and geographers as a disciplinary term since the 1970s.
323 Some aspects of this chapter (particularly those relating to Aboriginal fishing) were briefly discussed in: Butterly, ‘Fishing for Rights’ (n 11) 54. 324 John Cordell, ‘Introduction: Sea Tenure’ in John Cordell (ed), A Sea of Small Boats (Cultural Survival, 1989) 15 and Nicolas Peterson and Bruce Rigsby, ‘Introduction’ in Nicolas Peterson and Bruce Rigsby (eds), Customary Marine Tenure in Australia (University of Sydney, 1998) 1, 1. 325 Cordell, ‘Introduction: Sea Tenure’ (n 324) 15. 326 Peterson and Rigsby, ‘Introduction’ (n 324) 2. Also see: Sharp, ‘Reimaging Sea Space’ (n 257) 47; Sharp, Saltwater People (n 27) 152ff; Jackson, ‘The Water is Not Empty’ (n 257) 87-96; Kingsley Palmer, ‘Status of Documentary Information on Aboriginal and Islander Fishing and Marine Hunting in Northern Australian’ in F Gray and Leon Zann (eds), Traditional Knowledge of the Marine Environment in Northern Australia (Great Barrier Reef Marine Park Authority, Proceedings of a Workshop held in Townsville, 29-30 July 1985) 4, 4-5. 327 Sharp, ‘Reimaging Sea Space’ (n 257) 47. 58
John Cordell, a key American anthropologist in the field (who also spent time working in Australia), published one of the first books in the area in 1989.328 Cordell explained that although it was a hard concept to define, ‘sea tenure refers to any system of informal, relatively closed, communal, shared, joint, collective or even private property in fishing’.329 In a subsequent publication, Cordell defined customary marine tenure as a ‘distinct realm of property relations carrying specific kinds of social and environmental responsibilities that do not easily translate into European property laws and institutions, or conventions for regulating fisheries’.330 Cordell appears to have had a particular focus on fisheries.331 This more limited focus was not carried over into the Australian context. Instead, the Australian focus was impacted by the settler-state legal context within which it evolved.
In Australia, customary marine tenure was prominent in the anthropological literature of the 1980s and 1990s.332 Nicolas Peterson and Bruce Rigsby published the first Australian book (an edited collection) on customary marine tenure in 1998.333 In their introduction, Peterson and Rigsby noted that there was a blindspot in Australian ethnographic research into Indigenous relationships with sea country until the first significant studies were seen in the early 1980s.334 They stated that this blindspot was ‘extraordinary in retrospect’ given the amount of anthropological work done on the land tenure of coastal Aboriginal people.335
Peterson and Rigsby noted that overseas interest in customary marine tenure had resulted from ‘the failure of fisheries development schemes’ and as a response to decolonisation.336 However, they argued that in Australia much of the anthropological research was initially
328 Cordell, ‘Introduction’ (n 325). This first book was an edited collection of fieldwork based case studies, including two from Australia: Davis, ‘Aboriginal Tenure of the Sea in Arnhem Land’ (n 226) and Bernard Nietschmann, ‘Traditional Sea Territories, Resources and Rights in Torres Strait’ in John Cordell (ed), A Sea of Small Boats (Cultural Survival, 1989) 60. 329 Cordell, ‘Introduction’ (n 325) 5. 330 Cordell, Managing Sea Country (n 26) 2. 331 Cordell, ‘Introduction’ (n 325) 5-6, 19. 332 Lawyers did not take up this term; perhaps because the word ‘tenure’ had an association with property law: Sandra Pannell, ‘The Promise of Native Title and the Predicament of Customary Marine Tenure’ in Nicolas Peterson and Bruce Rigsby (eds), Customary Marine Tenure in Australia (University of Sydney, 1998) 230, 241. Instead, they have used terms such as ‘Aboriginal sea rights’, ‘native title to the sea’ or, more specifically in some cases, ‘fishing rights’: at 241. 333 Peterson and Rigsby, ‘Introduction’ (n 324). Kingsley Palmer noted that there were other, more limited, sources of information prior to this era of research such as comments of ‘early explorers and settlers’ and early ethnographers who had a focus on ‘material culture’ (such as canoes): Kingsley Palmer, ‘Status of Documentary Information’ (n 326) 5-8. 334 Peterson and Rigsby, ‘Introduction’ (n 324) 2. 335 Ibid. 336 Ibid 1-2. Also see: Kingsley Palmer, ‘Status of Documentary Information’ (n 326) 11-12. 59 undertaken in the context of the NT Aboriginal land rights debates.337 They identified that the first ‘passing reference to sea estates’ was by Justice Woodward in his First Report of the Woodward Commission in 1973.338
Shortly after this, several anthropologists started researching and publishing in the area including making relevant submissions to the Joint Standing Committee on Aboriginal Land Rights in 1977.339 In 1984, there was a special edition of Anthropological Forum that had a number of relevant articles.340 In that special edition, Ian Keen noted that a review of anthropological work from NT, WA and Queensland ‘shows overwhelmingly that the formal systems of tenure of coastal peoples embrace the foreshore, seas, reefs, rocks and sandbanks…’.341 By 1991, there had been such an expansion in the amount of anthropological research done on sea country in Australia, that Cordell stated that Australian researchers were ‘at the leading edge [internationally] of work in documenting CMT [customary marine tenure] systems’.342 However, there have been several critiques of the Australian scholarship because it was so focused on the legal context.
After the initial anthropological work was predominantly based in the NT Aboriginal land rights context, the focus then turned to native title claims in the wake of Mabo.343 Marcus Barber’s recent anthropological work (from the 2000s) noted that due to the ‘urgent necessity to examine questions related to tenure in the light of the developing [NT Aboriginal land rights and native title] legal situation’, the papers in the Peterson and Rigby collection were
337 Ibid. 338 Nicolas Peterson, ‘On the Visibility of Indigenous Australian Systems of Marine Tenure’ (2005) 67 Senri Ethnological Studies 427, 433; Commonwealth, Aboriginal Land Rights Commission, First Report (1973) 33 (‘Woodward Commission First Report’). 339 There were three submissions about sea country to the 1977 inquiry: see Kingsley Palmer, ‘Status of Documentary Information’ (n 326) 12. In his submission, Howard Morphy stated that: ‘Yolngu assert rights of ownership over the sea in the same way they claim rights of ownership over their land’: Howard Morphy, The Ownership of the Sea in North-East Arnhem Land (Submission to the Joint Standing Committee on Aboriginal Land Rights in the Northern Territory, 3 May 1977) 1100. The Joint Standing Committee on Aboriginal Land Rights in 1977 will be examined at: Chapter IV, Part D, Section 3. 340 Keen (n 207); Kingsley Palmer, ‘Ownership and Use of the Seas: The Yolngu of North-East Arnhem Land’ (1984) 5(3) Anthropological Forum 448; Moya Smith, ‘Bardi Relationships with Sea’ (1984) 5(3) Anthropological Forum 443; and I M Crawford, ‘Aborigines and the Sea: Resources and Management’ (1984) 5(3) Anthropological Forum 440. 341 Keen (n 207) 431. 342 Cordell, Managing Sea Country (n 26) 108. 343 Peterson and Rigsby, ‘Introduction’ (n 324) 2. 60
‘predominantly focused on property theory and tenure issues rather than a description of the overall relationships between Aboriginal people and the sea’.344
Peterson and Rigsby were aware of the potential limitations of being too focused on the legal discourse. They stated in the introduction to their book that the kinds of evidence required for native title placed limitations on the ‘purely ethnographic account’.345 Separately, in later academic work, Peterson revealed his frustrations with how the native title process impacted the development of research.346 Peterson noted broadly that ‘[l]egal discourse is an extreme form of an elaborated code in the pursuit of clarity’ that ‘has difficulties with the open-ended, decentred, continuously negotiable indeterminacies of Aboriginal discourse’.347 More particularly, he stated that the legal discourse had difficultly capturing the ‘social relationships and language of respect and acknowledgement’ such as letting people know where on sea country you are going; the ‘fleeting and virtually invisible day-to-day social expression of the system of sea tenure’.348 Yet, Peterson also acknowledged that the context of native title gave Indigenous relationships to the sea more visibility (to non-Indigenous people) than they had ever had.349 He reflected that ‘legal requirements have another, more positive, consequence, which is to concentrate attention on ethnographically complex issues that might otherwise go unexamined’.350 As will be seen below,351 it seems that one of these complex issues that has been carefully examined is the requirement for ‘strangers’ to seek permission to enter sea country.
There can be no doubt that the customary marine tenure era provided important anthropological literature on Indigenous relationships to the sea. As will be seen in Chapters V and VI,352 this literature has played a role in applications for sea closures and, even more so, native title claims. However, the limitations of this literature must be kept in mind and
344 Barber, ‘Where the Clouds Stand’ (n 2) 25. Barber also suggested, more broadly, a focus on customary marine tenure has the potential to lead to a neglect where ‘the researcher simply “turns around and faces out to sea”’, rather than considering sea country as part of an integrated account: at 19. 345 Peterson and Rigsby, ‘Introduction’ (n 324) 2. 346 Peterson, ‘On the Visibility of Indigenous Australian Systems of Marine Tenure’ (n 338) 440. 347 Ibid. There is also broader literature on this topic, for example: Benjamin Smith and Frances Morphy, ‘The Social Effects of Native Title: Recognition, Translation, Coexistence’ in Benjamin Smith and Frances Morphy (eds), The Social Effects of Native Title: Recognition, Translation, Coexistence (ANU E Press, 2007) 1-29 and the sources cited within. 348 Peterson, ‘On the Visibility of Indigenous Australian Systems of Marine Tenure’ (n 338) 440. 349 Ibid. 350 Peterson and Rigsby, ‘Introduction’ (n 324) 11. 351 See discussion at: Part C, Section 3 of this chapter. 352 See discussion at: Chapter V, Part C and Chapter VI, Part C, Section 2. 61 balanced with other sources. The next section considers the more recent anthropological work that specifically seeks to move beyond the limitations of the customary marine tenure era.
2. Contemporary Anthropological Work (Predominantly Around Blue Mud Bay)
The distinction between the customary marine tenure era and the more recent work is not clear-cut for two reasons: first, there are some authors that cross over between the two;353 and second, the contemporary work is not completely separated from the legal discourse of land rights and native title. However, the contemporary work has engaged in a deliberate way with the limitations of the customary marine tenure era and, as seen above, has explicitly critiqued the impact of settler-state legal discourse.354
Anthropologists Howard Morphy and Marcus Barber, and linguist Frances Morphy, have published detailed research about sea country relationships in the Blue Mud Bay region.355 Barber’s PhD research provides a comprehensive anthropological insight into Yolngu peoples’ relationships to the sea.356 Barber explicitly stated that the PhD was undertaken as part of a larger project that included research for a native title claim.357 He noted that the preeminent focus of his thesis was coastal life at Yilpara (Yolngu community near Blue Mud Bay) and that given the length of his fieldwork (18 months) the conversations were much broader than evidence for the native title claim (and that often the claim did not ‘loom large’ in discussions).358 Howard and Frances Morphy noted that they worked with the Yolngu community at Blue Mud Bay for over 30 years - well before the native title claim was relevant.359
Barber and Howard and Frances Morphy’s work provides valuable insights into spiritual relationships to sea country. In addition, Barber’s work covers both use rights and Indigenous assertions of control over who enters, and decision-making about, sea country.360 In relation
353 In particular, Howard Morphy: Morphy, The Ownership of the Sea in North-East Arnhem Land (n 339) and Morphy and Morphy, ‘Tasting the Waters’ (n 260). 354 Peterson, ‘On the Visibility of Indigenous Australian Systems of Marine Tenure’ (n 338) and Frances Morphy, ‘Performing Law’ (n 2) 31. 355 For information on the wider project see: Morphy and Morphy, ‘Tasting the Waters’ (n 260) 82-83. 356 Barber, ‘Where the Clouds Stand’ (n 2). 357 Ibid ix-x (‘Explanatory Note: The Blue Mud Bay Project’) 358 Ibid x. 359 Morphy and Morphy, ‘Tasting the Waters’ (n 260) 69. 360 Also see: Marcus Barber, ‘Coastal Conflicts and Reciprocal Relations: Encounters between Yolngu People and Commercial Fishermen in Blue Mud Bay, North-East Arnhem Land’ (2010) 21 Australian Journal of Anthropology 298. 62 to the latter, one of the areas that Barber focused on was the relationship that Yolngu people at Blue Mud Bay had to non-Indigenous fishers.361 This relationship includes rules about asking for permission to enter Yolngu peoples’ sea country. Frances Morphy’s separate work on how Yolngu rom (Yolngu law) was performed in the context of the settler-state court, as part of the Gumana FC hearing, also informs the analysis of the Blue Mud Bay Case.362
The anthropological sources discussed in this section are performing a translational role - interpreting and explaining Indigenous laws and norms to a non-Indigenous legal and anthropological audience.363 Another way in which this translation has been achieved is through Indigenous explanations to non-Indigenous audiences.
3. Indigenous Explanations to Non-Indigenous Audiences
Indigenous peoples have sought to explain their relationship to sea country to non-Indigenous audiences in several ways. Such explanations are inherent in evidence given within the settler-state court context, but there has also been a broader focus on educating non- Indigenous people about the fight for recognition of sea country rights.364 Evidence given by Indigenous peoples, at the first sea closure application hearing and in Yarmirr FC and Gumana FC, features heavily in the analysis of the concepts of ‘strangers’ and permission seen in Part C of this chapter. Therefore, this section will focus on Indigenous explanations outside the settler-state legal system.
The Saltwater: Yirrkala Bark Paintings of Sea Country book (‘Saltwater book’) is one of the most accessible published sources of direct Indigenous perspectives of relationships with sea country in Australia. The bark paintings catalogued in the book are part of an exhibition that continues to tour nationally.365 The impetus for the original art exhibition was a Yolngu Traditional Owner finding an illegal barramundi fishing camp that had desecrated a sacred
361 Ibid. 362 See discussion at: Chapter VII, Part B, Section 2. 363 Benjamin Smith and Frances Morphy (n 347) 3, 16-19. 364 Buku-Larrngay Mulka Centre (n 24) 15-18. 365 Most recently: ‘Gapu-Monuk Saltwater: Journey to Sea Country’, Australian National Maritime Museum (Web Page)
At the start of the Saltwater book, there are some overarching explanations of Indigenous relationships to sea country.370 These explanations offer rich insights into spiritual relationships to the sea. One overarching theme is that sea country includes a wide range of waters, such as deep waters, mixed salt and freshwater waters, coastal areas and beaches, as well as connected rivers and clouds.371 Dula Nurruwuthun, one of the artists, described these different parts of the sea:
First I will talk about Gapu-Dha-yindi, the place of the open sea. It is Dhäpuyngu (clan). Their sacred design has the tantalising taste of the Green Turtle… Sacred art that has been etched by the sea where the ocean named Wulamba roars. The open sea, Dhukthukpa, Yidingimirri, Barrwarlandji.372
Another theme that comes through is Yolngu rom and its relationship to sea country. Dula Nurruwuthun further stated: ‘The painting spiritually links the people known as Bundurrnydja, Luku Mandimirri… as caretakers for this ocean. That is what the Law says. Wherever the cloud stands (on the horizon). It is saying that.’373 Yolngu rom was expressed in wide ranging ways in the context of sea country. It was described as relating to caretaking, responsibility and custodianship, as well as knowledge, language, sharing and family.374 Sometimes it was also equated to ‘sea rights’, which seems to be used as a way of translating to the balanda audience.375 In that context, Djambawa Marawili stated that ‘we are living in the way of reconciliation’ and that, therefore, ‘you [non-Indigenous people] must learn about Native Title and Sea Rights’.376 Further, Marawili stated that ‘you [non-Indigenous people]
366 Buku-Larrngay Mulka Centre (n 24) 6. 367 Ibid 15 and Barber, ‘Where the Clouds Stand’ (n 2) 29, 31. 368 See discussion at: Chapter II, Part B. 369 Gumana FC (n 72) [22]. 370 These are in English, but most appear to have been voice recorded and then translated (from several Indigenous languages) into English: Buku-Larrngay Mulka Centre (n 24) 9-19. Indigenous language words are also used throughout - sometimes with translations and sometimes without. 371 Barber, ‘Where the Clouds Stand’ (n 2) 30. 372 Buku-Larrngay Mulka Centre (n 24) 9. 373 Ibid. 374 Ibid 9-12. 375 Ibid 10. 376 Ibid 15. 64 will learn’… about ‘the paintings, the floodwaters, the hunting grounds, the everlasting old dwelling places, the sovereignty, the places … Both sides, Yolngu and Balanda knowledge’ [emphasis added].377
All the sources described in the first part of this chapter are mediated through some form of non-Indigenous lens; whether that be an anthropologist’s research, a court proceeding or an explanation written for a non-Indigenous audience. This is a limitation, but an unavoidable one for the purposes of this thesis because it is focused on interactions between Indigenous peoples and the settler-state. In that context, contemporary Indigenous assertions of sovereignty are inherently based on a mixture of Indigenous laws and inter-societal laws and norms. The timeframes, limitations and translations discussed in this part need to be kept in mind going forward. However, all these sources viewed together are broader than what is often the sole focus of legal analysis in this area: evidence that has been heavily mediated through the settler-state court system. The strength in bringing all these sources together is the bigger picture that can emerge about the three Indigenous assertions of sovereignty.
C. Analysis of Literature as it Relates to Assertions of Indigenous Sovereignty
This part specifically considers how the literature interacts to form the basis of the three assertions of Indigenous sovereignty identified in Chapter II: spiritual authority; use rights; and control over who enters and decision-making. In turn, this provides a lens to identify the ways in which the assertions appear throughout the episodes. Each of the three assertions are considered separately, but this part also seeks to bring out the connections between them.
1. Spiritual Authority and Responsibility: ‘Ownership’
This first assertion of sovereignty is the most diverse amongst the different communities and is articulated in multiple ways. Spiritual authority is often explained by reference to responsibility over areas of sea country. In terms of which areas of sea country, there are complex ancestral patterns relating to ‘ownership’.378 Ownership is the term most often used
377 Ibid. 378 For example, Morphy and Morphy, ‘Tasting the Waters’ (n 260) 71-72; Geoffrey Bagshaw, ‘Gapu Dhulway, Gapu Maramba: Conceptualisation and Ownership of Saltwater Among the Burarra and Yan-nhangu Peoples of Northeast Arnhem Land’ in Nicolas Peterson and Bruce Rigsby (eds), Customary Marine Tenure in Australia (University of Sydney Press, 1998) 163-164; Peter Cooke and Gowan Armstrong, ‘Ownership and Resource Use on Islands off the Liverpool River, Northern Territory’ in Nicolas Peterson and Bruce Rigsby (eds), Customary Marine Tenure in Australia (University of Sydney Press, 1998) 178, 179-182. 65 in the cross-cultural context, but it has a wider meaning than may be ascribed by non- Indigenous people.379 As Barber noted:
… the ownership that is being claimed is far more than a title deed to territory and a source of hunting and economic rights … it is the assertion of a way of life, a way of engaging with the world, and a way of being engaged by that world, and by the Ancestrally important places in it.380
Stephen Davis described this as ‘not so much a matter of “owning” as a matter of “being owned,” that is, not having or possessing land and sea but being an inseparable part of it’ (emphasis as in original).381 In this context, Barber’s work demonstrates complementary and interlinked ways in which ownership can be understood.382 One of these understandings is through the ‘journeys of the Ancestral beings, which traversed the country, creating people, languages, and places, as well as linking them together in complex ways’.383 Many of these journeys cross both land and sea.
Morphy and Morphy noted in their research, in the context of Yolngu people at Blue Mud Bay, that coastal estate areas tend to include adjacent land, the beach, the intertidal zone, and the immediate offshore.384 Therefore, the waters immediately offshore are generally owned by the same clan as the adjacent land, whereas waters further out are owned by one or more clans.385 How Yolngu clans come together in terms of ownership is explained through a combination of historical circumstances, geographical and ecological factors and Yolngu social organisation.386 One principle that continually operates on both Yolngu country and sea country is the separation of the moieties from one another.387 In Yolngu culture, there are two moieties - Dhuwa and Yirritja.388 The clans then sit beneath these moieties – for
379 Barber, ‘Where the Clouds Stand’ (n 2) 166. 380 Ibid 187-188. 381 Stephen Davis, ‘Aboriginal Claims to Coastal Waters in North-Eastern Arnhem Land, Northern Australia’ (1984) 17 Senri Ethnological Studies 231, 233. 382 Barber, ‘Where the Clouds Stand’ (n 2) 167. 383 Ibid. Barber identified another two ways in which ownership can be understood. First, places and clan estates that are ‘located by and through the actions of the wangarr’ [Yolngu word for Ancestral creators] - this appears to be more specific than the broader Ancestral journeys: ‘connections between places and humans’ that are beyond the ‘major Ancestral narratives’. Second, the pattern of coastal flows of ‘the way water is linked together in cycles that can shape, create and cohere the country’. 384 Morphy and Morphy, ‘Tasting the Waters’ (n 260) 78. 385 Ibid. 386 Ibid 79. 387 Ibid. Also see: Davis, ‘Aboriginal Claims to Coastal Waters in North-Eastern Arnhem Land’ (n 381) 231. 388 Anthropologist Nancy Williams provided an explanation of this concept in the broader Yolngu context: Nancy Williams, The Yolngu and their Land: A System of Land Tenure and the Fight for its Recognition (Australian Institute of Aboriginal Studies Press, 1986) 21 (also see 57-58). 66 example, in Gumana FC the Yolngu witnesses are listed as either from ‘Dhuwa clans’ or ‘Yirritja clans’.389 Moieties apply to all things in the Yolngu universe (not just people).390 Mandaka ‘Djami’ Marika, Managing Director of Dhimurru and a senior member of the Rirratjingu clan, mentioned the moieties several times in an interview conducted for this thesis, including: ‘the animals, the creatures, all are Dhuwa and Yirritja and need to be respected. We are everywhere in the ocean – you know, the whales, things like that’.391 Lanani Marika detailed in this context that waters have different cultural relationships: ‘But really the two waters are wrestling with each other. Rulyapa (Dhuwa water) and the Yirritja water. These two waters are colliding near Yirrkala. And then going right out together as one, side by side, to Dhanumbirrna…’392
There is an understanding that ‘the waters mix at the edges’, and that ‘while the essence of the moieties lies in their separation … they are nonetheless perpetually joining together’.393 Howard Morphy stated in the native title claim report for Gumana FC that ‘the deeper saltwater … combines the forces of both moieties’.394 This joint ownership further out to sea allows ‘multiple rights holders to access the sea’ and main resources, such as dugong and turtle, to be ‘hunted collectively’.395 The concept of ‘rights holders’ starts to move the analysis towards considering what the act of ownership means.396
Ownership comes with responsibilities of physical management.397 Dula Nurruwuthun described this as being ‘caretakers for this ocean’.398 These responsibilities include harvesting (such as fishing - which can also be described as a ‘use right’) and protecting country from ‘strangers’. A stranger is ‘someone who doesn’t know this place’399 and they may be Indigenous (from another community) or non-Indigenous.400 This concept of strangers will be
389 Gumana FC (n 72) 508 [186]. 390 ‘Yolngu Culture’, Dhimurru Aboriginal Corporation (Web Page)
2. Use rights
Although use rights would appear to be the most basic (and translatable into a settler-state context) of the assertions, it is also the hardest to find literature on because the legal discourse has been heavily focused on spiritual authority.401 Of course, the spiritual authority and Indigenous law aspects are inextricably linked given that these relationships govern who can exercise these use rights, as well as how and when they are exercised and who gets to share in the ‘catch’.402
Justice Woodward noted in his First Report that the Indigenous communities gave evidence that they relied on fish, turtles, shellfish, dugongs and other sea life for subsistence and traditional cultural uses.403 Davis noted that ‘[w]hen describing one’s country Aboriginal people will invariably launch into a graphic description of the abundance of food sources’.404 Several of the paintings in the Saltwater book are about ancestral hunting and fishing and include descriptions of how it was undertaken, as well as associated ceremonies and dangers.405 In a 1991 report produced for the Coastal Zone Inquiry, Dermot Smyth noted that hunting and fishing ‘provide a significant proportion of household nutrition requirements, thus forming an often invisible non-cash part of the economy …’.406 Further, Smyth noted that subsistence fishing ‘represents a public statement of affinity to and ownership of those maritime estates, while also enabling traditional owners to observe … the activities of other coastal users (tourists, commercial fishers, coastal shipping etc’).407 This gives a broader role to subsistence activities as enabling a presence on sea country to monitor who else is using sea country and how they are using it. Smyth described it as a form of ‘coastal management’.408 Barber’s recent work noted that hunted food, such as barramundi, turtle, dugong, mud crabs and oysters, were important to everyday life in the contemporary
401 For example, in Yarmirr FC (n 36), the claim was such that: ‘by their traditional laws and customs, the members of the claimant groups: …have the right to hunt, fish and gather food and material in the waters and land’: at 538-539 [7]. 402 For example: Barber, ‘Where the Clouds Stand’ (n 2) 70-71, 74-76. 403 Woodward Commission First Report (n 338) 33. 404 Davis, ‘Aboriginal Claims to Coastal Waters in North-Eastern Arnhem Land’ (n 381) 234. 405 For example: Buku-Larrngay Mulka Centre (n 24) 30, 52 (turtle), 38, 45 (dugong), 48 (whale), 50 (stingray). 406 Dermot Smyth, A Voice in All Places: Aboriginal and Torres Strait Islander Interests in Australia’s Coastal Zone (Report Commissioned by Coastal Zone Inquiry, Revised Edition, November 1993) 19. 407 Ibid 29. 408 Ibid. 68 community and continue to ‘play a critical role in people’s … diets’.409 In this context, Barber acknowledged that the nature and forms of hunting had obviously changed significantly since pre-colonial times.410
With respect to subsistence fishing, use rights were sometimes expressed by drawing attention to the protection they need from overuse by non-Indigenous people. For example, when speaking about non-Indigenous crabbers, some Indigenous ‘people speak of ensuring that they have enough crabs for their own subsistence needs’.411 In the parliamentary debates about the Aboriginal Land Bill 1978 (NT), one parliamentarian noted that the Milingimbi community had communicated with him, on several occasions, stating that they had not been able to catch fish for subsistence because non-Indigenous fishers were fishing ‘around the clock’.412 The potential for Indigenous commercial use rights has also been expressed in this way; it was argued that it was not fair that only non-Indigenous commercial fishers were able to profit from sea country.413
There is evidence of regular visits from the Macassans (fishers from the port of Macassar (now known as Ujang Pandang) in southern Sulawesi)414 from the early 1700s which generally involved exchange of goods.415 The Macassans collected trepang (sea cucumber), but the trial judge in Yarmirr FC found that the evidence fell short of establishing trade of trepang (or any other sea resources) between Indigenous peoples and the Macassans.416 In the more contemporary context, Davis noted in his work in the mid-1980s that Yolngu people fished only for subsistence.417 He stated that some commercial fishing operations had been trialled in Aboriginal communities, but only existed ‘where the impetus to sustain the activity came from non-Aboriginal persons’ (and that they all ‘ultimately failed’).418 During the episodes there are many times when subsistence and commercial fishing are separated. This
409 Barber, ‘Where the Clouds Stand’ (n 2) 64, 82. 410 Ibid 84. 411 Ibid 196. However, Barber noted that this actually represented a broader concern about ‘the health of the country and the creatures, human, animal, and Ancestral, that live there’. 412 Northern Territory, Parliamentary Debates, Legislative Assembly, 2 August 1978, 1719 (Bob Collins). 413 See discussion at: Chapter II, Part D, Section 2. 414 Yarmirr FC (n 36) 558 [52]. 415 Peterson, ‘On the Visibility of Indigenous Australian Systems of Marine Tenure’ (n 338) 430-431. Also see: Davis, ‘Aboriginal Sea Rights in Northern Australia’ (n 207) and McIntosh (n 270) 16. 416 Yarmirr FC (n 36) 588 [121]. However, see exploration in: Denise Russell, ‘Aboriginal Makassan interactions in the eighteenth and nineteenth centuries in northern Australia and contemporary sea rights claims’ (2004) 1 Australian Aboriginal Studies 3, 8-10. Russell explored anthropological evidence of trading and permission-seeking between Aboriginal people and Macassans. Russell also particularly addressed the evidence on this topic in relation to the Yarmirr cases: at 15. 417 Davis, ‘Aboriginal Claims to Coastal Waters in North-Eastern Arnhem Land’ (n 381) 245. 418 Ibid. 69 separation generally led to restrictions, from a settler-state perspective, on what Indigenous peoples could legitimately claim as their sea rights.
The use rights aspects of Indigenous assertions of sovereignty are inevitably anchored in the contemporary inter-societal context. Negotiations between Indigenous peoples and the settler- state occur alongside the continuing development of a vibrant, modern, predominantly non- Indigenous commercial fishing industry in the NT. This context has led to two particular themes in the Indigenous assertions of sovereignty: a fair share, at a minimum, of fisheries;419 and the ability to exercise control over who enters sea country including controlling commercial fishers. In this latter context, it is helpful to view use rights alongside the broader third assertion of sovereignty.
3. Control Over Who Enters and Decision-Making: Strangers and Seeking Permission
The historical and anthropological research on sea country has always had a distinct focus on how Indigenous peoples attempt to control access to waters and their associated decision- making capacities. The concept of requiring strangers to seek permission is not specific to sea country as it also applies to country in the terrestrial sense.420 However, the concept featured prominently in explanations of Indigenous laws relating to sea country. In part, this is because the idea of seeking permission is directly in contrast to the non-Indigenous assertions of open access to, and public rights over, marine areas.
Strangers are people (Indigenous or non-Indigenous) who do not know the place; ‘[W]hen a person enters a territory for the first time, he is “someone who does not know”’.421 Someone who is not familiar with country may find themselves in danger. As explained by Djambawa Marawili (and summarised by Barber): ‘if those spirits do not know people, then they may be hostile to them, and strangers are likely to get lost, injured, into trouble, or even die because of this unfamiliarity’.422 Further, ‘[i]f the intruder disturbs sacred places in the sea, for
419 In this context, Smyth noted that Indigenous peoples were concerned about the ‘lack of benefits (financial, social and vocational etc) flowing to Aboriginal and Torres Strait Islander people from projects which commercially exploit what are regarded by [I]ndigenous people as their resources’: Smyth, A Voice in All Places (n 406) 59. Smyth emphasised that benefit was going to the commercial enterprises (and perhaps, though not noted by Smyth, to the settler-state) but no direct benefit was flowing to the Indigenous peoples: at 59. Nor were ‘royalty, lease or licence payments made’ to Indigenous peoples (by non-Indigenous people) in relation to marine resources: at 64. 420 Nancy Williams (n 388) 84-85. 421 Davis, ‘Aboriginal Claims to Coastal Waters in North-Eastern Arnhem Land’ (n 381) 239. 422 Barber, ‘Where the Clouds Stand’ (n 2) 151-152. 70 example, he may … bring sickness to the principal custodians. Custodians who must ensure that such places are not disturbed may become ill or die if they fail in this responsibility.’423 This gives a sense of the consequences that may arise for Traditional Owners if strangers enter sea country without guidance. There is a responsibility to ‘ensure no harm’ comes to sea country from strangers.424 In particular, sacred sites must be protected, and any relevant prohibitions or restrictions must be observed.425
For strangers to be safe in sea country, they need to be properly introduced to it.426 Gawirrin Gumana gave evidence in Gumana FC that:
Before any person is permitted to use our country, they must be aware of where they are entitled to go and where they are not entitled to go. They must be aware of how they should behave, how they should respect the country. Strangers are not permitted to roam around our country unaccompanied. We want to know exactly what it is that a stranger has in mind before deciding whether or not to agree.427
Davis noted that ‘Aboriginal people adhere to the principle of seeking permission of senior men of the custodial clans before entering’ sea country.428 Barber’s research found that when people (either Indigenous or non-Indigenous) requested permission they were unlikely to be refused, but that when people did not ask permission they were sometimes challenged.429 As will be seen in the next paragraph, some of these challenges were ‘genuinely hostile’.430 On the other hand, Barber noted that several non-Indigenous crabbers had been rescued from dangerous situations by the Yolngu people of Blue Mud Bay.431 These rescues were then used as the basis to encourage crabbers to sign formal agreements with the community and the NLC.432 Relevantly, one of the major issues that was raised, in relation to both sea closures and native title claims, was whether non-Indigenous people were subject to
423 Davis, ‘Aboriginal Claims to Coastal Waters in North-Eastern Arnhem Land’ (n 381) 239. 424 Kingsley Palmer, ‘Customary Marine Tenure at Groote Eylandt’ (n 262) 150-151. 425 Davis, ‘Aboriginal Claims to Coastal Waters in North-Eastern Arnhem Land’ (n 381) 243. 426 See Barber, ‘Where the Clouds Stand’ (n 2) 153: ‘Waka explained how new people are introduced: “if a stranger from another community comes along that has never been to that place, well we just put our sweat on them, and then ask the country for good luck”.’ Gawirrin Gumana also described this idea of ‘sweat’: Gumana FC (n 72) Appendix 2, 551 [47]. 427 Gumana FC (n 72) Appendix 2, 551 [46]. 428 Davis, ‘Aboriginal Tenure of the Sea in Arnhem Land’ (n 226) 45. Also see: Cooke and Armstrong (n 378) 182. 429 Barber, ‘Where the Clouds Stand’ (n 2) 194. 430 Ibid. 431 Barber, ‘Coastal Conflicts and Reciprocal Relations’ (n 360) 303. 432 Ibid. 71 permission requirements in practice. This raises a direct point of interaction between Indigenous and settler-state assertions of sovereignty and will be explored first in relation to sea closures433 and then in relation to Yarmirr FC.434
In the context of Blue Mud Bay, ‘what limited early physical interaction there was between the Yolngu people … and “Europeans” or other “outsiders” would seem to have been violent and bloody’.435 In 1932, five Japanese fishermen were killed by Yolngu people just north of Blue Mud Bay.436 Two balanda fishermen were also killed in Blue Mud Bay at around the same time.437 In the more contemporary context, Barber noted a conversation in 2002 between a Traditional Owner and a crabber that did not have permission from Yolngu people to operate: ‘If you go sneaking around that country, I will kill you!’.438 Barber noted: ‘Quite simply, Blue Mud Bay people believe that they own the sea, and should be able to control who goes there’.439 Barber also observed that this Traditional Owner had made this comment ‘in calculated anger rather than offended, uncontrolled rage, and in full awareness of wider Australian law, yet he still made it, demonstrating the seriousness of his intent to protect what he believes he owns’.440 This also reveals a complex relationship between enforcement, non- Indigenous law and place. Blue Mud Bay ‘is, and to a significant extent has always been, a long way from the places where non-Indigenous law is determined, and where those tasked with enforcing it usually reside, something that all participants in these engagements sometimes take advantage of’.441 Remoteness from non-Indigenous population centres, and associated difficulties with enforcement of settler-state law, are seen throughout the episodes and are particularly explored in the context of sea closures.442
This section has focused on requiring strangers to seek permission, but the assertion of the ability to control who enters goes beyond that. For example, in Yarmirr FC, evidence was
433 See discussion at: Chapter V, Part C, Section 2. 434 See discussion at: Chapter VI, Part C, Section 2(b). 435 Gumana FC (n 72) 464 [13]. 436 Barber, ‘Where the Clouds Stand’ (n 2) 190. Also see: Tuckiar v R (1934) 52 CLR 335. 437 Barber, ‘Where the Clouds Stand’ (n 2) 190. 438 Ibid. Barber’s work explored contemporary ‘encounters’ between the residents of Blue Mud Bay (the Djalkiripuyngu) and commercial fishers (crab and barramundi fishers). As well as conflicts, there were interesting reciprocal relationships documented. One crabber was protected from other non-Indigenous crabbers by the Yolngu of Blue Mud Bay even though they did not have any legal power to do so and, in fact, may have even ‘broken non-Indigenous law’. As Barber noted: ‘His status as an outsider was altered by his permission to be there and by his developing relationships with [Yolngu] people’: Barber, ‘Coastal Conflicts and Reciprocal Relations’ (n 360) 306. 439 Barber, ‘Where the Clouds Stand’ (n 2) 190. 440 Ibid. 441 Barber, ‘Coastal Conflicts and Reciprocal Relations’ (n 360) 308. 442 See discussion at: Chapter V, Part C, Section 4. 72 given of being consulted by oil exploration companies, about whether drilling in certain places would be appropriate, and in relation to the operation of tourism enterprises.443 The evidence of one of the Traditional Owners, Mary Yarmirr, described the requirement to seek permission as giving rise to an opportunity to ‘sit down and negotiate and come to a settlement’.444 She further noted that during negotiations that had already taken place, they had identified sacred sites and asked non-Indigenous people to respect ‘our old traditional law’ by avoiding those sacred areas.445 In contrast, Smyth noted that pursuant to settler-state law (generally, across Australia), approval may be given for construction of a ‘crocodile farm, a prawn farm, an ore loading facility or a tourist resort’ (on the coast) without ‘adequate (or any) opportunity for the involvement of Indigenous peoples’ whose sea country may be affected.446
It is clear from the analysis in this part that the three Indigenous assertions of sovereignty are heavily interlinked. The assertion of spiritual authority sets up ownership, and then the act of ownership includes exercising use rights and protecting sea country by requiring strangers to seek permission to enter. The concepts explored in this part will be seen throughout the episodes and become part of the legal discourse. For example, the concept of strangers was included in the provisions about sea closures in the AL Act.447 The permission principle was also highly relevant during the Woodward Commission, the first sea closure hearing, the Yarmirr cases, Gumana FC and in the Blue Mud Bay negotiations.448
D. Conclusion
This chapter analysed the cultural, historical and anthropological literature from which the assertions of Indigenous sovereignty are drawn. The literature examined was produced at particular times, by particular authors and for particular audiences. Viewing all the literature together mediates some of the limitations associated with particular elements of the literature (such as, in the case of the customary marine tenure era potential overemphasis on settler- state legal discourse). This approach also provides an overview that cuts across timeframes
443 Yarmirr FC (n 36) 577 [102]. 444 Ibid. 445 Ibid. 446 Smyth, A Voice in All Places (n 406). 447 See discussion at: Chapter V, Part B, Section 1(a). 448 See discussion at: the Woodward Commission (Chapter IV, Part C, Section 1), the first sea closure hearing (Chapter V, Part C, Section 1), the factual findings in Yarmirr FC and legal findings in Yarmirr HCA (Chapter VI, Part C, Section 2(b)), the claim in Gumana FC (Chapter VII, Part B, Section 3) and the Blue Mud Bay negotiations (Chapter VIII, Part D, Section 1(a)). 73 and brings together different forms of translation between Indigenous and non-Indigenous people and institutions. Exploring all the literature, in this early chapter, assists us to identify the ways in which the assertions appear, in different contexts, throughout the episodes.
As noted in the previous chapter,449 one of the challenges for this thesis was to articulate assertions of Indigenous sovereignty that avoid ‘Eurocentric notions’.450 Very few of the sources mentioned in this chapter use the nomenclature of ‘sovereignty’.451 Instead, other concepts such as responsibility, obligation and authority were used, and these were expressed in a variety of ways. This analysis has deliberately expanded the conceptual understanding of sovereignty by looking at the ways in which Indigenous relationships to the sea were expressed in a range of sources.
As we move into the five episodes examined in this thesis, it is useful to note that the first episode (Chapter IV), and much of the second episode (Chapter V), took place during the very early stages of the customary marine tenure era. Therefore, the anthropological literature was either not yet present or only beginning to trickle through. However, it became apparent, through representative bodies (like the NLC), communications with members of parliament and evidence given during the Woodward Commission and the first sea closure application, that Indigenous communities had begun to voice their aspirations to control their sea country.
449 See discussion at: Chapter II, Part D. 450 McNeil, ‘Sovereignty and Indigenous Peoples in North America’ (n 102) 83. 451 One stand-out example was Djambawa Marawili: Buku-Larrngay Mulka Centre (n 24) 15. See text associated with (n 377). 74
IV. EPISODE ONE: FROM LAND RIGHTS TO SEA RIGHTS—INITIAL DEBATES ABOUT RECOGNISING INDIGENOUS RELATIONSHIPS TO SEA COUNTRY IN LEGISLATION
A. Introduction
It appears that the first time Indigenous sea country relationships were raised in a formal settler-state context was during the Woodward Commission in 1973-1974. In this context, legislation relating to sea country rights emerged at the same time as the historic (terrestrial) land rights legislation in the NT. The Woodward Commission recommended that all seas within two kilometres of Aboriginal land be ‘closed’ to non-Indigenous people automatically and without an application being required. This recommendation was not taken up in the ALRA. Instead, controversially, the ALRA provided the NT legislature with the power to enact reciprocal legislation in relation to access to sea country. The Aboriginal Land Ordinance 1978 (NT) (which became the AL Act) provided that an application could be made to close seas adjacent to Aboriginal land. These became known as ‘sea closures’.
This chapter focuses on these initial interactions between Indigenous and non-Indigenous interests in sea country. In order to do this, the chapter first outlines the relationship between Australia’s first Indigenous land rights case (Milirrpum v Nabalco Pty Ltd (‘Gove Land Rights Case’)),452 the Woodward Commission and the ALRA. Part B of this chapter is focused on the legal foundations laid by the Gove Land Rights Case. This case was about terrestrial land, but it explicitly addressed the concept of sovereignty, the recognition of Indigenous laws within the settler-state context and the relevance of the Indigenous concept of seeking permission to enter country. The chapter then moves to explore, in Part C, the recommendations of Justice Woodward in relation to sea country. Finally, the chapter turns, in Part D, to consider the drafting of, and parliamentary debates around, the first legislative provisions relating to sea country in the ALRA.453 The discussion in Parts C and D are more specifically about sea country and, as a result, the issues of sovereignty and permission appear less clear cut. Assertions of sovereignty by the settler-state in this episode were
452 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (‘Gove Land Rights Case’). 453 The next chapter then explores the resultant reciprocal NT legislation. 75 articulated more as a compromise between Indigenous and non-Indigenous interests in the marine space.
There are several points in this chapter where the question presented was whether open access to the sea (to exercise public, and to a lesser extent international, rights) should take priority, or whether closing the seas to protect Indigenous interests should have priority. However, one element that was clear was that there was a genuine sense, from Justice Woodward and, in general, both Commonwealth and NT parliamentarians, that Indigenous interests in the sea were valid and worthy of some form of settler-state legal recognition.
B. The Lead-Up to the ALRA: Gove Land Rights Case
At its commencement, the ALRA was, and still today remains, the most comprehensive land rights legislation in Australia. The legislation followed the Woodward Commission, which in turn, was prompted by the Gove Land Rights Case.454 The case related to Yolngu country on the Gove Peninsula in Arnhem Land. Yolngu communities have played a fundamental role in the development of land and sea settler-state law and governance in the NT. The Yolngu people were also the applicants in the two successful sea closure applications and in the Blue Mud Bay Case, as well as setting up the Dhimurru Sea Country IPA.
Although some of the legal findings of the Gove Land Rights Case were overturned by Mabo, the case provided the context for the initial legal developments in relation to sea country. The aim of this section is to identify the legal findings of the case that were relevant to sea country going forward. This part proceeds in two sections. The first section analyses the Gove Land Rights Case with a focus on two elements: the relationship between settler-state property law and the claimed rights; and the legal impact of the assertion of the acquisition of sovereignty by the settler-state on Indigenous communal title. The second section then provides a short, but important, explanation of the complex relationship between the NT and Commonwealth governments and, relatedly, how the Gove Land Rights Case led to the establishment of the Woodward Commission.
1. Gove Land Rights Case
In 1931, the Arnhem Land Reserve, which included the whole of the land relevant to the Gove Land Rights Case, ‘was created under a Northern Territory Ordinance as a reserve “for
454 Nancy Williams (n 388) 19. 76 the use and benefit of the aboriginal native inhabitants of the Northern Territory”’.455 Aboriginal reserves were ‘established for the protection of Aborigines’.456 There was no form of legal title vested in the Aboriginal people who lived on the reserves.457 In 1953, an ordinance purporting to vest bauxite in the Crown became law.458 The Commonwealth and Nabalco Pty Ltd (‘Nabalco’) entered into an agreement ‘whereby the Commonwealth promised to grant a special mineral lease to Nabalco’ over relevant land in the Arnhem Land Reserve to mine bauxite.459 Nabalco commenced operations in 1968.460
In the Gove Land Rights Case, the Aboriginal plaintiffs (members of the Rirratjingu and Gumatj clans of the Yolngu people) submitted that at Australian common law, their rights to land ‘under native law or custom’ were rights which persisted and must be respected by the Crown.461 Edward Woodward QC, who later became the Commissioner of the Woodward Commission, represented the Yolngu people. The proceedings were taken in the Supreme Court of the NT before Justice Blackburn. Justice Blackburn noted that counsel for the plaintiffs ‘made no attempt to conceal the novelty, in Australian courts, of these contentions’.462
Anthropologist Nancy Williams, who worked extensively with Yolngu communities, provided evidence in the Gove Land Rights Case. Williams reflected, after the case, that when Yolngu leaders went to court ‘they believed their role was to explain to the court in their terms how they owned the land’.463 Similarly to the anthropological literature on sea country, Williams did not use the term sovereignty in the chapter of her book on ‘principles of land tenure’; instead she predominantly used ‘ownership’ and ‘tenure’, and to a lesser extent ‘control’, ‘responsibility’, ‘allocation’ and ‘estate’.464 These concepts then had to be translated into Blackburn J’s consideration of ‘whether the Aboriginal plaintiffs had
455 Gove Land Rights Case (n 452) 148. 456 Woodward Commission First Report (n 338) 11. For a list of Aboriginal reserves at the time of the Woodward Commission see: at 53-54. 457 One of the major issues considered in the Woodward Commission was how title in reserves could be vested in Aboriginal people: Commonwealth, Aboriginal Land Rights Commission, Second Report (1974) 12 (‘Woodward Commission Second Report’). 458 Minerals (Acquisition) Ordinance 1953-1954 (NT) and Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968 (NT). 459 Gove Land Rights Case (n 452) 149. 460 Ibid. 461 Ibid. 462 Ibid 150. 463 Nancy Williams (n 388) 157. 464 Ibid 75-89. In a separate chapter on ‘management of land’, Williams deliberately examined whether Yolngu interests are ‘proprietary’ in the European sense of the word: at 100-104. 77 established legally recognisable proprietary interests in the land’.465 Graeme Neate summarised the problems that the applicants’ lawyers faced in this case, including ‘the difficulty of expressing many Aboriginal ideas and arrangements in English terms, particularly where concepts related to land had no parallel in European law’.466 As will be seen in relation to Yarmirr FC,467 these challenges would be compounded in the sea country context where settler-state law appeared not to recognise forms of exclusive ownership in the sea.
Despite these challenges, Blackburn J held that there was a ‘subtle and elaborate system’ of Indigenous (Yolngu) laws.468 Yet, Blackburn J went on to hold that this system of laws could not be recognised by Australian settler-state law. There are two relevant points to consider here: the relationship between property law and the claimed rights; and the notion that communal title was not part of the common law of Australia due to the Crown’s asserted acquisition of sovereignty.
(a) Relationship Between Property Law and the Claimed Rights
Justice Blackburn stated that ‘…there is so little resemblance between property, as our law … understands that term, and the claims of the plaintiffs for their clans, that I must hold that these claims are not in the nature of proprietary interests’.469 In considering the substance of the ‘proprietary interests’, Blackburn J particularly emphasised that although clan members had rights to use and enjoy the land, so did members of other clans, and that, therefore, the right to exclude was not apparent.470 A key part of this reasoning related to whether people had to ask permission to enter on land.471 Justice Blackburn concluded that although there was a ‘custom’ not to ‘be alone in the territory of another clan … without the knowledge that some responsible member of that other clan or moiety was aware of the fact’, there was no evidence that permission was needed.472 The use of the word ‘custom’ here appears deliberate. It seems to be used to suggest that it was not at the level of law and not demonstrating any form of asserted control, but rather, merely a tradition that was widely
465 Graeme Neate, Aboriginal Land Rights Law in the Northern Territory (Alternative Publishing Co-operative, 1989) 33. 466 Ibid 35. 467 See discussion at: Chapter VI, Part C, Section 2. 468 Gove Land Rights Case (n 452) 267. 469 Ibid 273. 470 Ibid 272. 471 Nancy Williams (n 388) 169. 472 Gove Land Rights Case (n 452) 181-182. 78 accepted. Similar arguments were later raised by commercial fishers in the first sea closure application hearing.473
After the Gove Land Rights Case, Williams stated that Blackburn J’s findings: ‘…unfortunately reflect the fact that evidence on Yolngu modes of seeking and granting permission [were] inadequately interpreted …’.474 Seeking permission ‘may involve forms of communication so subtle that Europeans see mere concurrence’.475 There are many parallels between Williams’ research and Peterson’s reflections in the sea country context that were examined in Chapter III.476 Peterson stated that such expressions of the tenure system were ‘fleeting and virtually invisible’ to outsiders.477
Justice Blackburn’s findings on permission had ongoing ramifications given that permission became an issue in the Woodward Commission, the first sea closure application and Yarmirr FC. However, as will be seen below and in the next chapter, both Justices Woodward in the Woodward Commission478 and Toohey in the first sea closure application,479 distanced themselves from Blackburn J’s narrow understanding of permission. In this context, it is relevant that neither Woodward J nor Toohey J, given the types of inquiries they were conducting, were bound to consider issues solely within the sphere of doctrinal property law.
Issues relating to permission were tested again in the settler-state court context of Yarmirr FC. Justice Olney appeared to adopt the broader approach of Justices Woodward and Toohey, but held that the requirement of permission only applied between Aboriginal people and not to non-Indigenous people.480 That factual determination had implications for whether a finding of exclusive native title to the sea was open to the judge. A corollary to this is that, after the Blue Mud Bay Case, some communities have taken the opportunity to reinvigorate the ‘permission principle’ in the shadow of the findings of exclusive rights to the intertidal zone.481
473 See discussion at: Chapter V, Part C, Section 2. 474 Nancy Williams (n 388) 170. 475 Ibid 103. Williams also detailed several relevant exchanges in the evidence: at 170-173. 476 See discussion at: Chapter III, Part B, Section 1. 477 Peterson, ‘On the Visibility of Indigenous Australian Systems of Marine Tenure’ (n 338) 440. 478 Woodward Commission First Report (n 338) 8. See discussion at: Part C of this chapter. 479 Commonwealth, Office of the Aboriginal Land Commissioner, Final Report: Closure of Seas: Milingimbi, Crocodile Islands and Glyde River Area (1981) 14 (‘Final Report: Milingimbi Sea Closure’). See discussion at: Chapter V, Part C. 480 Yarmirr FC (n 36) 583 [111]. See discussion at: Chapter VI, Part C, Section 2(b). 481 For example: TLC, Annual Report 2010-2011 (n 269) 13. See discussion at: Chapter VIII, Part D, Section 1(a). 79
(b) Impact of Crown Acquisition of Sovereignty on Indigenous Communal Title
Justice Blackburn held that communal title was not part of the common law of Australia due to the Crown’s acquisition of sovereignty. Therefore, his Honour concluded that ‘no doctrine of communal title has any place in any [jurisdiction where English law has been applied], except under express statutory provisions’.482 There are two points to emphasise about these findings. First, according to Blackburn J’s reasoning, it is the system of tenure, which was received as part of the common law, that gave all title to land.483 This becomes relevant when we consider the lack of similar tenures in the marine space. Second, that native title rights would have to be specifically recognised by the ‘new sovereign’ through statutory provisions.484 This led to a situation where to have any rights, Indigenous peoples had to be granted them by the coloniser. Although the ALRA would go on to do this, and provide arguably a stronger set of rights than common law native title, there was no certainty at the time that there would be the political will (or bravery) to enact such statutory provisions.
Justice Blackburn’s conclusion on this issue was eventually overturned at common law by Mabo, however, the Gove Land Rights Case decision prompted much discussion of these issues in the intervening years. Richard Bartlett stated that even at the time the Gove Land Rights Case was decided, some commentators viewed the conclusion as ‘erroneous and contrary to established common law authority’.485 Yet, the Gove Land Rights Case was not appealed. Edward Woodward reflected later, on his role as counsel, that he advised against an appeal as he had ‘no confidence’ that the High Court, as constituted at the time, would produce a better result for Aboriginal people.486 He also feared the High Court might cast
482 Gove Land Rights Case (n 452) 244-245. 483 Kent McNeil, ‘A Question of Title: Has the Common Law Been Misapplied to Dispossess the Aboriginals’ (1990) 16 Monash University Law Review 91, 94. 484 Robert Van Krieken, ‘From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship’ (2000) 23 University of New South Wales Law Journal 63, 72. 485 Richard Bartlett, ‘Aboriginal Land Claims at Common Law’ (1983) 15 University of Western Australia Law Review 293, 293. Bartlett noted that the Canadian Supreme Court case of Calder v AG British Columbia [1973] SCR 313, determined just 18 months after the Gove Land Rights Case, stated in obiter that Blackburn J was ‘wholly wrong’ on this point: at 299-300. Further, Bartlett noted that in Coe v Commonwealth (n 130), the High Court ‘unanimously recognised that the correctness of the decision in the Gove Land Rights Case was an “arguable question if properly raised”’: at 293-294. Also see: McNeil, ‘A Question of Title’ (n 483) 93 and John Hookey, ‘The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia’ (1972-73) 5 Federal Law Review 85. 486 Van Krieken (n 484) 74 quoting from: AE Woodward, Three Wigs and Five Hats (Northern Territory Library Service, 1990) 6. 80 doubt on Blackburn J’s findings on Aboriginal legal systems. This reflection demonstrated the particular significance of Blackburn J’s findings about the Yolngu legal system.
Both Mabo and the Gove Land Rights Case held that Australia was a settled colony and that English common law became the law on Crown acquisition of sovereignty. However, the cases differed on the overall impact of the assertion of the acquisition of sovereignty on communal, pre-existing Indigenous rights under traditional law. Justice Blackburn ‘indicated that beneficial title was acquired by the Crown along with radical title, and that native title had only been recognised in statutory executive action’.487 Whereas, Mabo held that the Crown acquired radical title that was ‘a sovereign political power over land, the sum of which is not tantamount to absolute ownership of land’ and common law rights (including native title rights) could be recognised.488
Both the Gove Land Rights Case and Mabo dealt with terrestrial land. There was no real question in either of those cases about the extent to which the Crown held radical title. This question would go on to be raised in the marine context in Yarmirr FC. As will be seen in Chapter VI,489 Yarmirr HCA led to new perspectives on the relationship between radical title and native title rights.
(c) Continuing Relevance of the Gove Land Rights Case
Three of the propositions raised in the Gove Land Rights Case have had continued relevance to sea country. The first was Blackburn J’s finding that there was an Indigenous legal system. The second was that permission transitioned from being an anthropological notion to a legal concept.490 Finally, Blackburn J held that English common law became applicable in the colony on the asserted acquisition of Crown sovereignty, but his Honour’s approach to the impact of that acquisition of sovereignty would be overturned in Mabo. As foreshadowed, the Gove Land Rights Case was the start of a series of events that led to the enactment of the ALRA. In this context, it is necessary to briefly describe the relationship between the NT and Commonwealth governments in the 1970s.
487 Van Krieken (n 484) 72-73. 488 Mabo (n 35) 53 (per Brennan J). 489 See discussion at: Chapter VI, Part C, Section 3(a). 490 Further, whether Traditional Owners have a ‘proprietary interest’ continues to be debated: see, for example, Bartlett, Native Title in Australia (n 217) Chapter 17. 81
2. The Relationship Between the Northern Territory Government and the Commonwealth Government
At the time the Gove Land Rights Case was decided in 1971, the NT was not self-governing. The NT was governed by the Commonwealth Government pursuant to the Northern Territory (Administration) Act 1910 (Cth).491 From 1947 onwards, there was a gradual transfer of limited powers to the newly established NT Legislative Council.492 The replacement of the Legislative Council with a fully elected Legislative Assembly in 1974 was a significant step. This established the elected body that would become the primary body to exercise legislative power in respect of the NT. Further, as a result, the NT Executive, led by the Majority Leader (after self-government this position would be the Chief Minister), started to exercise limited executive powers. The NT then obtained, still limited, self-government on 1 July 1978. The Northern Territory (Self-Government) Act 1978 (Cth) (‘NT Self-Government Act’) gave the NT Legislative Assembly ‘the power to make laws for the peace, order and good government of the Territory’.493 However, the NT Self-Government Act was ‘an ordinary law of the Commonwealth Parliament subject to change or repeal at any time by that Parliament’, and ‘[a]mendments may … be very direct and aimed specifically at overturning laws that have been passed in the Northern Territory’.494
The change in status of the executive government was just as important as the transfer of legislative functions. The new NT Executive played a crucial role in the policy settings around Indigenous, resource and environmental issues in the NT starting from 1974, but particularly from 1978 onwards. The NT Self-Government Act provided for executive power to be vested in the Administrator (equivalent to the Governor of a State),495 the newly established Executive Council and the Ministers of the Territory.496 Regulation 4 of the Northern Territory (Self-Government) Regulations 1978 (Cth) set out, in detail, the ‘[m]atters
491 Prior to 1910, the NT was an annex of the State of South Australia (SA). The 1910 legislation followed an agreement between the Commonwealth and SA where SA surrendered the NT to the Commonwealth: Northern Territory Acceptance Act 1910 (Cth) and Northern Territory Surrender Act 1907 (SA). 492 Northern Territory (Administration) Act 1947 (Cth) ss 4, 4U. 493 Northern Territory (Self-Government) Act 1978 (Cth) s 6 (‘NT Self-Government Act’). 494 Statehood Steering Committee, Parliament of the Northern Territory, Information Paper: What Might the Terms and Conditions of Northern Territory Statehood be? (2010) 7
In early 1972, the then Prime Minister William McMahon stated that the Commonwealth Government was concerned with enabling Indigenous peoples ‘to have some security in their relationship with land’. 498 However, the McMahon Government did not support ‘land rights in a form recognisable by the Aboriginal activists of the time …’.499 In December 1972, the Gough Whitlam Government was elected. One of the first acts of the Whitlam Government was to appoint Justice Woodward to undertake a judicial inquiry into Aboriginal land rights – the Woodward Commission.
C. The Woodward Commission500
The Letters Patent establishing the Woodward Commission requested Justice Woodward to inquire into and report on: ‘The appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to land, and to satisfy in other ways the reasonable aspirations of the Aborigines to rights in or in relation to land …’ (emphasis added).501 Two points can be made about these instructions. First, there was no mention in the Letters Patent about the sea. However, as will be discussed in this part, Indigenous peoples brought sea issues to the Woodward Commission. Second, the ability to inquire into aspirations allowed the Woodward Commission to have a much broader focus than many of the other legal mechanisms that have considered sea country issues (especially compared to
497 With respect to the Blue Mud Bay negotiations, see discussion at: Chapter VIII, Part C, Section 1(b). 498 Quoted in: Commonwealth, Parliamentary Debates, House of Representatives, 4 June 1976, 3081 (Ian Viner, Minister for Aboriginal Affairs). Also see: Neate (n 465) 12. 499 Robinson (n 138) 4. 500 Aspects of Part C and D of this Chapter were discussed by this author in: Butterly, ‘Changing Tack’ (n 200) 7 and Butterly, ‘A Tireless Fight’ (n 365). 501 Woodward Commission First Report (n 338) iii and Woodward Commission Second Report (n 457) 1. 83 the litigated matters). This broader focus was particularly seen in relation to discussions of commercial fishing.
Justice Woodward produced two reports. The purpose of the First Report was to identify the issues and stimulate further submissions.502 The Second Report was the final report and provided detailed drafting instructions for the proposed Aboriginal land rights legislation.503 Both reports included discussion on sea issues. Most of the discussion related to the sea appeared under the heading ‘Land Usage’, and the subheading ‘Fisheries’.504 This speaks to a theme that becomes apparent in this part, of seeing the sea as ancillary to the land rather than as important in its own right.
As noted in Chapter III,505 Peterson and Rigsby suggest that the First Report was the ‘first passing reference to sea estates’ in Australia.506 However, Woodward J did not use the words ‘tenure’ or ‘estate’, rather he used the relationship to land as context: ‘It seems clear that Aboriginal clans generally regard estuaries, bays and waters immediately adjacent to the shore line as being part of their land. So also are the waters between the coastline and offshore islands belonging to the same clan.’507 Justice Woodward accepted that claims would be made to offshore islands as ‘legends link those islands with the mainland’, and the ‘effect of this is that the sea between also has significance’.508 All of these comments suggest that Woodward J’s attention was on the relationship of those waters to adjacent land, rather than seeing the relationship to the sea as something that could stand alone. Perhaps this was a way to stay within the terms of reference, while still ensuring that sea country was discussed. It was clear that Woodward J was not shying away from discussing sea country, and instead actively ensuring that it was represented.
In discussing the Woodward Commission, it is important to start by exploring the Indigenous ‘claim’ that was being made about sea country. These were early expressions of relationships to sea country by Indigenous peoples, through their representatives, in a formal settler-state context. This part then moves to consider the recommendations that Justice Woodward made in response to those claims before turning to the representations of aspirations in relation to
502 Woodward Commission First Report (n 338) 48. 503 The drafting instructions are at: Woodward Commission Second Report (n 457) Appendix D. 504 Ibid 80 and Woodward Commission First Report (n 338) 33. 505 See discussion at: Chapter III, Part B, Section 1. 506 Peterson and Rigsby, ‘Introduction’ (n 324) 2. 507 Woodward Commission First Report (n 338) 33. 508 Ibid. 84 commercial fishing. Finally, this part concludes by looking at some of the overarching themes of Woodward J’s approach to sea country and how this set the scene for the drafting of the ALRA.
1. What was the Indigenous ‘Claim’ to Sea Country?
In his First Report (the scoping exercise), Justice Woodward stated that there were no ‘clear- cut claims’ to sea country or fishing.509 The First Report contained only a short section relating to ‘fisheries’ that began by noting that a ‘number of Aboriginal communities in the North have raised … the question of fishing rights’.510 Justice Woodward identified the question raised by Indigenous communities as: ‘whether their land rights will extend out to sea and, if so, how far’.511 This emphasised that it was the Indigenous communities that brought this issue to the Commissioner. Justice Woodward noted that the communities submitted that they relied on fish, turtles, shellfish, dugongs and other sea life for subsistence and traditional uses.512 Further, some communities suggested that they were ‘looking ahead’ to developing commercial ventures.513 This demonstrated that the potential for commercial fishing ventures operated by Indigenous communities was openly discussed at least as early as 1973.
The NLC’s submissions (produced before the Second Report), noted that Aboriginal reserves appeared to extend to the low water mark, but stated that: ‘The Dreaming of some Aborigines lies beyond this limit and the Aborigines wish to be able to exclude others from an area which lies within a line drawn 12 miles from the coastline’.514 The submissions further noted that the ‘interest of Aborigines in the area within the 12 mile limit is in part religious, in part social, and in part economic’.515 The religious aspect was explained in relation to the Dreaming, while the social and economic aspects were explained briefly as relating to the social impact of non-Indigenous boat crews camping unlawfully, and the economic benefits of a potential Aboriginal fishing industry.516
509 Ibid. As the First Report was a scoping exercise, it was produced before the submissions of the NLC were received. 510 Ibid. 511 Ibid. 512 Ibid. 513 Ibid. 514 NLC, Submission to Aboriginal Land Rights Commission (n 30) 90. 515 Ibid 129. 516 Ibid. 85
The explanation here for the twelve miles was that ‘Australia’s jurisdiction with respect to fishing or movement within this area appears to be established internationally, … and there is no reason why Municipal legislation should not create a prohibition against entry into this area except with a permit’.517 The NLC claimed as far as the Commonwealth’s asserted sovereign fisheries rights reached at the time. However, it seems that the NLC was claiming more than the sovereign rights over fisheries that the Commonwealth had claimed out to twelve miles. It appeared that the NLC also claimed the ability to exclude people generally (beyond just fishers).
The NLC’s submission went on to note that ‘if the 12 mile limit should prove to be too wide a boundary for the exclusive use of Aborigines, the three mile limit might be considered’.518 Further, that because the ‘States control waters within the three mile limit’, ‘it is reasonable to seek an exclusive right for Aborigines to enjoy a like area off the coast of the Reserves’.519 The assertion that States, and the NT, controlled waters to the three mile mark would (as explained in Chapter II)520 go on to be challenged in the Seas and Submerged Lands Case, and then negotiated through the 1979 OCS. In this context, the Woodward Commission was taking place during a time of more general uncertainty as to governance arrangements of the marine area from the settler-state perspective. However, it was also a time of expansion of Commonwealth powers both in terms of distance out to sea and governance over new substantive areas like offshore petroleum.521
It appears this background did not directly impact the Woodward Commission’s recommendations due to the focus on Aboriginal rights. But, as will be seen in the next section, it did feature in the legislative debates about the ALRA given that the Commonwealth Parliament was involved in both the issues of Aboriginal rights and marine governance. The
517 Ibid 89-90. In 1968, the Commonwealth introduced into its fisheries legislation ‘declared fishing zones’ that extended to 12 nautical miles: Fisheries Act 1967 (Cth) s 3 and J.G.S (author identified by initials), ‘International Legal Notes’ (1967) 41 Australian Law Journal 31, 31. Prior to this, the Commonwealth Government had been adhering to a ‘three mile limit for all purposes, including the exercise of sovereign rights over fisheries’: at 31. Australia had then followed several countries in extending their ‘sovereign rights’ over fisheries out to 12 miles, but not for other purposes: at 31. At the time, although there was a ‘clear indication’ that many countries desired a general 12 mile limit, it had not been agreed upon at the Geneva Conferences of 1958 and 1960 on the Law of the Sea: at 31. In 1979, the Commonwealth then ‘established a fishing zone with an outer limit of 200 [nautical miles] with effect from 1 November 1979’: Yarmirr FC (n 36) 597 [149]. As noted at Chapter II, Part D, Section 3(b)(i), it was not until 1990 that Australia formally extended its territorial sea to 12 nautical miles. 518 NLC, Submission to Aboriginal Land Rights Commission (n 30) 129. 519 Ibid. 520 See discussion at: Chapter II, Part D, Section 3(b)(i). 521 See (n 517) and Opeskin and Rothwell (n 299) 406-410, 416. 86 settler-state’s assertions of governmental authority over the marine space were in a simultaneous state of flux and expansion.
Similarly to Justice Woodward’s approach, the NLC’s submission seemed to be about the sea’s relationship to land. However, it was a broader suggestion that if, like a State or the NT, someone owns the land bordering the sea, they should have rights over that adjacent sea. It was a claim that Indigenous ownership of land should be viewed equally to settler-state ownership of land. In line with this, the claim was advanced as an exclusive right with a permit system to allow for non-Indigenous entry, and an ‘exemption in favour of putting to shore in cases of emergency’.522 This was a system of requiring permission, by way of permit application, to enter sea country.
Although the NLC’s claim was to a broader exclusive right, the main way in which the settler-state system had engaged with issues of exclusivity in sea country was around fisheries. The NLC’s submission attached a copy of a letter that outlined the Commonwealth Government’s policy ‘with respect to exclusive fishing rights’.523 This policy had been followed since the commencement of the Fisheries Act 1952 (Cth) (this was the first broad piece of fisheries legislation enacted by the Commonwealth).524 The letter stated that ‘[a]s a matter of principle, exclusive fishing rights [were] not awarded …’ unless there was a reason for fisheries management.525 It was not clearly articulated, but it seemed that the reason for fisheries management related to stock conservation. There was no mention of other reasons for management and no mention of Indigenous peoples.
The letter further noted that there was insufficient information to determine if fisheries management was needed in the NT, other than for the established fisheries of prawn and giant perch, but that an inquiry was being conducted at the time.526 This was an admission of the settler-state’s knowledge limitations in relation to sea country. The NLC’s submissions did not directly address the open access policy. This policy was an assertion by the settler-state that ‘as a matter of principle’ fisheries should be open access. However, it was also measured
522 NLC, Submission to Aboriginal Land Rights Commission (n 30) 129. 523 Ibid, Schedule K. This attachment was a letter from the Department of Primary Industry that was headed ‘Government policy of open access to fisheries…’: Schedule K. The open access policy meant that ‘a licence issued under the Act is valid for all waters…’: Schedule K. 524 Ibid. Also see: Yarmirr FC (n 36) 597 [148]. 525 NLC, Submission to Aboriginal Land Rights Commission (n 30) Schedule K. 526 Ibid. 87 by a sense that there might be a greater good, from the settler-state perspective (such as fish stock management), that could change this approach.
Beyond the Commonwealth policy, there was fisheries legislation that applied to the NT from 1872 onwards.527 The legislation at the time of the Woodward Commission provided for annual licences to take fish for commercial purposes and prohibited an unlicensed person from taking fish for sale.528 It also allowed for the NT Administrator529 to close areas to fishing (in general or for specific types of fish, types of gear (nets, traps etc) or for particular time periods) and for the leasing of areas of the bed of waters for oyster cultivation.530 Earlier fisheries legislation had expressly not applied to Aboriginal people taking fish for their own use, but from 1911-1979, ‘no special provision regarding traditional Aboriginal fishing was made’ in the NT legislation.531 It appears that there was no reference to NT fisheries legislation in the context of Aboriginal people in either of the Woodward Commission reports. This seems strange given that there were mechanisms in the fisheries legislation that might have offered pre-existing legislative options that could have been modified to, at least, provide for restricted fishing. This lack of consideration of fisheries legislation in the context of Aboriginal rights continued in the parliamentary debates about the ALRA and appears to be part of a larger separation of Indigenous rights from broader marine governance issues including fisheries.
In terms of fish stocks, the NT Department of Fisheries made a submission to the Woodward Commission that Aboriginal people had ‘increased their potential fishing capacity to the point where they could damage stocks’.532 The Department advised that ‘controls must be exerted by an authority recognised by the Aborigines, which need not necessarily be the government’.533 No further information was provided about what sort of authority that could be; nor was there any sense that Aboriginal people might have different views on approaches to conserving fish stocks.534 This idea was not considered any further, but it hinted at some
527 Prior to 1911, that legislation had been South Australian legislation: see (n 491). The relevant legislation from 1872 to 1978 is set out in detail in Yarmirr FC (n 36) 594-595 [139]-[144]. 528 See: Fisheries Ordinance 1965 (NT), cls 15-16. Also see: Fisheries Ordinance 1972 (NT) (An Ordinance to amend the Fisheries Ordinance 1965-1967). 529 The role of the NT Administrator is outlined at (n 495) and the accompanying text. 530 Fisheries Ordinance 1965 (NT), cls 13, 23. 531 Yarmirr FC (n 36) 595 [141]. 532 Woodward Commission Second Report (n 457) 81. Barramundi and threadfin were singled out as particularly vulnerable. 533 Ibid. 534 Ibid. Justice Woodward noted in this regard that the NLC had not made any request for ‘special exemption for Aborigines from laws designed to protect stocks of fish’. 88 form of joint authority over fisheries governance at least as it applied to Aboriginal people. In this sense, the settler-state recognised that there were other non-settler-state bodies of authority that were relevant to Aboriginal people in the sea country context. As will be seen in Chapters VIII535 and IX,536 these discussions about joint forms of marine governance authority would resurface, led by Aboriginal people, in the context of the Blue Mud Bay negotiations and the formation of the Dhimurru Sea Country IPA.
Looking at the NLC’s submissions overall, there were under ten paragraphs on sea country over the 175 pages of submissions. This is not a criticism of the NLC, as their submissions must be viewed in the wider context of the enormity, complexity and novelty of the issues they were dealing with during the Woodward Commission. However, this small amount of information was coupled with a large claim to exclusive rights over an area of sea out to the 12 mile limit. This combination provided a particular challenge for Justice Woodward in making his recommendations.
2. Justice Woodward’s Recommendations on Sea Country: Buffer Zone
Justice Woodward’s major recommendation about sea country was that land rights should be ‘extended’ out to sea to provide a buffer to protect Aboriginal land. As noted above, the idea of a buffer to protect Aboriginal land was not novel in the NT. Although there was some doubt as to the correct legal position (as expressed by Woodward J), estuaries and tidal flats adjacent to Aboriginal reserves had generally been regarded as part of the reserve and were ‘therefore out-of-bounds to commercial fishermen’.537 The major decision then for Justice Woodward was how far such a buffer would stretch.
(a) Buffer Zone out to 12 miles
In considering the NLC’s 12 miles submission, Justice Woodward noted that an extension of such a distance would be relevant to both fishing and offshore petroleum and minerals.538 Justice Woodward noted in his Second Report that mineral rights questions, broadly, were the issues that caused him ‘the most difficulty and concern’.539 The NLC’s submissions sought
535 See discussion at: Chapter VIII, Part D, Section 3(c). 536 See discussion at: Chapter IX, Part C, Section 2. 537 Woodward Commission Second Report (n 457) 80. 538 Ibid. 539 Ibid 103. 89
Aboriginal ownership of all minerals but never referred specifically to those offshore.540 Justice Woodward noted that his recommendations could ‘reduce the chances of Aborigines securing a direct financial benefit from any offshore petroleum or minerals’.541 However, he stated that, ‘the chances of such developments occurring even within a twelve miles seaward limit of Aboriginal lands are slight’.542
It was not clear why Justice Woodward thought that chances of such developments were ‘slight’. It does not appear that there were any specific references in Hansard at the time (late 1960s, early 1970s) to offshore petroleum in the NT. Whereas, there were specific references to petroleum exploration in the Bass Strait and off northern WA,543 and also a statement that Tasmania, NSW and Queensland ‘have issued permits to companies to explore in the offshore areas for minerals other than petroleum’.544 Given the proximity of northern WA, it would seem unusual to conclude that chances were slight. However, before drawing any conclusions on this, it is also useful to consider Justice Woodward’s approach to terrestrial mining.
Justice Woodward recommended that Aboriginal people should have a right to prevent mining on their land, but he did not recommend that minerals be owned by Aboriginal people. He noted that ‘the whole of Australian mining law is based on the assumption that minerals belong to the Crown. To provide otherwise in a particular case could well create problems and sorting these problems out could delay necessary legislation’.545 Justice Woodward further noted that the Government’s ability to prevent mineral development for strategic reasons, or to protect the environment, could be ‘complicated by an unfamiliar declaration of mineral ownership’.546 The reasoning of Woodward J suggests two underlying approaches. First, that overturning an ‘assumption’ that Australian law rests on should be avoided unless necessary, as it could delay resolution of the Aboriginal land rights issue. Second, that hiving off ownership of certain resources might be detrimental as it could prevent more strategic, overarching environmental governance.
540 NLC, Submission to Aboriginal Land Rights Commission (n 30) 117. 541 Woodward Commission Second Report (n 457) 115. 542 Ibid. 543 For example: Commonwealth, Parliamentary Debates, Senate, 15 October 1973, 2051 (Ian Viner) and Commonwealth, Parliamentary Debates, Senate, 24 July 1974, 427 (Ivor Greenwood). 544 Commonwealth, Parliamentary Debates, Senate, 22 May 1973, 1779 (Hartley Cant). Also see: Commonwealth, Parliamentary Debates, Senate, 7 August 1974, 150 (Ralph Jacobi). 545 Woodward Commission Second Report (n 457) 115. 546 Ibid. 90
These underlying approaches present a clue as to why Woodward J was not keen on extending Aboriginal rights out to the 12 mile mark. Such an extension could have delayed enactment of Aboriginal land rights legislation as it would have challenged an ‘assumption’ of settler-state law that exclusive rights to the sea would not be recognised. However, this assumption was not as clearly stated in settler-state law as that relating to the example of ownership of minerals. Further, given it would have potentially led to entry over a large area of the sea being controlled by Indigenous peoples, Justice Woodward was perhaps worried about the governance implications. These governance concerns could have potentially stretched to strategic issues that would not have been significant to terrestrial areas, such as quarantine, customs, defence and national security, as well as, of course, environmental governance issues such as fisheries and marine pollution. In this context, particularly because Australia had not yet formally extended its territorial sea out to 12 miles, the settler-state’s governance powers were not clearly articulated. This made it difficult, if not impossible, for Justice Woodward to recommend granting Indigenous peoples rights to control entry over such a large area.
(b) Buffer Zone out to Two Kilometres
Justice Woodward ‘recommended that a buffer zone of up to two kilometres (from low tide) of the sea be ‘closed’ to protect Aboriginal land’.547 Two kilometres is approximately one nautical mile. Therefore, this did not stretch to the boundary of the three nautical mile mark of the territorial seas then controlled by the Commonwealth and later the NT. In terms of why the two kilometres, his Honour stated that an ‘arbitrary figure … had to be arrived at’, and that the ‘legitimate interests’ of Aboriginal people would be protected if:
their traditional fishing rights are preserved and their right to the privacy of their land is clearly recognised by the establishment of a buffer zone of sea which cannot legally be entered by commercial fishermen or holiday makers. An exception would have to be made in cases of emergency.548
The privacy of land reasoning entrenched the idea that there was strong Indigenous control and governance over land, and that this must be protected by the buffer zone. The sea that
547 Butterly, ‘Changing Tack’ (n 200) 7 and Butterly, ‘A Tireless Fight’ (n 227). Also see: Ibid 81 ([144] recommendation (vi)). Particular issues were raised about waters of wide estuaries and ‘closed bays’ (including Blue Mud Bay), and how the two kilometre distance would apply to those areas: at 15. 548 Woodward Commission Second Report (n 457) 80-81. 91 was included in this buffer was almost presented as a by-product of that ownership. In terms of the distance, Justice Woodward noted that all fishing by Aboriginal people was done by using nets or hand-lines in ‘comparatively shallow water’ and, therefore, the two kilometres should ‘suffice’.549 This sense of picking a distance, without any reference being made to it before, and not a number that had a particular meaning in the marine space, was curious. It suggested a discomfort and uncertainty around the legal issues, but it represented a significant compromise. This appears to be the first articulation of such a dialogue by a settler-state mechanism in relation to the marine space in Australia. It recognised Indigenous assertions of being able to control who entered sea country to the detriment of settler-state assertions of provision of open access.
In terms of who would be able to access the ‘buffer zones’, one issue raised during the Woodward Commission was whether Aboriginal landowners, with adjacent closed seas, could license non-Indigenous commercial fishers to use their sea country. His Honour stated that this had caused him ‘some doubts’, even though he acknowledged that ‘this seems to be an option which ought to be open to communities, since it could be productive of some income’.550 The suggestion that Indigenous landowners could license non-Indigenous fishers represented a higher level of Indigenous governance over that area of sea. It provided a directly comparable type of control to governmental authority, as fisheries licensing was, and still is, seen as the role of settler-state institutions. The NLC did not seek the opportunity to license commercial fishers, and Justice Woodward stated that this was a matter in which ‘the general Aboriginal view should prevail’ (a reference, it seems, back to the view of the NLC).551 However, Woodward J explained his doubts: ‘I say this particularly because I foresee the possibility that if the existing reservation of these waters for Aborigines were once breached, it might prove politically difficult to regain when Aborigines were better equipped to compete themselves.’552 Justice Woodward was clearly concerned that if Aboriginal people were to license non-Indigenous fishers then, later, if Aboriginal people themselves wanted (or, were ‘better equipped’) to commercially fish those waters, it may be hard for them to ‘take back’ the licences. This suggests that Justice Woodward worried about the level of control that Aboriginal people would in fact have, and that non-Indigenous
549 Ibid 81. 550 Ibid 81. 551 Ibid 123 [683]. Note explanation of different Aboriginal voices: at 3. 552 Ibid 81-82. 92 interests, particularly once entrenched, might still have power ‘over’ Indigenous interests even where Aboriginal people are meant to be able to control access.
As will be discussed in the final part of this chapter,553 Justice Woodward’s recommendations on these matters were not reflected in the ALRA or the reciprocal NT legislation. Commercial fishers were instead given a blanket exemption if they had a pre-existing licence to enter the buffer zone. The arrangements in the reciprocal legislation became known as a sea closure. Pursuant to these arrangements, Aboriginal people had no control over the movements of licensed commercial fishers in their sea closure. In effect, the settler-state’s governmental authority to grant commercial licences was given priority over Indigenous rights. However, Indigenous opportunities for commercial fishing, including beyond the buffer zone, were also raised during the Woodward Commission.
(c) Indigenous Opportunities for Commercial Fishing
In relation to commercial fishing, the Second Report raised two issues: a claim from ‘some’ Aboriginal people to deep-sea prawn fishing grounds; and the general possibilities of Aboriginal commercial fishing. His Honour noted that the claim to deep sea prawn fisheries was not put by the NLC, other than how it may have related to the 12 mile claim.554 The only two fisheries operating in the NT at that time were perch and prawn, so perhaps it was not a surprise that one of those would be raised as part of an Indigenous commercial fishing aspiration.555 Justice Woodward determined that he could see ‘no real merit in it from a traditional viewpoint or otherwise’, and that ‘the financial backing required by such an enterprise is such that I cannot imagine Aborigines undertaking it in the foreseeable future.556 However, Justice Woodward did identify the ‘great potential for Aboriginal involvement in more intensive fishing of Northern Territory waters’.557
His Honour noted that a number of ventures had been tried with ‘mixed results’, and that ‘firm management’ of ‘boat usage, and expert management to ensure quality control and proper marketing’ were the critical issues.558 These comments were slightly more optimistic
553 Also see discussion at: Chapter V, Part B. 554 Woodward Commission Second Report (n 457) 82. 555 NLC, Submission to Aboriginal Land Rights Commission (n 30) Schedule K. 556 Woodward Commission Second Report (n 457) 82. 557 Ibid 81. 558 Ibid. 93 than those of Stephen Davis discussed in Chapter III.559 Justice Woodward’s final recommendations included that fisheries enterprises ‘should be encouraged wherever firm management can be assured. The first aim should be local self-sufficiency, with commercial development following only after careful investigation.’560 Phrases such as ‘firm’ or ‘expert’ management appeared to relate to non-Indigenous trainers or operators. There was no suggestion in Justice Woodward’s Second Report of increased Indigenous authority over commercial fishing, but instead a presumption that it would only operate with non- Indigenous oversight and guidance. There was, perhaps, a pragmatic element to these findings of Justice Woodward. The reality of involvement in the non-Indigenous controlled commercial fishing sector, particularly in areas remote from non-Indigenous trading centres, was that significant capital and equipment was required. What was not addressed in this context was the sense that it was not fair that only non-Indigenous commercial fishers were able to profit from sea country.561 This issue was also raised in the first sea closure application hearing.562
3. Conclusions on the Woodward Commission
The NLC’s submissions used the word ‘compromise’, rather than reconcile: ‘a compromise between the claims of the traditional owners and the holders of existing legal interests …’.563 Justice Woodward’s recommendation of a buffer zone was a compromise. Although the two kilometre buffer zone ultimately recommended was much smaller than the NLC’s proposed 12 miles, it was still a strong articulation of Indigenous control over entry to seas. It seems that the most compelling way to understand Justice Woodward’s approach was that he was concerned about how much time would be lost if 12 miles was put forward. Such a large distance out to sea would have been an instant red flag to legislators and potentially slowed down legislative recognition of Aboriginal land rights.
Conversely, the vague nature of what the buffer zone was, beyond controlling who entered, created questions about what other decisions Aboriginal people could make about their sea country. Could Traditional Owners enforce the buffer zone, or did they have to rely on settler-state enforcement such as the police? Could Traditional Owners make decisions about
559 See discussion at: Chapter III, Part C, Section 2. 560 Woodward Commission Second Report (n 457) 83. 561 See discussion at: Chapter III, Part C, Section 2. 562 See discussion at: Chapter V, Part C, Section 3. 563 NLC, Submission to Aboriginal Land Rights Commission (n 30) 50. 94 environmental regulation in the buffer zone, or was it presumed they would be subject to Commonwealth/NT regulation? The focus on protecting privacy of land meant that detailed consideration was not given to what the buffer zone meant beyond requiring people to ask for permission to enter. Giving an entity other than settler-state institutions governance powers over sea country was novel at this point in time. The settler-state appeared not to have a sophisticated understanding of how it could confer greater authority on Aboriginal people.
In a more overarching sense, Justice Woodward’s belief that negotiations were the best approach to any form of reconciliation of interests came across strongly in both reports. Justice Woodward clearly articulated at the beginning of his First Report that an ‘imposed solution’ is unlikely to be a ‘good or lasting solution’, and that although a process of consultation and negotiation would take longer, it would be ‘far more likely to be generally acceptable and to have permanent effect’.564 This was a statement about Aboriginal land rights more generally, but as will be seen in Chapter V,565 the practical reality of the sea closure provisions led the NT Chief Minister in 1989 to suggest that negotiations were a better option than continuing contested sea closure application hearings.
D. The Drafting of and Debate Around the ALRA
Justice Woodward’s Second Report provided drafting instructions for the ALRA.566 His Honour’s proposed legislation contained a definition of ‘Aboriginal land’ as an estate in fee simple.567 It then detailed that an estate in fee simple to parcels of land described in Schedule 3 (of the proposed legislation) would be vested in the newly formed Aboriginal Land Trust.568 The proposed Schedule 3 stated that the areas listed should ‘contain descriptions by boundaries, including where appropriate off-shore islands, and waters within two kilometres of seaward of the low tide lines’.569 Therefore, Woodward J’s drafting instructions did not contain a specific section in the body of the proposed legislation about sea country. Further, the reference in the schedule was, in line with the tenor of the Second Report, presented as an add-on to the land, rather than representing sea country in its own right.
564 Woodward Commission First Report (n 338) 2. 565 See discussion at: Chapter V, Part B, Section 3. 566 Woodward Commission Second Report (n 457) Appendix D. 567 Ibid 161 (s 3 of the proposed legislation). 568 Ibid 164 (s 12 of the proposed legislation). 569 Ibid 179 (Schedule 3 of the proposed legislation). 95
This section contains three subsections that reveal the evolving nature of sea rights in the ALRA: the Whitlam Bill of 1975, the Fraser Bill of 1976 and then the specific consideration of sea country issues in the Commonwealth Joint Select Committee on Aboriginal Land Rights in the NT in 1977. Initially, the Whitlam Government took up the recommendation of the two kilometre buffer zone. However, as will be discussed, the buffer zone was pared back after the dismissal of Gough Whitlam. Given that even the suggestion of the two kilometre buffer zone caused a high level of concern in the Commonwealth Parliament, Woodward J was perhaps right that anything to the 12 mile limit could have had a more dramatic, unintended adverse impact on Indigenous sea rights going forward.
1. The Whitlam Bill—The 1975 Bill
When the original Aboriginal Land (Northern Territory) Bill 1975 (Cth) (‘1975 Bill’) was introduced to the Commonwealth Parliament on 16 October 1975, the two kilometre buffer zone was detailed in the body of the legislation.570 In this sense, it went further than Woodward J’s proposed legislation in that it specifically set out one clause related to sea country. Clause 73 set out the penalty for entry on Aboriginal land (a clause similar to the contemporary s 70 ALRA). Clause 74 then clarified that where Aboriginal land adjoins the territorial sea or internal waters, that part of the sea within two kilometres of the boundary of Aboriginal land would, for the purposes of cl 73, be ‘deemed’ to be part of Aboriginal land. Clause 74 was ‘subject to the obligations of Australia under international law’, and regulations could exempt prescribed classes of ships absolutely or subject to conditions.571 The Second Reading Speech did not provide detailed commentary on the sea country aspects of the bill. The issue was discussed under the heading ‘Right of Entry’, and it was simply stated by Les Johnson, the then Minister for Aboriginal Affairs, that: ‘The Bill gives Aboriginals control over entry onto their land and the 2 kilometres of sea adjoining it.’572 This seems very understated given its significance as the first legislative recognition of Aboriginal control of entry over an area of sea. However, the context of the ALRA must be
570 Aboriginal Land (Northern Territory) Bill 1975 (Cth) cl 74 (‘1975 Bill’) and Northern Land Council, Submission to Joint Select Committee on Aboriginal Land Rights in the Northern Territory (1977) 1 (‘Submission to Joint Select Committee’). 571 1975 Bill (n 570) cl 74(2)-(3). 572 Commonwealth, Parliamentary Debates, House of Representatives, 16 October 1975, 2222 (Les Johnson, Minister for Aboriginal Affairs). 96 kept in mind as terrestrial land rights were also significant. The sea country elements were just part of the historic nature of the legislation.
On 11 November 1975, there was a sudden change of government when Gough Whitlam was controversially dismissed, and Malcolm Fraser became Prime Minister. The 1975 Bill consequently lapsed. In the one month between the 1975 Bill’s introduction and the dismissal, there was little time for debate on the sea country elements. The only mention of the sea country issues in the Hansard was by Bob Ellicott, a then member of the Opposition who went on to become Attorney-General in the next government (the Fraser Government).573 Ellicott suggested that the two kilometre buffer zone ‘could give rise to considerable concern’ in the wider community as non-Indigenous people would be excluded from beaches and rivers which they previously had access to.574 His comments were premised on the suggestion that if Aboriginal people were ‘entitled to be free from interference with their traditional fishing rights’ that should be enough, and there would be no need for the proposed larger scale exclusions.575 This shifted the conversation away from Indigenous control of entry to sea country, and focused on the narrower idea of protection of traditional fishing rights. In line with Ellicott’s reflections, the Aboriginal Land Rights (Northern Territory) Bill 1976 (‘1976 Bill’) removed the automatic buffer zone and, as a result, prioritised non-Indigenous access and economic exploitation over Indigenous control of entry.
573 Commonwealth, Parliamentary Debates, House of Representatives, 4 November 1975, 2753 (Bob Ellicott). Ellicott became Attorney-General on 22 December 1975, following a short stint by Ivor Greenwood immediately after the dismissal of Gough Whitlam (on 11 November 1975): Parliament of Australia, List of Australian Attorneys-General (Web Page)
2. The Fraser Bill—The 1976 Bill and the Passing of the ALRA
There was bipartisan support for land rights and the Fraser Government left much of the 1975 Bill intact; however, there were some important differences.576 With respect to sea country, there was one significant difference. The 1976 Bill did not provide the automatic two kilometre buffer zone.577 Instead, the ‘legislation provided powers to the NT Legislative Assembly to make reciprocal laws regulating or prohibiting the entry of persons into waters that were within two kilometres of Aboriginal land’.578 Clause 73(1)(d) of the 1976 Bill provided that the NT Legislative Assembly had the power to make:
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 …
It was much later noted (without a reference) in Risk v Northern Territory (‘Risk HCA’)579 that attempts to amend the 1976 Bill to reintroduce the automatic buffer zone recommended by Woodward J were rejected.580 Les Johnson, who was now an Opposition member, raised the issue of sea country on several occasions during the parliamentary debates. He noted that the omission has ‘upset a large number of Aboriginal communities as it offers them no protection of their fishing and religious rights of their land’ (he particularly mentioned communities in Yirrkala, Groote Eylandt and the Tiwi islands).581 Another Opposition member, Urquhart (Ted) Innes, asked rhetorically why responsibilities such as access to sea country, which ‘will have a major effect on the fishing interests of Aboriginals’ and impact sacred sites, are being ‘blithely handed over’ to the NT Legislative Assembly.582 There were also about 70 standard form petitions presented to the Senate and the House of Representatives that stated, inter alia, that the NT Legislative Assembly should not be granted
576 Leon Terrill, Beyond Communal and Individual Ownership: Indigenous Land Reform in Australia (Routledge, 2016) 2. For descriptions of some of the differences see: Neate (n 465) 15, 41, 122, 328. 577 Blue Mud Bay Case (n 1) 90 [133]. 578 Butterly, ‘Changing Tack’ (n 200) 8 and Butterly, ‘A Tireless Fight’ (n 227). 579 Risk v Northern Territory (2002) 210 CLR 392 (‘Risk HCA’). 580 Ibid 406 [35]. Also see discussion at: Butterly, ‘A Tireless Fight’ (n 227). 581 Commonwealth, Parliamentary Debates, House of Representatives, 17 November 1976, 2789 (Les Johnson). Also see: Commonwealth, Parliamentary Debates, House of Representatives, 17 November 1976, 2802 (L G Wallis) and Commonwealth, Parliamentary Debates, House of Representatives, 1 December 1976, 3081 (Les Johnson). 582 Commonwealth, Parliamentary Debates, House of Representatives, 17 November 1976, 2806 (Urquhart Innes). 98 power to pass legislation about seas adjoining Aboriginal land and fishing rights of ‘non- Aborigines’ within two kilometres of Aboriginal land’.583 Johnson, Innes and the petitioners foresaw that removing the automatic buffer zone gave leeway for the prioritisation of access for non-Indigenous people and settler-state sanctioned economic exploitation. As will be seen in the next chapter, the NT Legislative Assembly did prioritise certain non-Indigenous interests within sea closures.584
In response to the queries about the NT Legislative Assembly’s role, Ian Viner (the then Commonwealth Minister for Aboriginal Affairs) stated that assurances had been made by the Leader of the NT Legislative Assembly.585 These assurances included that the drafting of the NT legislation would involve consultation with the Aboriginal community and continued involvement of members of the Commonwealth Parliament.586 Further, Viner stated that NT legislation would not become law unless the Commonwealth assented to it.587 The NT was to gain self-government in 1978, making this statement less persuasive, but as noted above there were still limitations on the legislative powers of the NT. However, this perhaps also indicated an intent for more localised conversations and negotiations in the sense that Justice Woodward was advocating.
The issues to do with sea country were still being ventilated in parliamentary debates right up until, and in fact beyond, when the ALRA was passed and assented to on 16 December 1976. In mid-November, Viner announced the establishment of the Commonwealth Joint Select Committee on Aboriginal Land Rights in the NT (the ‘Committee’) to report no later than 31 May 1977.588 In relation to sea country, the Committee was tasked with making recommendations on the NT reciprocal legislation.
Before considering the Committee’s deliberations and recommendations, it is useful to briefly outline the ALRA’s approach to terrestrial land. The ALRA provided for existing Aboriginal
583 These petitions were presented between early October 1976 to early December 1976. For example: Commonwealth, Parliamentary Debates, House of Representatives, 18 November 1976, 2839 (Norman Fry, Les Johnson and Les McMahon) and Commonwealth, Parliamentary Debates, Senate, 3 December 1976, 2487 (Gordon Davidson). Due to the way these petitions were recorded in the Hansard (as being from a certain number of ‘citizens of Australia’), it is difficult to tell who the submissions were from, and whether they represented Indigenous groups. However, they do indicate that these sea country issues were noticed and commented on by the public. 584 See discussion at: Chapter V, Part B. 585 Commonwealth, Parliamentary Debates, House of Representatives, 17 November 1976, 2781 (Ian Viner). 586 Ibid. 587 Ibid 588 Ibid. 99 reserves to be transferred into Aboriginal ownership, and ‘included a land claims mechanism, whereby unalienated Crown land might be returned to those people who could demonstrate that they were the traditional Aboriginal owners of the land’.589 There were also restrictions such that unalienated Crown land within towns could not be claimed.590 The land that was either transferred into Aboriginal ownership, or was successfully claimed as it was unalienated Crown land, had not necessarily been viewed as ‘open access’ to the public in the way that sea country might have been. The sea did not have a recognised settler-state tenure system underneath that could be co-opted for use in the legislation. There was no one priority that necessarily trumped in the sea. As the next section demonstrates, the Committee continued the debate between the automatic buffer zone (seen to prioritise Indigenous control over entry), and other forms of recognition of Indigenous sea country interests (generally seen to prioritise non-Indigenous interests).
3. The Joint Select Committee on Aboriginal Land Rights
The Committee was appointed to examine, inter alia, ‘…the adequacy of provisions of the laws of the Northern Territory relating to … entry to seas adjoining Aboriginal land …’.591 Unusually, the NT Legislative Assembly introduced their proposed reciprocal legislation, the Aboriginal Lands and Sacred Sites Bill 1977 (NT) (the ‘NT Aboriginal Lands Bill’), on 3 March 1977, while the Committee was still deliberating. The bill was introduced by Goff Letts who was the Majority Leader of the NT Legislative Assembly. To explain this unusual strategy, Letts stated: ‘I want to get something in at this sitting so that the Aboriginal people and other people in the community know what the proposals are and can come back to us’.592 The provisions of the NT Aboriginal Lands Bill were used as a baseline for the Committee’s discussion. Given this, it is useful to explore the bill first. This section will then consider the NLC’s submissions to the Committee, before turning to one practical issue, related to international law, that was central to the Committee’s considerations. Finally, the section will detail the recommendations of the Committee.
589 Terrill (n 576) 74. 590 ALRA (n 6) s 3(1). 591 Parliament of Australia, Report of the Joint Select Committee on Aboriginal Land Rights in the Northern Territory (1977) iv (‘Report of Joint Select Committee’). The other areas that the Committee was required to examine were: identification of Traditional Owners and the adequacy of laws relating to entry to Aboriginal land; protection of sacred sites; and wildlife conservation: at iii-iv. 592 Northern Territory, Parliamentary Debates, Legislative Assembly, 3 March 1977, 62 (Goff Letts, Majority Leader). 100
(a) The NT Aboriginal Lands Bill’s Approach to Sea Country
In outlining the NT Aboriginal Lands Bill’s approach to sea country, Letts stated that given there were already penalties for entering Aboriginal land, ‘waters do not need to be closed merely to prevent people from entering land from the sea’.593 Instead of an automatic sea closure (such as in the 1975 Bill), the NT Aboriginal Lands Bill put forward a process whereby Aboriginal communities could apply to have their seas closed for specified reasons: ‘Those reasons may be to prevent exploitation, to preserve the sanctity of places of particular meaning or significance to Aboriginals or to preserve the breeding ground of a particular food source.’594 This was quite a significant move away from Justice Woodward’s focus on the sea as a buffer to protect Aboriginal land. In effect, this was recognition from the settler-state that sea country, separate to its relationship to land, was important to Aboriginal people in relation to use rights and protection of places of significance. The reference to preventing exploitation suggested that Aboriginal people should be able to have some control over non-Indigenous fishing and use of their sea country. The corollary to this separation of land and sea was that there was no longer an automatic two kilometre buffer that would have likely led to large areas of waters that Indigenous peoples could control entry over.595 This created the need for another type of application process specific to the sea.
If an Aboriginal community wanted to apply to close their seas, they would apply to the ‘Administrator in Council’ who would then refer it to the Aboriginal Land Commissioner for investigation. After investigation by the Aboriginal Land Commissioner, the results would be given to the Administrator and ‘discussed with [the] owners who made the request’.596 As part of that process, the Aboriginal community would specify the ‘type and degree of protection requested, from total closure to … closure against a form of fishing’.597 In making the decision, the Administrator could either totally close the waters, implement particular
593 Ibid 59. 594 Ibid. 595 There is a sense, from the debates, that rather than being a deliberate separation of land and sea, it might also have been used as a way to limit the impact of what would have been large two kilometre buffer zones across the NT coastline. For example, Letts stated as a reason for not allowing the buffer zone that: ‘The same type of argument would lead to the need for a buffer zone also on the land side if one was to accept that principle around the whole of the Aboriginal land area.’: Ibid. This seems to gloss over the necessary differences of land and sea in this respect. As will become apparent in the analysis on the first sea closure application, how close fishers could come (in effect, what is sea, and what is land – the question that would arise in the Blue Mud Bay Case) created practical difficulties and conflicts. 596 Ibid 60. 597 Ibid. 101 forms of exclusion, or reject the application altogether.598 This provided recognition that Aboriginal communities would have different relationships to the sea that required varied types of closures. There was a clear sense here that exclusion could go beyond just preventing fishing.
In putting the provisions about sea closures forward, Letts’ language was about compromise:
It is no secret that this [sea country issue] was the most difficult area in which we and the draftsmen had to attempt to do something… What we finished up with is a type of compromise which will still preserve a good deal of the waters off the coastline available for use…. It will provide for the preservation of both traditional and need rights for Aboriginals in the proximities of their communities [emphasis added].599
The use of the sentiment of preserving in two different ways here is relevant. Aboriginal ‘traditional and need’ rights would be preserved and use of a ‘good deal’ of waters would also be preserved for non-Indigenous people. This latter use of the sentiment gives a normative sense that those waters were already open and should remain so; the status quo should be preserved. In terms of Aboriginal use rights, while ‘traditional rights’ was a common phrase, ‘need rights’ was unusual. Perhaps it was meant to have a similar meaning to subsistence, and that might mean ‘traditional’ has a broader meaning, like the spiritual authority discussed in Chapter III.600 The ability to apply for a ‘full closure’ suggested that there was an understanding that in some areas total control by Indigenous peoples of who can enter was appropriate and that, therefore, this control could sometimes have priority over open access.
One issue that was not focused on by Letts was Indigenous communities undertaking commercial fishing. This was referenced in parliamentary debates by another member of the NT Government, Hyacinth Tungutalum, a Traditional Owner from the Tiwi Islands and the first Indigenous person elected to the NT Legislative Assembly.601 This issue was not taken further by the NT Legislative Assembly or the Committee in the context of the NT
598 Ibid. 599 Ibid 59. 600 See discussion at: Chapter III, Part C, Section 1. 601 Northern Territory, Parliamentary Debates, Legislative Assembly, 3 March 1977, 72 (Hyacinth Tungutalum). 102
Aboriginal Lands Bill. However, separately, in the same parliament, over the next two years the Fish and Fisheries Act 1979 (NT) was also being drafted and debated.
As noted above,602 until 1979 there was ‘no special provision regarding traditional Aboriginal fishing’ in the NT legislation.603 The Fish and Fisheries Act 1979 specifically stated that the legislation did not ‘operate to limit the right of Aboriginals to enter, and use the resources of, … waters in accordance with Aboriginal tradition’.604 This section was then qualified such that it did not allow Aboriginal persons to ‘engage in commercial activity’.605 However, in a separate section, the legislation specifically provided for Aboriginal communities to apply for a certain class of licence that allowed for the ‘taking of fish for sale or commercial purposes, and the processing of those fish’.606 It appears this section was aimed at allowing Aboriginal communities to apply for licences as a community rather than as individuals (as was generally required for non-Indigenous people).607 Therefore, the NT Legislative Assembly had turned its mind to Indigenous commercial fishing, but this was not connected to sea closures. This siloing meant that sea closures were not associated with building Indigenous opportunities for commercial fishing. A connection was made between fisheries legislation and Indigenous involvement in enforcement. During the parliamentary debates about the Fish and Fisheries Act 1979, one member of the NT Legislative Assembly suggested that Aboriginal people should be appointed as fisheries officers because ‘allowing local people to patrol the waters surrounding the land, we are assured of more efficient control’.608 This idea was not taken up formally until decades later,609 but the sentiment behind it was raised in the more specific context of concerns about enforcement of sea closures.
The issue of non-Indigenous fishers intruding on Aboriginal land and sea was emphasised by the NLC in their submissions to the Committee: ‘Not only do Aboriginals fear the hurt that intruders can cause to their special areas of the sea but they see the possibility of intruders being emboldened by the lack of law enforcement facilities in these remote areas to go ashore
602 See discussion at: Part C, Section 1 of this chapter. 603 Yarmirr FC (n 36) 595 [141]. 604 Fish and Fisheries Act 1979 (NT) s 93(1). 605 Ibid s 93(2). 606 Ibid s 14. 607 For example: Northern Territory, Parliamentary Debates, Legislative Assembly, 13 November 1979, 2215 (Jack Doolan). 608 Ibid. The issue of enforcing the fisheries legislation was also raised during the debates (and some of the challenges of appointing Indigenous fisheries officers): for example, Northern Territory, Parliamentary Debates, Legislative Assembly, 13 November 1979, 2227 (Bob Collins). 609 See discussion at: Chapter VIII, Part D, Section 2. 103 and disturb the peace …’.610 The report of the Committee noted that submissions were made, ‘mainly by non-Aboriginals’, that sea closures would be difficult to enforce due to remoteness and lack of law enforcement options.611 Therefore, they submitted that the mechanism of sea closures should not be pursued.612 The Committee did pursue sea closures in their recommendations, but did not seek to resolve these enforcement issues. These issues will be further discussed in the context of sea closures.613 Further, as will be explored in Chapter V,614 evidence presented to the first sea closure application hearing clearly articulated that Indigenous communities themselves were attempting to effect enforcement of their rights in sea country, even if they did not have any settler-state legal powers to do so. This was also evidenced in the contemporary work of Barber discussed above.615
The NT Aboriginal Lands Bill continued to be debated in the NT Legislative Assembly throughout the Committee’s work. The Committee noted in its final report that the witnesses who gave evidence to the Committee ‘generally did not support the provisions’ of the bill relating to sea country, but for vastly different reasons. Aboriginal witnesses strongly supported ‘preserving’ the automatic two kilometre buffer that Woodward J recommended; while there was another group of witnesses (‘mainly non-Aboriginals’) that argued that the ‘seas [should] remain open to all Australians’.616
The NLC presented a draft bill as part of the Committee’s inquiry, and proposed that the territorial sea within two kilometres of the boundary of Aboriginal land ‘be deemed to be part of that Aboriginal land’.617 The NLC clearly articulated that there were two options in relation to sea country, either: close all the seas and have applications by non-Indigenous people to open parts of the sea; or keep all the seas open and have applications by Aboriginal people for closure.618 The NLC supported the former, and included a section that allowed for non-Indigenous people to apply to open parts of the sea.619 If the latter was chosen, then the NLC submitted that ‘the machinery that is laid down to make closure possible would need to be responsive, simple and able to evaluate the evidence that Aboriginals will bring forward to
610 NLC, Submission to Joint Select Committee (n 570) 18. 611 Report of Joint Select Committee (n 591) 57. 612 Ibid. 613 See discussion at: Chapter V, Part B, Section 2(b) and Part C, Section 4. 614 See discussion at: Chapter V, Part C, Section 2. 615 See discussion at: Chapter III, Part C, Section 3. 616 NLC, Submission to Joint Select Committee (n 570) 55-57. 617 Ibid 30 (clause 9(1) of the draft Bill). 618 Ibid 19. 619 Ibid 30 (clause 10 of the draft Bill). Also see: Keen (n 207) 425. 104 support their claims’.620 This again articulated a sense of priority, one of those options provided underlying Indigenous control of who enters the sea, and the other, underlying open access and settler-state sanctioned economic exploitation. The NLC’s submissions add further nuance here in arguing that if the latter was prioritised then, at least, the application process for Aboriginal people to close the sea must be accessible and fair.
In their submissions, the NLC noted that in Australia there was a ‘generally held belief that all people have a free and unrestricted right to the use of the sea and inland waters’.621 This statement was used as an anchor to make the point that, in fact, the sea was ‘not freely available to all Australians’, and that the government can place restrictions on commercial fishers and other recreational pursuits.622 It seems these submissions were made to answer specific arguments about the potential for ‘racial tensions’ if seas were closed.623
(b) Sea Closures and ‘Racial Tensions’
The report of the Committee noted that submissions were made, ‘mainly by non- Aboriginals’, in support of the idea that the seas should remain open to all, including because: ‘[d]iscrimination in favour of one race is the basis for racial tension’.624 Advice was sought from the Attorney-General, who at that stage was Bob Ellicott, about the impact of the Racial Discrimination Act 1975 (Cth) (‘RDA’). Ellicott stated that there was ‘no legal substance’ in suggestions that any form of sea closure would be contrary to the RDA.625 The undertones of this ‘racial tensions’ argument were apparent throughout the Committee’s report, including references to the potential for ‘ill-feeling between the communities’.626 As foreshadowed in Chapter II,627 there is a certain type of race politics based on arguments of formal equality, in essence that Indigenous and non-Indigenous people should have equal rights, that is part of a particular non-Indigenous NT cultural identity.628
620 NLC, Submission to Joint Select Committee (n 570) 19. 621 Ibid 18. 622 Ibid 18. 623 Report of Joint Select Committee (n 591) 57. 624 Ibid. 625 Ibid 100. 626 Ibid 60. 627 See discussion at: Chapter II, Part D, Section 3(b)(ii). 628 Robyn Smith (n 320) 201 and Carment (n 320) 8. 105
Race issues have played an often divisive role in NT politics and society.629 Historian David Carment noted that early NT Governments ‘championed’ what political scientist Alistair Heatley had termed ‘Territorianism’.630 Territorianism was an aggressive form of identity that sought strong economic growth and fought for continuing independence of the NT from ‘Canberra’ (the Commonwealth Government).631 A significant element of Territorianism was strong opposition to Aboriginal land rights.632 Underneath Territorianism were notions of a ‘frontier’ community.633 The ‘frontier’ describes where two ‘opposing world views’ come together.634 In the context of this NT identity, the frontier was Indigenous/settler-state, as well as environmental in the sense of the remoteness and vastness of the NT. It was clear that the concept was used to legitimise the experience of the settlers who were ‘taming’ this frontier.635 One way in which this narrative played out was the view that Aboriginal land rights led to a ‘lack of equality’ for (non-Indigenous) ‘Territorians’.636 Aboriginal land rights divided the (imagined) community rather than united.637 Similar sentiments can be seen in the race-based arguments about keeping the seas open ‘to all Australians’.638
One aspect of the way these race-based arguments unfolded was that common law public rights were not a core part of the argument put before the Committee. Instead, there was
629 Brennan, ‘Wet or Dry’ (n 208) 7. This broad historical context is highly relevant, but it is also important to acknowledge that such generalisations face some difficulties. For example, there has been over 20 Indigenous politicians in the NT Parliament since 1974 (representing different parties, or as Independents), including a Chief Minister and several senior Ministers: ‘Indigenous Parliamentarians, Federal and State: A Quick Guide’, Parliament of Australia, Web Page (2017)
Given that there were no legal issues here in relation to racial discrimination, these arguments could be interpreted as another way of expressing the choice of priorities. On the other hand, international law threw up some substantive legal considerations.
(c) International Law and Exclusive Rights to the Sea
There were some suggestions that any Ordinance made by the NT Legislative Assembly would be inconsistent with the provisions of the Seas and Submerged Lands Act.641 Ellicott advised that any Ordinance made would be ‘merely a legislative exercise of [the] sovereignty’ declared by the Commonwealth over the territorial sea.642 However, Ellicott noted that a problem might arise in relation to Australia’s international obligations to provide a right of innocent passage to ships of all nations. Mirroring the 1975 Bill, the NLC’s proposed draft legislation contained a short sub-section stating that sea closures were subject to the obligations of Australia under international law.643 Ellicott’s advice was that, if regulations were made closing waters, then a regulation exempting vessels in transit should be made.644 Therefore, the settler-state could give control to Indigenous peoples to determine who entered sea country, but it was limited by the settler-state’s own international law obligations. This issue would become pertinent again in Yarmirr FC, in determining what native title rights the settler-state could recognise in sea country.645
639 Edyvane and Blanch (n 235) 233. 640 See discussion at: Chapter VIII, Part C, Section 1(c). 641 Report of Joint Select Committee (n 591) 99 (Appendix 6: Letter from Attorney-General). 642 Ibid 99-100. 643 NLC, Submission to Joint Select Committee (n 570) 30 (clause 9(2) of the draft Bill). 644 Report of Joint Select Committee (n 591) 100. 645 See discussion at: Chapter VI, Part C, Section 3(b). 107
(d) Recommendations of the Committee
The Committee proposed that all waters be ‘open to the general community for recreational use, including non-commercial fishing’.646 Sea closures were to be negotiated between the NT Executive and the appropriate Aboriginal Land Council, and could be negotiated either for protection of waters or as a buffer zone to protect Aboriginal land.647 This demonstrated an understanding of the importance of sea country separately, as well as the relationship between land and sea. If there was an absence of agreement, then either party could apply to the Aboriginal Land Commissioner.648 It was not clear from the proposals what the Commissioner’s role would be and whether it would be binding. These proposals were generally in line with the NT Aboriginal Lands Bill, aside from the uncertainty as to the Commissioner’s role. In the NT Aboriginal Lands Bill, it was clear that the executive made the final decision after considering the Commissioner’s reasons. Both options gave a lot of power to the NT Executive.
According to the Committee’s proposal, in considering sea closure applications, the Aboriginal Land Commissioner had to consider ‘Aboriginal traditional and other interests as well as the commercial, environmental and recreational interests of the public’.649 There was no sense here of what sort of weighing up exercise that should entail. Separately, the Committee recommended that the rights of existing commercial fishing licensees be ‘retained’.650 It was not clearly articulated, but this seems to suggest commercial fishers with pre-existing licences could continue to fish within sea closures.651 However, the issuing of new fishing licences would involve consultation with the relevant Aboriginal Land Council. If there was disagreement about a commercial licence, it would be referred to the Aboriginal
646 Report of Joint Select Committee (n 591) xi. The Committee also proposed that consultation should occur between the NT Executive and the land councils ‘leading to definition of areas near substantial non-Aboriginal centres of population’ that would never be subject to a sea closure application: at xii. The NLC had itself suggested this idea, but in the context of all the seas being automatically closed. In the context of the Committee’s proposal, the NT Legislative Assembly later noted that this seemed unnecessary given the seas were already open and an application to close them would have to be considered anyway: Northern Territory, Parliamentary Debates, Legislative Assembly, 2 March 1978, 535 (Paul Everingham). This was not the last time this idea would be raised. The declaration of specific open recreational areas near non-Indigenous population centres was effectively implemented following the Blue Mud Bay Case and will be discussed in Chapter VIII, Part D, Section 2. 647 Report of Joint Select Committee (n 591) xi. 648 Ibid. 649 Ibid xii. 650 Ibid. 651 Ibid. 108
Land Commissioner, but in this circumstance, the Commissioner could ‘determine’ the application.652
Overall, the final proposal of the Committee demonstrated the choice made to prioritise non- Indigenous interests and underlying state control.653 The application process for Aboriginal people to close the sea was uncertain and did not seem accessible and fair given that the NT Executive wielded so much power. However, the Committee’s proposal did provide the opportunity for Aboriginal people to apply to control, to some degree, entry to certain areas of sea country. Further, despite the clear prioritisation of overarching settler-state control, the unresolved discussion on issues of law enforcement revealed that it was still not clear exactly what control meant in sea country, and who had the power and ability to enforce any restrictions on entry.
E. Conclusion
This chapter began with a consideration of the findings about settler-state assertions of sovereignty over land in the Gove Land Rights Case. That case was important as it started a series of events that led to the enactment of the ALRA and outlined several concepts that are of continued relevance in the sea country context. However, the explicit focus on sovereignty in the Gove Land Rights Case also reveals that the early debates about sea country rights were not expressed in such terms. Instead, the debate was framed by the settler-state as one of prioritisation of interests. There were several points in this chapter where the question was whether open access to the sea should take priority, or whether closing the seas to protect Indigenous interests should have priority. The compromise this prioritisation displays demonstrated that there was a genuine sense that Indigenous interests were valid and worthy of recognition and that a reconciling of interests, of some sort, was required.
This chapter introduced themes that will be seen throughout the episodes. The most important of these was the emergence of permission as a legal concept beyond its anthropological significance. Within this, there was also the difference in the more socio-legal approach of Justice Woodward to permission, compared to Justice Blackburn’s doctrinal approach. Another theme was that sometimes the granting of Aboriginal control over sea country was seen as an extension of protecting land rights; whereas at other times, control over sea
652 Ibid xiii. 653 Also see: Keen (n 207) 426. 109 country was viewed as recognising a separate and important relationship. It appears that when land and sea were not separated in evidence, recommendations or debate, Indigenous relationships to the sea were not strongly articulated. However, where the separation was articulated, this allowed for the settler-state to impose more compartmentalisation of sea country relationships (for example, by removing the automatic buffer and requiring an application process). Finally, an important theme that is articulated in this chapter is the lack of clarity about what control entailed in sea country. At this point in time, the settler-state was also trying to work out what their own governmental authority looked like. In this context, even discussions about key marine governance areas such as fisheries were taking place separately and not connected to the development of Indigenous sea rights legislation.
It is important to note that this chapter contains the least Indigenous voices of any of the chapters. Further, those voices were often mediated through paraphrasing in submissions, reports or parliamentary debates. It was not until the first sea closure hearing that the lack of first-person Indigenous evidence about Aboriginal relationships to the sea was raised as an issue that might limit non-Indigenous decision-makers’ understandings. From the second half of the next chapter and onwards, the Aboriginal voices explaining relationships to sea country were more able to be heard within the settler-state context. This changed the dynamics of how assertions of Indigenous sovereignty were presented.
The reciprocal legislation that was enacted by the NT Legislative Assembly followed the general approach of the Committee’s proposals. The next chapter examines this legislation - the first legislation in Australia that provided for large-scale Indigenous sea rights - and then considers its practical application through an exploration of the first sea closure hearing.
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V. EPISODE TWO: ‘CONTROL OF ENTRY ONTO SEAS ADJOINING ABORIGINAL LAND’—SEA CLOSURES AND THE MEANING OF CONTROL
A. Introduction
The Aboriginal Land Ordinance 1978 (NT),654 which became the AL Act after the NT gained self-government,655 provided that an application could be made by Aboriginal people to close seas out to two kilometres adjacent to Aboriginal land. Although the term was not used in the legislation, these became known as ‘sea closures’.656 The title of the relevant section in the legislation was: ‘Control of entry onto seas adjoining Aboriginal land’.657 This gave an overarching description of what ‘control’ meant: control over entry. In effect, this was a form of the requirement of permission. However, there were major limitations on whose entry Aboriginal people could control and what enforcement mechanisms were available if someone entered the sea closure in circumstances where they should not have. The legislative framework also did not provide Aboriginal people with the opportunity to participate in decision-making about broader sea country governance issues, such as regulating commercial fishing, even to the extent that these issues might impact on Aboriginal interests within sea closures.658
This chapter proceeds in two parts. Part B analyses the provisions of the AL Act and some of the overarching challenges that impacted the implementation of the legislation. In many respects, the provisions of the legislation followed on from the NT Aboriginal Lands Bill and the Committee’s recommendations.659 However, an analysis of the requirements and process of the legislation as enacted is an important element of understanding its application. The AL Act set out a process through which the Administrator would make the final decision on whether the seas would be closed. It also provided that the Administrator could request the Commissioner to inquire into, and report on, certain matters. The legislative parameters for
654 The Aboriginal Land Ordinance 1978 (NT) was assented to on 9 November 1978 and commenced on 1 February 1979. 655 Pursuant to s 73 of the NT Self-Government Act (n 493), any Ordinance made by the existing NT Legislative Assembly was valid ‘as if it had been passed by the Legislative Assembly under this Act’. 656 For example: Bergin (n 33) 172. Maggie Brady noted that it was ‘unfortunate’ that the term sea closure was adopted because ‘it gives a far grander interpretation’ of the AL Act’s powers and ‘probably serves to arouse unnecessary antagonism among those (non-Aboriginals) who feel that they will be restricted in their use of the seas’: Maggie Brady, ‘Sea Rights – The Northern Territory ‘Sea Closure’: A Weakened Law’ (1985) 1(15) Aboriginal Law Bulletin 8. 657 AL Act (n 31) Part III. 658 Ganter (n 34) 200 and McIntosh (n 270) 19. 659 See discussion at: Chapter IV, Part D, Section 3. 111 the Commissioner’s inquiry put the concepts of ‘Aboriginal tradition’ and ‘strangers’ at the forefront.660 The other element of the inquiry was consideration of whether anyone would be disadvantaged by the sea closure.661 Given the Commissioner’s role here (inquiring, not making a recommendation), there was no sense of how the disadvantage would be weighed up in the final decision. Yet, to some degree, these competing priorities were already dealt with through the provision in the legislation of several exemptions to declared sea closures, including in relation to commercial fishers who already held licences.662 In this context, the extent, if any, to which commercial fishers were disadvantaged by a sea closure was discussed at length by Justice Toohey in the first sea closure report.663
Part C then examines the hearing of the first sea closure application before Justice Toohey sitting as the Aboriginal Land Commissioner (‘the Commissioner’). A close examination of the hearing of the first sea closure application provides insights into issues beyond the framework of sea closures. This part begins by exploring the claim to control that was made by the Yolngu community during the hearing. The claim was described more broadly than the legislation would have recognised and was connected to the pre-history of the sea closure application. The hearing also revealed interactions between Aboriginal people, commercial fishers and the settler-state that demonstrated Indigenous assertions of control over sea country at the interface of Aboriginal law and settler-state law. Part C also discusses the lack of settler-state enforcement capacity for sea closures. Given this, the hearing in effect demonstrated that while the AL Act set out a form of compromise between assertions of Indigenous and settler-state sovereignties, the settler-state was not necessarily able to deliver that in practice. The analysis of the first sea closure hearings reveals Indigenous voices giving evidence about their relationships to the sea, in an everyday context, and also the ways in which Indigenous interests were being interfered with by non-Indigenous people, particularly commercial fishers.
B. Applying to Close the Seas
The AL Act prescribed an application process through which Aboriginal people could apply to close the seas up to two kilometres adjacent to Aboriginal land.664 The legislation took the
660 AL Act (n 31) s 12(3)(a)-(c). 661 Ibid s 12(3)(d)-(e). 662 Ibid ss 16-18, 20. 663 Final Report: Milingimbi Sea Closure (n 479) 16-20. 664 AL Act (n 31) s 12. 112 option that normatively favoured underlying settler-state control, with an opportunity for Aboriginal people to apply to close the seas. Given the historical positioning of this chapter, the provisions will be described in the past tense, however, the provisions relating to sea closures have not been significantly amended since the AL Act’s commencement and are still in force.
This section will first analyse the provisions that direct the inquiry to be conducted by the Commissioner. It will then turn to explore the classes of people that were exempt from sea closures. These exemptions had a significant impact on the level of control that Aboriginal people in fact had over entry onto seas. Finally, this section will conclude with a summary of the nine sea closure applications that have been lodged since 1979 and a discussion of why only two sea closures were ever declared.
1. Sea Closure Application Process: Aboriginal Tradition Versus Non- Indigenous Disadvantage
Section 12(1) of the AL Act gave the power to the Administrator (in effect, the NT Executive) to ‘close the seas adjoining and within 2 kilometres of Aboriginal land to any persons or classes of person, or for any purpose’.665 The AL Act made clear that the NT Executive was the final decision maker in relation to sea closures and the Commissioner had a limited role. Section 12(3) provided that the Administrator may refer the matter to the Commissioner and require the Commissioner to ‘inquire into and report on’ certain criteria.666 If the matter was referred to the Commissioner, it was not the role of the Commissioner to make a recommendation.667 Relevantly, in the ALRA, it was clear that the Commissioner, in relation to Aboriginal (terrestrial) land claims, was to report and make a recommendation to the Commonwealth Minister.668 Of course, a recommendation only has to be considered by the executive, but attention is necessarily drawn where the executive refuses recommendations of statutory bodies. Further, reports of statutory bodies are often made public, as was the case with reports produced by the Commissioner under the ALRA and also the sea closure reports, which allows critique of why the executive did not follow a recommendation. These factors
665 The only persons that the Administrator could not close the seas to were: ‘Aboriginals who are entitled by Aboriginal tradition to enter and use those seas and who enter and use those seas in accordance with Aboriginal tradition’: AL Act (n 31) s 12(1). 666 However, if the Administrator was not ‘prepared to close an area of seas within 56 days of the matter being referred to him’ then the Administrator was required to refer to the Commissioner: Ibid s 12(3). 667 Final Report: Milingimbi Sea Closure (n 479) 8. 668 ALRA (n 6) s 50(1)(ii). 113 keep a certain level of political accountability in executive decision-making. Whereas, in this context, the AL Act made clear that the weighing up of the prioritisation of Indigenous and non-Indigenous interests, in respect of closing the seas, was to be done by the NT Executive alone.
In practice, these issues did not appear to become contentious. Both the sea closures that were declared were referred to the Commissioner and two respective inquiries were conducted and reports delivered to the NT Executive.669 Both these sea closures were affirmed by NT Country Liberal Party executives, led by different Chief Ministers, in 1983 and 1989 respectively.670 However, the power that the legislation gave to the NT Executive was a way, alongside the exemptions discussed below, in which settler-state assertions of governmental authority were maintained. On the other hand, the Commissioners’ inquiries provided a space where discussions about Indigenous relationships to sea country could take place, and the associated (publicly available) reports produced by the Commissioners played an important role in documenting Indigenous assertions of sovereignty over sea country. The content of the hearings and the reports were guided by the criteria that the NT Executive could request the Commissioner to inquire into. These criteria were listed in s 12(3) AL Act.
(a) Aboriginal Tradition and Strangers
The first of the s 12(3) AL Act criteria put the concepts of Aboriginal tradition and strangers at the forefront of the inquiry: ‘whether, in accordance with Aboriginal tradition, strangers were restricted in their right to enter those seas’.671 Aboriginal tradition in the AL Act was defined as having the same meaning as in the ALRA.672 The ALRA defined it as ‘the body of traditions, observances, customs and beliefs of Aboriginals’, including ‘as applied in relation to particular persons, sites, areas of land, things or relationships’.673 Aboriginal tradition in the ALRA ‘accords with the meaning that would ordinarily be attached to the expression’.674 It was not restricted in the way that the phrase ‘traditional laws and customs’ has become, in the context of native title, such that the tradition must have continued to be observed
669 Final Report: Milingimbi Sea Closure (n 479) and Commonwealth, Office of the Aboriginal Land Commissioner, Final Report: Closure of Seas: Castlereagh Bay/Howard Island Region of Arnhem Land (1988) (‘Final Report: Castlereagh Bay Sea Closure’). 670 Ganter notes that upon advice from the NT Government, successive Administrators generally referred sea closures rather than grant approval themselves: (n 34) 200. 671 AL Act (n 31) s 12(3)(a). 672 Ibid s 3. 673 ALRA (n 6) s 3. Also see Toohey J’s discussion: Final Report: Milingimbi Sea Closure (n 479) 13. 674 Final Report: Milingimbi Sea Closure (n 479) 13. Also see Talbot v Malogorski [2014] NTSC 54 [65]. 114 uninterrupted from a time prior to European colonisation.675 This meant that the way Aboriginal tradition was explored in the sea closure hearings related to both the historical context of tradition and how it was interpreted in the contemporary sense. There was no need to strictly prove how they related.
Further, the way that Aboriginal tradition was investigated in relation to land claims in the ALRA was predominantly through ascertaining the ‘traditional Aboriginal owners’.676 Whereas, the sea closure inquiries did not require the Commissioner to determine the Traditional Owners because it was assumed that this had already taken place through the adjoining land claim.677 This led to a much more focused inquiry in relation to ‘Aboriginal tradition’ as it related to sea country, and even more focused on how it related to strangers.
One overarching impact that the term ‘tradition’ did have, in the context of the two sea closure hearings, was that it created a distinction between fishing for subsistence (deemed traditional) and commercial fishing. This became relevant to the second s 12(3) AL Act criterion of whether the use of the seas by strangers was interfering with the ‘use of those seas in accordance with Aboriginal tradition’.678 Justice Toohey clarified that interference by strangers with any Indigenous community’s potential commercial fishing operation would not be interference with the ‘use of the seas in accordance with Aboriginal tradition’.679 In this context, any potential detrimental impact on Indigenous economic opportunities was not formally going to be considered in the inquiry (as opposed to any detriment to settler-state commercial interests that was an important part of the inquiry).680 However, as will be seen in Part C of this chapter, in the context of the first sea closure hearing, evidence was presented about two related issues: how contemporary interpretations of Indigenous laws provided for forms of commercial fishing that were perhaps not recognised by the settler-state; and the
675 Talbot v Malogorski (n 674) [65]. 676 Traditional Aboriginal ownership was the ‘centrepiece’ of the ALRA and placed ‘paramount importance on the spiritual relationships of local descent groups’: Editors, ‘Building on Land Rights for the Next Generation: Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976 – Digest’ (1999) 4(1) Australian Indigenous Law Reporter 136, 145. 677 Final Report: Milingimbi Sea Closure (n 479) 8. However, Toohey J did note that some consideration of who the Traditional Owners were might be necessary ‘as incidental to questions such as interference by strangers with the use of adjoining Aboriginal lands by traditional owners’. 678 AL Act (n 31) s 12(3)(b). 679 Final Report: Milingimbi Sea Closure (n 479) 15. 680 Jon Altman et al, Existing and Potential Mechanisms for Indigenous Involvement in Coastal Zone Resource Management (Report Commissioned by Coastal Zone Inquiry, 1993) 72. 115 legal and practical difficulties for Aboriginal people of engaging in commercial fishing that was regulated by the settler-state.
The third s 12(3) AL Act criterion was focused on using sea as a buffer to protect land in the context of whether ‘use of seas by strangers’ could interfere with ‘use of the adjoining Aboriginal lands by the traditional Aboriginal owners’.681 In the first sea closure hearing, the evidence around this criterion was focused on the impact of commercial fishers either coming ashore (and the related question of what was ‘ashore’ - what was land and what was sea - the question, in a sense, that was eventually asked in the Blue Mud Bay Case) or fishing/mooring very close in and disturbing communities. This criterion also again emphasised the dual concern with use of sea country as a buffer zone to protect Aboriginal land. Whilst these ancillary concerns about protecting land were sometimes described in the previous chapter as having a narrowing impact (the focus turned only to the impact on land), this criterion seemed to broaden the scope of an application for a sea closure as the Commissioner’s inquiry could include consideration of interference with either seas or land.
The use of the term ‘strangers’, and the notion of them being restricted from seas or interfering with sea or land in these first three criteria was powerful given the legislative context. It strongly suggested that those strangers did not belong. Whereas, Aboriginal people did belong and had laws that entitled them to enter and use the seas, and to prevent others from entering certain areas of sea. The term ‘strangers’ was not given a technical definition in the legislation. It was at this stage, as was evidenced in the discussion in Chapters III682 and IV,683 a familiar anthropological term. Unlike the associated term ‘permission’, ‘strangers’ did not morph from an anthropological term into a legal term that would be debated.684 It was consistently stated that strangers ‘carried its original significance of someone who does not belong to a place or someone unknown to those who live in a place’.685 In some respects, these descriptions seemed to gloss over the reason why the concept of strangers was relevant to Indigenous communities; that there was a responsibility to introduce people to country, and sea country, so they would be safe.686 This did not impact the first sea closure inquiry because Toohey J took a more liberal approach to permission than Blackburn J in the Gove Land
681 AL Act (n 31) s 12(3)(c). 682 See discussion at: Chapter III, Part C, Section 3. 683 See discussion at: Chapter IV, Part B, Section 1. 684 See discussion at: Chapter IV, Part B, Section 1(c). 685 Final Report: Milingimbi Sea Closure (n 479) 14 and Final Report: Castlereagh Bay Sea Closure (n 669) 4. 686 See discussion at: Chapter III, Part C, Section 3. 116
Rights Case.687 However, these issues are important to keep in mind for Chapter VI,688 where permission is again viewed within the doctrinal legal context of the first sea country native title claim.
(b) Identifying Disadvantage that would be Caused by a Sea Closure
The Commissioner was also required to consider whether any person would be disadvantaged by a sea closure and to, more broadly, identify the commercial, environmental and recreational interests of the public in the area.689 Considering disadvantage was not novel in this context as the ALRA required the Commissioner, in respect of land claims, to comment on ‘the detriment to persons or communities’.690 In one respect, this consideration of other interests might lead to additional limitations on the sea closure declaration, but in another respect it performed a role in broadening the discussion in a way that had not been seen before. This is one of the few examples in the episodes where the co-existence and relationships between Indigenous, commercial, recreational and environmental interests were explored together. It presented a unique opportunity to expand the discussion about sea country law and governance. However, this opportunity was restricted by the types of submissions that were presented.
In both the sea closure inquiries, the Commissioners did not find any adverse environmental consequences.691 It is useful to foreshadow here an argument that was later raised by the settler-state: that the settler-state was the key body overseeing marine environmental governance and that forms of control over particular areas by Aboriginal people could have a detrimental effect on responsible management of the whole marine space.692 Yet, at the time of the sea closure applications, it was not apparent that such strategic marine governance planning was happening within the settler-state context. Further, given the limited control
687 Final Report: Milingimbi Sea Closure (n 479) 14. 688 Particularly at: Chapter VI, Part C, Section 2. 689 AL Act (n 31) s 12(3)(d)-(e). There was also a catch all provision of ‘such other matters’ as the Commissioner considers relevant: s 12(3)(f). 690 ALRA (n 6) s 50(3)(b). One issue that will be discussed in Chapter VIII, Part D, Section 3(b) is that, prior to the final determination of the Blue Mud Bay Case, potential detriment relating to the intertidal zone (and the beds and banks of rivers) was already being discussed in the Commissioner’s land claim reports as early as 1981. 691 In fact, both commented that the environment was likely to be improved through Aboriginal control over entry: Final Report: Milingimbi Sea Closure (n 479) 21 and Final Report: Castlereagh Bay Sea Closure (n 669) 11. This assertion needs to be viewed in the context of the concerns raised at Chapter II, Part D, Section 1(b). 692 See discussion at: Chapter VIII, Part D, Section 3(b). 117 over entry that sea closures provided to Traditional Owners, Aboriginal people (and others within sea closures) were still subject to settler-state laws including fisheries legislation.693 Therefore, from the settler-state perspective, there was no need to engage in a broader discussion about Indigenous involvement in sea country environmental governance.
Neither of the Commissioners had evidence before them of any disadvantage to recreational fishers. The only evidence given about recreational fishing in both hearings was by the ‘small number of Europeans living in the communities’ who noted that they sought and received permission from Traditional Owners already.694 Therefore, they did not submit that they would be disadvantaged.695 This was an example of the permission principle in action. As will be seen in Part C of this chapter, this also represents the way in which the Yolngu community expressed their claim to control in the first sea closure application hearing. They did not seek to exclude people on a blanket scale, but they did want to regulate who entered and for what purpose.
The disadvantage that commercial fishers might face was discussed at length in Justice Toohey’s first sea closure report.696 The opposite was true of the second report but there were arguably two reasons for this. The first was that Toohey J’s report determined what disadvantage meant in the context of the AL Act. One of the legal issues involved in determining who was disadvantaged was whether the exemption relating to commercial fishing licence holders continued to apply when licences were renewed each year or whether, at the end of the licence period, the licence was no longer deemed current for the purposes of the exemption. Justice Toohey determined that a renewed licence would still be exempt from the sea closure.697 This issue will be analysed in the next section as it had a significant impact on how the legislation prioritised the interests of commercial fishers over Indigenous peoples.
The second reason was that, despite advertising the second sea closure application, ‘there was no evidence from any persons… [nor submissions]…claiming they would be
693 Ganter (n 34) 200. 694 Final Report: Milingimbi Sea Closure (n 479) 21 and Final Report: Castlereagh Bay Sea Closure (n 669) 11. 695 Ibid. Justice Toohey noted that he did receive a submission on behalf of ‘amateur anglers’, but it related to a different area. Given that no submissions were made in the hearing, Toohey J stated that he must ‘take it that this group, substantial in number, does not envisage any disadvantage from closure of the area under consideration’. Given the opposition of recreational fishers that will be seen in Chapter VIII, it does seem surprising that there was not more engagement with these issues in the first or second sea closure application. 696 Final Report: Milingimbi Sea Closure (n 479) 16-20. 697 Ibid 19. 118 disadvantaged’.698 Although there was documentary evidence that the actual amount of commercial fishing in the area of that second sea closure was ‘very small’,699 it appears that the reason so much evidence was led by the commercial fishing industry about disadvantage in the first sea closure hearing was because they were ‘testing the waters’. Perhaps once Toohey J had confirmed that any impact to the commercial fishing industry was minimal, because renewed licences would also be exempt from the closure, there was no need in the second sea closure hearing to present such evidence. This also gives a sense of one reason why further sea closure applications were not pursued by Aboriginal people; commercial fishing could continue almost unaffected in a sea closure.
Commercial fishers who held licences at the time a sea closure was declared were just one class of persons who were exempted from sea closures. Further, determining potential disadvantage needed to take account of the fact that sea closures were not absolute. The main element of control that Aboriginal people had was that they themselves could grant or deny a permit for entry into sea closures.
2. Who Could Enter a Sea Closure Once Declared?
The AL Act provided an overarching offence provision that a person ‘shall not enter onto or remain on closed seas unless he has been issued with a permit to do so’.700 Permits to enter sea closures were to be granted by the relevant Aboriginal Land Council or by the Traditional Owners.701 Therefore, the power to give or deny permission was vested in Aboriginal people. This was recognition, through settler-state legislation, of the notion of permission. However, there were a range of classes of people that were exempted from requiring a permit. As noted above, the most significant of these exemptions related to commercial fishers who held licences at the time a sea closure was declared. This section will first discuss the non- commercial fishing exemptions (the ‘general exemptions’) and will then move to focus on the commercial fishing exemptions. The totality of these exemptions severely curtailed the ability of Traditional Owners to actually control entry over seas. More broadly, these blanket
698 Final Report: Castlereagh Bay Sea Closure (n 669) 8. 699 Ibid. 700 AL Act (n 31) s 14. There was also a defence provision (s 19) that was mirrored in relation to Aboriginal land (s 9). For the person to prove the defence they had to show that they were on seas due to a reason that was beyond their control, that it would not have been practical to apply for a permit and that they removed themselves as soon as practicable from the area. 701 Ibid s 15. 119 exemptions potentially had a dampening effect on informal permission and notice practices that were already occurring.
(a) General Exemptions
There were general exemptions for transit and for entry of certain government and parliamentary personnel. Section 20 provided an exemption for ‘bona fide’ transit of a ‘vessel through seas which are otherwise open to that vessel’. In effect, this was the provision that was inserted to protect the international right of free passage as referenced by Bob Ellicott.702 Although this might appear to be a pragmatic provision from the settler-state perspective, it undermines the sea closure significantly. Any vessel, at any time, as many times as they wish, and in any part of the sea closure, could transit through. Conversely, as will be discussed in the next section, even though licensed commercial fishers were exempted, they were required to give notice to Traditional Owners. Such notice provisions, at least, gave Traditional Owners the ability to know who was in their sea closure (and perhaps would have made it easier to identify transgressors).
The other general exemptions related to parliamentary, executive and government personnel, as well as candidates for NT and Commonwealth elections.703 These were mirror images of the provisions that related to entry on Aboriginal land.704 However, one particular issue arose in the context of sea closures. Aside from members of either House of the Commonwealth Parliament, the other exclusions in the AL Act seemed to be limited to NT Government personnel. By contrast, the ALRA had an overarching provision that provided for a defence, in relation to entry on Aboriginal land, to persons performing functions or exercising powers under a law of the Commonwealth or as a Commonwealth officer.705
In the context of the first sea closure application, this led the Commonwealth Government to make a submission that a declaration of a sea closure should be ‘incapable of effecting the performance of the duties ... in relation to the seas’ of Commonwealth personnel.706 This was not posed as an issue for legal argument, but as an assertion. Justice Toohey stated that nothing in the AL Act maintains the right of Commonwealth officers to pass across closed
702 See discussion at: Chapter IV, Part D, Section 3(c). 703 Ibid ss 16-17. Section 16 operates such that the Minister can grant permits in certain circumstances. Whereas, section 17 operates as a blanket exemption for listed personnel. 704 Ibid ss 6-7. 705 ALRA (n 6) s 70(e)-(f). 706 Final Report: Milingimbi Sea Closure (n 479) 31. 120 seas.707 Although the Commonwealth maintained the strength of their submission, they reached out to the NLC. The Commonwealth stated in a subsequent letter to Toohey J that the NLC had agreed that any proposed closure would not apply to:
All members, officers and employees of the Australian and Northern Territory Governments, the Defence Forces and any statutory body or other instrumentality of the Crown of either Australian or Northern Territory Governments…acting pursuant to their duties or authorisations.708
It seems that the Commonwealth did not want to close the class that this agreement would apply to. Instead, they gave examples such as the Department of Defence personnel involved in reconnaissance, surveillance and law enforcement, and the Australian Coastal Surveillance Organisation personnel concerned with enforcement of civil aspects of the fisheries, quarantine, customs and migration legislation.709
This was a strong and broad assertion by the Commonwealth that the sea closure should not have any impact on their governmental authority. The discussions behind this agreement were not publicly recorded. It is not possible to discern whether the NLC was able to actively engage with the Commonwealth’s submission by, for example, suggesting that notice could be given to Traditional Owners when Commonwealth officers were entering a sea closure. However, one of the Yolngu witnesses stated during the first hearing: ‘For Aboriginal people [the Navy] is not a worry because they are all looking after everybody’.710 Further, the witness noted that although the Navy would be automatically granted permission by Yolngu people, they do ‘let the [Land] council and the community know of their arrival’.711 This latter interaction, between the Yolngu community and the Navy, appeared to evidence some form of acknowledgement by the settler-state of the Yolngu relationship to sea country.
This is an example of a more nuanced discussion about Aboriginal perspectives on control over the seas and the ‘informal’, from a settler-state perspective, forms of permission seeking and notice that already existed prior to the AL Act. In effect, the NLC’s agreement provided
707 Ibid 23. Given the lack of argument, Toohey J did not determine the matter, but he noted that presumably the argument of the Commonwealth depends upon the ‘pre-eminence of any relevant Commonwealth legislation’. 708 Ibid 31. 709 Ibid 32. 710 Transcript of Proceedings, Closure of Seas: Milingimbi, Crocodile Island and Glyde River Area (Aboriginal Land Commissioner, Toohey J, 22 June 1981) 197 (J Memawuy) (‘Milingimbi Sea Closure Hearing Transcript’). 711 Ibid. 121 confirmation of an informal process that already existed. However, such confirmation could lead to a breakdown of the informal interactions that had been occurring like the Navy informing the community of their arrival.
There is a certain circularity to this. The informal processes could not have been enforced through settler-state law and, therefore, could have been ignored by, for example, the Navy. However, the blanket exemptions provided reinforcement that such informal interactions were not required by those who were exempt. The potential for the breakdown of such informal processes meant that the sea closure could lead to Aboriginal people having less interactions with people who were entering their sea country. In this respect, the sea closure restricted the ability for Indigenous peoples to attempt to encourage non-Indigenous people to engage with Indigenous laws relating to permission, even in the more limited sense of notice, by providing overarching legislative exemptions. This also played out in relation to commercial fishing. Prior to the sea closure, there were some negotiations between Yolngu people and commercial fishers.712 However, the exemptions had the potential to lessen the need, from the perspective of the commercial fishers, to engage with Traditional Owners.
(b) Commercial Fishing Exemptions
The most significant exemption was that persons who held current fishing licences could enter a sea closure.713 As will be seen in Part C of this chapter, it was the problems and associated conflicts with commercial fishers that led the community at Milingimbi to apply for the first sea closure. However, the reality was that the closure would have limited impact on the commercial fishers. This was also the exemption that demonstrated the clearest choice in the legislation to prioritise non-Indigenous use rights and settler-state sanctioned economic exploitation. As noted above, the legislation included a provision that required commercial fishers to notify the relevant Land Council before they entered the sea closure.714 Although it was only notice, and not seeking permission, this provision gave recognition of Aboriginal people as having oversight of the area and maintaining their ability to know who is in their sea closure. It is important to emphasise that a commercial fisher who fell outside the exemptions could still apply for a permit from the Land Council; the sea closure was not absolute.
712 See discussion at: Part C of this chapter. 713 AL Act (n 31) s 18. 714 Ibid s 18(2). Commercial fishers argued that this requirement was ‘impractical’: Ganter (n 34) 202. 122
The original provision in the Aboriginal Land Bill provided a two-step test to determine if a commercial fisher could continue to fish in a sea closure: first, the fisher had to be the holder of a licence issued under the Fisheries Ordinance 1965 (NT); and second, they had to establish that prior to that sea closure they had ‘carried out fishing operations for a reasonable period of time within the area of closed seas’, and that their ‘livelihood may be placed at risk by the closure of those seas’.715 If these conditions were met, then the Administrator could grant a permit to allow the fisher to enter and fish in the closed seas.716 The legislation as passed modified the test to only require that the fisher hold a pre-existing fishing licence.717 Commercial fishers were not required to prove that they had fished within the area of that particular sea closure, or that their livelihood would be placed at risk. This was a stark legislative choice that symbolised a shift away from seeking to prevent disadvantage to only those who had previously fished in an area, to a much wider prioritisation of non-Indigenous commercial fishing interests. Further, the exemptions for commercial fishers were described in the legislation as ‘protecting existing rights’.718 This harks back to the debate in the Hansard in relation to the NT Aboriginal Lands Bill about ‘preserving’ the status quo of open access for non-Indigenous people.719
As mentioned in the previous section, one issue that was not clear was how these provisions operated with renewal of fishing licences. Justice Toohey noted that the wording of s 18 AL Act was ‘deceptively simple’.720 Section 18 provided that the holder of a fisheries licence that was issued ‘prior to the publication’ of the sea closure declaration ‘may enter and fish the area of the closed seas’. Under the then Fish and Fisheries Act 1979, licences were valid until 31 December of each year and then required renewal.721 The renewal provisions were such that the ‘Chief Inspector [of Fisheries] may renew a licence’ (emphasis added).722 They did not require, for example, automatic renewal if all conditions were met. It was not clear how s 18 related to the renewal of licences; would a renewed licence still be treated as the same licence that was issued prior to the sea closure declaration?723 If s 18 did not apply to
715 Aboriginal Land Bill 1978 (NT) cl 18. This Bill is not available on the NT Legislation website, but can be located at: Northern Territory Legislative Assembly, Bills introduced: 28 February to 9 March 1978, Serial 31. 716 Aboriginal Land Bill 1978 (n 715) cl 18. 717 AL Act (n 31) s 18. 718 Ibid. 719 See discussion at: Chapter IV, Part D, Section 3(a). 720 Final Report: Milingimbi Sea Closure (n 479) 18. 721 Fisheries Ordinance 1965 (NT) ss 15, 15B. 722 Ibid s 15B. 723 Final Report: Milingimbi Sea Closure (n 479) 18. 123 renewals, the section would not have had a long term impact as all licences would expire on 31 December of any relevant year.
In their submissions for the first sea closure hearing, predictably, the NLC argued that all licences did come to an end on 31 December, while the commercial fishers argued that a current licence should include renewals.724 Justice Toohey noted that there was an irony in both these arguments. If the former was the case, then there would be significant disadvantage to fishers that might impact on whether a sea closure would be declared. Whereas, if the latter, there would be no immediate disadvantage to fishers holding licences. There was one important difference between the way these licence requirements were interpreted and the concept of disadvantage. Disadvantage was part of a discretionary weighing up exercise, as opposed to the licence requirements that were a blanket exemption. Justice Toohey determined, on the basis of both legislative intention (to which he stated there ‘may not be much doubt’) and statutory interpretation of the fisheries legislation, that renewals were included.725 However, if the licence was transferred, that was not a licence granted prior to the sea closure.726
It appears there was some confusion about how the transfer rule operated in practice. As noted by Ron Levy, a barrister who was legal counsel for the NLC from 1994 to 2014: ‘the way fishing licences work is that they are immortal because they get owned by company X and company X sells the licence to company Y, company Y does not apply for a licence, they just buy an existing licence which pre-dates … ie licensees can trace their interest to a grant prior to the closure’.727 Levy noted that there potentially was a legal issue to be pressed here, but that if it had been, the NT legislature would have likely just amended the legislation. This, in the words of Levy, created the potential for an ‘immortal’ exemption for commercial fishers from a sea closure.728 Such an exemption is in line with the way in which the legislation prioritised non-Indigenous commercial fishing.
As foreshadowed above, these exemptions also functioned to potentially disincentivise commercial fishers from responding to Indigenous concerns. For example, some of the major issues for Indigenous communities were things like fishers putting nets up across rivers that
724 Ibid. 725 Ibid 19. 726 Ibid. 727 Interview with Ron Levy, barrister (Lauren Butterly, Darwin, 27 November 2015). 728 Also see: Smyth, A Voice in All Places (n 406) 167. 124 blocked access to certain places, leaving broken nets, throwing away large amounts of fish (which as well as being a waste,729 also had the potential to attract sharks), taking particular fish in the ‘wrong’ season meaning that they would not get the chance to ‘breed up’, and catching animals that were totems which resulted in making ‘some of the older people’ sick in the community.730 These issues did not relate to ‘illegal’ (in the settler-state context) fishing,731 but instead related to a mixture of Aboriginal laws and the practical reality of co- existing. These issues required negotiation of sorts to be resolved. However, the exemption meant that commercial fishers did not have to engage with the communities. In effect, the commercial fishing exemptions entrenched the problems, and conflicts, that Indigenous communities had with commercial fishers and limited the ‘capacity of the commercial fishing industry to respond to Aboriginal concerns’.732 Elizabeth Ganter noted that the ‘image of responsible [commercial] fishermen suffer[ed] from the carelessness of a few’.733 It seems she was suggesting that some commercial fishers would be content to negotiate with Indigenous communities, but that the exemption also gave those ‘careless’ fishers an excuse not to engage.
From the perspective of the Aboriginal applicants for a sea closure, the exemptions described in this section had to be weighed alongside what proved to be a very involved, and expensive, application process. As discussed in Chapter IV,734 this was a risk foreshadowed by the NLC in their submissions to the Committee. They had submitted that if the option of requiring Aboriginal people to apply for a sea closure was chosen, the application process had to be ‘responsive, simple and able to evaluate the evidence’.735 Justice Toohey attempted to make the first application process as simple and responsive as possible, but given the legislative framework and the novelty of the matters, it still involved nine days of hearings and the associated preparation prior to the hearing. This application process, and the limited control
729 Smyth noted that the commercial fishing practice of taking target fish and discarding parts of the fish (such as head, tail and backbone) was ‘regarded as an appalling waste of the resource, as an offence to the traditional owners of the resource, and disrespectful of the resource itself): Ibid 62. 730 Milingimbi Sea Closure Hearing Transcript (n 710) (22 June 1981) 200-210 (J Memawuy, J Mawunydjil, J Munyarirr, T Binalany, D Marpiyawuy, M Gaykamanu, A Djupandawuy, P Dhakuwarr and R Gatikatiwuy). Also see: (23 June 1981) 248-249 (R Stigson) (referring to a statement of R Gatikatiwuy). 731 This will be further discussed in Part C of this Chapter. 732 Ganter (n 34) 202. 733 Ibid. There was some evidence at the first sea closure hearing that there were particular commercial fishers who had a reputation for not doing the right thing (and had, in the words of one witness, been ‘more or less disowned’ by the professional association): Milingimbi Sea Closure Hearing Transcript (n 710) (21 October 1980) 154 (R Stigson). 734 See discussion at: Chapter IV, Part D, Section 3(a). 735 NLC, Submission to Joint Select Committee (n 570) 19. 125 that Aboriginal people in fact had if they were successful, meant that only two sea closures were ever pursued to declaration.
3. Practical Application of Sea Closures
There were nine applications for sea closures (from 1979 until the present), with two areas being declared closed (highlighted in grey below).736
Applicant Area Lodgement details
Tiwi Land Council Bathurst and Melville Application lodged: 15 Islands737 November 1979.
NLC Milingimbi, Crocodile Application lodged: 30 Island and Glyde River November 1979. Inquiry held. Aboriginal Land Commissioner Report submitted: 28 August 1981. Seas closed: 20 July 1983.
North Australian Howard Island/ Application lodged: 14 Aboriginal Legal Aid Castlereagh Bay December 1981. Inquiry held. Service Aboriginal Land Commissioner Report submitted: 1 July 1988. Seas closed: 13 September 1989.738
736 Office of the Aboriginal Land Commissioner, Annual Report: Report for the Year ended 30 June 2005 (n 33) 42 and Bergin (n 33) 177. The two declared sea closures were contiguous and located off the coast of north-east Arnhem Land. 737 Initial procedural hearings were held for this matter (in conjunction with the Milingimbi application) but, as will be discussed below, the Tiwi claim did not go on to be heard as a sea closure application: Belinda Lawson, Aboriginal Fishing and Ownership of the Sea (Fisheries Division, Dept of Primary Industries, 1984) 13. 738 Justice Kearney noted that his report had been much delayed, but no explanation was provided for this: Final Report: Castlereagh Bay Sea Closure (n 669) 1-2. 126
NLC Croker Island739 Application lodged: 27 May 1983.
NLC North Groote740 Application lodged: 7 December 1983.
NLC Groote Eylandt Application lodged: 30 Winchelsea Bartalumba November 1984.
NLC Daly River South Application lodged: 10 Fitzmaurice River December 1992. incorporating Dorcherty Island
NLC Walker River South Roper Application lodged: 10 River incorporating December 1992. Woodah, Sandy and Maria Islands
NLC Finniss River/Wagait area Application lodged: 10 incorporating Peron Island December 1992. North and Peron Island South
Most of the information in this table was compiled from the 2005 Annual Report of the Aboriginal Land Commissioner.741 Up until 2005, all sea closure applications and their application status were listed in each annual report. From 2006 onwards, this information was no longer included in the annual reports because ‘there has been no change in the information provided’.742 Further, it was submitted that ‘[t]o a large extent the original [sea closure]
739 This sea closure application will be discussed in the context of the history of the Yarmirr FC (n 36) native title claim at Chapter VI, Part D, Section 2(a). 740 Bergin noted that this matter was particularly interesting as it was the first sea closure where a ‘considerable amount of evidence had been assembled that purported to demonstrate serious economic detriment to [non- Indigenous] users’: Bergin (n 33) 180-182. 741 Office of the Aboriginal Land Commissioner, Annual Report: Report for the Year Ended 30 June 2005 (n 33). 742 Ibid 7. 127 applications have been subsumed by applications under the Land Rights Act [ALRA] and native title claims’ (emphasis added).743 The word ‘subsumed’ takes the focus away from the potential shortcomings of the mechanism of sea closures from the perspective of Aboriginal people, and instead puts the focus on Traditional Owners (or Land Councils) positively choosing to pursue other options, such as recognition of native title. As an example, the Croker Island sea closure application identified above was not pursued, but the native title claim of Yarmirr FC was lodged.744 At a conference on Indigenous rights to the sea in 1993 (post-Mabo), that concentrated on the potential for native title to be recognised in the sea, politicians from both the NT Government and NT Opposition, and a representative of the NLC, clearly stated that sea closures had not been effective and needed to be reconsidered.745
The first sea closure application lodged (Bathurst and Melville Islands) was not pursued because the Traditional Owners (represented by the Tiwi Land Council (‘TLC’)) decided that they would negotiate arrangements with fishers.746 The Tiwi community were content for the seas to remain open to all except for certain areas of spiritual and economic significance; ‘There were arrangements worked out whereby commercial fishermen agreed to sign an agreement that permitted access to seas other than rivers, streams and estuaries and to avoid a number of sacred sites’.747 As noted by Anthony Bergin: ‘The Tiwis … feel an acceptable accommodation has been reached and that the legal fees involved in any closure application would be prohibitive’.748 From the Indigenous perspective, it appears sea closures were not being pursued because they were not ‘worth it’ for the limited amount of control over the sea that would be gained. These forms of negotiations also enabled more nuanced discussions about the relationship between fishers and Indigenous communities.
However, Bergin did note, with respect to the Tiwi negotiations, that agreement was harder to reach in relation to recreational fishers.749 It is significant that the commercial fishers were
743 Ibid. 744 Yarmirr FC (n 36) 580 [105] and Office of the Aboriginal Land Commissioner, Annual Report: Report for the Year Ended 30 June 2005 (n 33) 42. Also see: (n 739). 745 Steve Hatton, ‘Peoples and Sea Rights’ in Turning the Tide: Papers presented at conference on Indigenous Peoples and Sea Rights (Northern Territory University, 1993) 1, 2; Wes Lanhpuy, ‘Marine Management for 40,000 Years: A Yolngu View of Sea Rights’ in Turning the Tide: Papers presented at conference on Indigenous Peoples and Sea Rights (Northern Territory University, 1993) 4, 5; David Allen, ‘Some Shadow of the Rights Known to our Law’ in Turning the Tide: Papers presented at conference on Indigenous Peoples and Sea Rights (Northern Territory University, 1993) 53, 57. 746 Bergin (n 33) 179-180. Also see: Davis, ‘Aboriginal Sea Rights in Northern Australia’ (n 207) 18. 747 Bergin (n 33) 180. 748 Ibid. 749 Ibid. Bergin noted that after the arrangements were finalised, there were no difficulties with commercial fishers, but there were continuing difficulties with recreational fishers. 128 willing to commit to the arrangements even though, if they were currently licensed, they would have been given exemptions if a sea closure had been declared. Whereas, the recreational fishers were not, even though a sea closure would have required them to apply for permits. The particular relationship between recreational fishers and the public right to fish, especially in the context of the notion of ‘territorialism’ discussed in Chapter IV,750 created a certain power dynamic. As will be explored further in the context of the Blue Mud Bay negotiations,751 recreational fishers were the focus of NT Government appeasement efforts. Given this dynamic, it is almost an anomaly that the sea closure framework did not protect recreational fishers through exemptions. The two sea closures declared were not in areas of high recreational fishing. The only relevant recreational fishing was non-Indigenous people living in those communities. It would seem likely that if a sea closure had been pursued in a high recreational fishing area that this could have been a determining factor in whether, and to what extent, it was declared. This emphasises again that the NT Executive had the power to make that final decision after receiving information about disadvantage.
Several academics in fields such as politics and anthropology and government officials have critiqued both the application process and effectiveness of sea closures.752 Their overall critique was that the process to apply for a sea closure was ‘long and costly’ and that Aboriginal people got very little in return.753 In 1985, after the first sea closure application process, anthropologist Stephen Davis stated that most applications, if they proceed in the same manner, ‘could be expected to cost between half and one million dollars each’.754 Yet, Davis noted that: ‘The “successful” Milingimbi and Glyde River Sea Closure Application resulted in little change for the protection of marine areas for the Aboriginal applicants’.755 Commercial fishing could continue and government personnel were exempted, therefore, the main potential restrictions would be on tourist boats, recreational fishers and future applicants for commercial fishing licences.756 The sea closure framework would allow Aboriginal people to control entry to this latter class through the permit system.
750 See discussion at: Chapter IV, Part D, Section 3(b). 751 See discussion at: Chapter VIII, Part C, Section 1(c). 752 Ganter (n 34); Bergin (n 33); Davis, ‘Aboriginal Sea Rights in Northern Australia’ (n 207); Stephen Davis, ‘Indigenous Maritime Claims on the North Australian Coast’ (1989) (1) Marine Policy Reports 135, 146-149; and Keen (n 207) 427-430. 753 Ganter (n 34) 200. Also see: Bergin (n 33) 182 and Davis (n 207) 17. 754 Davis (n 207) 17. 755 Ibid. 756 Ibid and Bergin (n 33) 173. 129
As foreshadowed in the previous chapter,757 problems with enforcement of sea closures once declared were also identified.758 The legislation did not provide for any specific forms of enforcement. On a practical level, the areas in which Aboriginal people made applications for sea closures were generally remote. There was minimal presence of settler-state enforcement mechanisms, such as police, and the legislation did not give Indigenous peoples any powers to enforce their sea closures. The challenges of enforcement were raised directly by potential settler-state enforcers - the NT Police - in the first sea closure hearing, and will be discussed in Part C of this chapter.
There was also a much simpler issue with enforcement. It was hard to identify the parameters of the low water mark, where the Aboriginal land grant ended and the sea closure began, and the two kilometre outer limit.759 There was considerable discussion of the meaning of ‘low water mark’ in the two sea closure inquiry reports.760 Although Justice Kearney went on to define the low water mark as that measured by the ‘median of the ordinary spring and neap low tides’, this then had to be plotted onto the gazetted map.761 Bergin argued that the gazetted map was ‘not at all helpful’ and that the written description could have been drawn in several ways.762 He concluded that ‘for practical purposes of policing there [was] effectively no sea closure line’.763 This further undermined any attempts at enforcement.764
There was, however, a comparable ‘success story’ in relation to enforcement. It was noted that the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) had led to prosecutions of
757 See discussion at: Chapter IV, Part D, Section 3. 758 Davis (n 207) 17; Ganter (n 34) 201; Bergin (n 33) 183. Bergin noted that the problems with enforcement were also ‘a factor’ in why the TLC decided to negotiate instead of going through with the sea closure application. 759 Ganter (n 34) 201. Also see: Smyth, A Voice in All Places (n 406) 169. It is ‘not easy’ to measure and map low-tide elevations over large marine areas: Stephen Sparkes, ‘Below Low Water: Marine Boundaries and Native Title – A Brief Overview’ in Gary Meyers (ed), In the Wake of Wik: Old dilemmas; New Directions in Native Title Law (Selected 1997 Discussion Papers of the National Native Title Tribunal, 1999) 266, 268-269. However, Sparkes concludes that: ‘Many fuzzy boundaries are used to describe the extent of offshore areas. While they are practically difficult to work with, for the most part, they are acceptable legally and are used regularly in statutory instruments to describe such areas’: at 279. 760 Justice Toohey noted that the parties submitted that he did not need to make a final decision. Therefore, His Honour did not define the term: Final Report: Milingimbi Sea Closure (n 479) 10-12. Justice Kearney also noted that the parties had argued that the term should not be defined but his Honour stated that the ‘ordinary person is entitled to some reasonable guidance’: Final Report: Castlereagh Bay Sea Closure (n 669) 12 (also see at 11-15). 761 Final Report: Castlereagh Bay Sea Closure (n 669) 15. 762 Bergin (n 33) 184. 763 Ibid. 764 These technical issues about delimiting boundaries in the sea would continue to present challenges in relation to the Blue Mud Bay Case and will be discussed further at Chapter VIII, Part D, Section 3(b). 130 fishers who had infringed marine sacred sites.765 In fact, Ganter stated that a number of sacred sites have been registered in sea country that were ‘comparable in size with existing sea closure areas’.766 There were a couple of relevant differences compared to the enforcement of sea closures: first, there was a separate authority responsible for protection of sacred sites (the Aboriginal Areas Protection Authority (‘AAPA’)); second, that AAPA published specific co-ordinates for each marine sacred site (Bergin noted that the AAPA also worked with the Navy to put in marker buoys around certain sacred sites); and third, the AAPA would contact various vessels ‘to ask them to move on’ when they were near a sacred site.767 Both Bergin and Ganter made clear that there were still significant issues with enforcement of protection of marine sacred sites, but there was clearly targeted enforcement occurring.768 The appointment of a specific body, not just the NT Police as the generic settler- state enforcer, and the work that body did in engaging with non-Indigenous people, including by providing specific co-ordinates and contacting vessels, demonstrated that enforcement could happen in the marine area if the settler-state was committed to it. However, similarly to enforcement of sea closures, Aboriginal people were ‘not given formal authority to police any management arrangements’ in relation to marine sacred sites. Therefore, although it was
765 Bergin (n 33) 184-186 and Ganter (n 34) 203-204. The Northern Territory Aboriginal Sacred Sites Act 1989 (NT) has been used to protect sacred sites in sea country. In particular, protection has been requested ‘to keep out fishermen (both commercial and recreational)’: PwC Indigenous Consulting, Sacred Sites Processes and Outcomes Review (Report for Department of the Chief Minister (NT), 26 April 2016) 51
Another issue that was consistently viewed as a problem with sea closures was the adversarial nature of the application process. There was a sense that the process brought on unnecessary divisiveness and caused significant stress to the senior members of the Aboriginal communities.770 However, the predominant concern of the NT Government in relation to the adversarial nature was the racial tensions between the Aboriginal communities and non- Indigenous people discussed in the previous chapter.771 Ganter summarised that instead of ‘occasioning reasoned debate, sea closures … [had] a divisive effect in the Northern Territory community’.772 In this context, the Honourable Mark Dreyfus QC (current Commonwealth Shadow Attorney-General), who was part of the NLC team during the first sea closure hearing, later reflected that there was: ‘Some hostility from the recreational fisher lobby … There was always some hostility in the non-Aboriginal community in Darwin to the land rights cause, to land rights generally, and this was just a bit more of it’.773 Bergin stated that the negative impact on ‘race relations’ of a proliferation of sea closures using the AL Act framework would have to be strongly considered in determining the way forward.774
Several people, including the NT Chief Minister in 1989, stated that negotiations would be a more ‘effective way of dealing with [Aboriginal] coastal management issues’ than the framework for sea closures.775 There was potentially a double meaning to such statements. For example, Bergin reflected that it would ‘not take much imagination to visualise the public outcry if it was seen that large areas of the Territory coast were subject to “closure”’.776 In a sense, even acknowledging the limitations of what control the sea closures actually provided to Aboriginal people, suggesting negotiations could have been a way to dilute what rights Indigenous peoples had been granted in the settler-state legislation.
769 Smyth, A Voice in All Places (n 406) 49. Smyth did note that Aboriginal people had a role in management strategies such as ‘positioning of anchored warning buoys’. 770 Davis (n 207) 17 and Bergin (n 33) 182-183 771 See discussion at Chapter IV, Part D, Section 3(b). 772 Ganter (n 34) 202. 773 Interview with Mark Dreyfus QC, a member of the NLC team during the first sea closure hearing (Lauren Butterly, Offices of the Honourable Mark Dreyfus QC, Mordialloc (Melbourne), 5 June 2017). 774 Bergin (n 33) 186. In this context, see the summary of the submissions from the Tiwi Islands sea closure application in: Keen (n 207) 428. 775 Ganter (n 34) 202. Also see, in relation to Tiwi Islands negotiations: Davis (n 207) 18. 776 Bergin (n 33) 187. 132
Bergin and Ganter’s work went one step further in their critique. They both noted that sea closures did not provide Aboriginal people with opportunities to be involved in strategic marine governance decision-making and planning.777 In this context, their work is unusual in that it sought to cross the legal rights/governance divide. Ganter noted that even on the most basic and local level, the sea closure did not allow Indigenous peoples to be involved in legal or governance discussions with the settler-state or non-Indigenous fishers about protecting their subsistence fishing practices.778 On a broader level, the sea closure framework did not provide Aboriginal people with opportunities to be involved in formal caring for sea country, fisheries management or for discussions on Aboriginal engagement in commercial fishing.779 The reason broader marine governance powers were important was because sea closures were not absolute. If sea closures were absolute then such additional provisions would not be so necessary given that there would be complete control.780 At the handover of the documents relating to the two sea closures, the NT Minister for Lands and Housing stated that the NT Government was ‘interested in a process of consultation with Aboriginal people on issues relating to marine planning’ such as coastal surveillance, fishing, sacred sites and to see if people are ‘interested in businesses such as fishing and tourism’.781 As will be seen in Chapter VI,782 the early 1990s did see some moves towards negotiated strategic planning, including in relation to co-managed marine parks, but these were only tentative and relatively small scale.783
After considering these critiques, it should be emphasised that sea closures played an important role in raising political and public awareness about Aboriginal rights to the sea and they provided a large amount of evidence and research about Indigenous relationships to sea country.784 Bergin noted that if negotiations were to be pursued in relation to Indigenous involvement in strategic marine governance, the information generated by sea closure applications would be invaluable.785 Ganter further noted that the existence of legislation that acknowledged ‘Aboriginal tradition as a source of entitlement in …sea’ provided a
777 Ibid 186-195 and Ganter (n 34) 200-202, 207-201. Also see: McIntosh (n 270) 19. 778 Ganter (n 34) 200-201. 779 Ibid 200; Bergin (n 33) 187-190. 780 Although, as will be further discussed in Chapters VIII, Part D and IX, Part C, Section 2, provision for funding and support does then play a role in actioning control. 781 Bergin (n 33) 193. 782 See discussion at: Chapter VI, Part B, Section 2. 783 For example: Ganter (n 34) 202; Bergin (n 33) 193; Ginytjirrang Mala (n 270); and McIntosh (n 270) 9. 784 Bergin (n 33) 186. 785 Ibid 190. 133 foundation for broader Aboriginal claims to control over sea country.786 In this context, an analysis of both the transcript and report of the first sea closure hearing provides insights into the ways in which the Yolngu community at Milingimbi articulated what control meant to them.
C. First Sea Closure Hearing: Milingimbi, Crocodile Island and Glyde River
Milingimbi is a Yolngu community in Arnhem Land. It is about 350 kilometres east of Darwin and is itself an island. The Crocodile Islands are a group of islands to the north-east, about 50 kilometres out to sea from Milingimbi. The Glyde River is to the south-east of Milingimbi on the mainland. This first sea closure application was, in many respects, an experiment for all the parties and the Commissioner. Including preliminary matters, the first sea closure hearing took place over nine days in 1980 and 1981.787 Two of these days were on country at Milingimbi. The rest of the hearing was conducted by the Commissioner in the NT Supreme Court building in Darwin. Justice Toohey stated in the introduction of his report that the ‘inquiry was carried out in a fairly informal way’.788 Submissions were presented by the NLC (on behalf of the Milingimbi community), the Commonwealth, the NT, the Australian Fishing Industry Council (‘AFIC’), the Amateur Anglers (representing recreational fishing), the NT Police and two individuals (including a non-Indigenous person who had worked in Milingimbi, Roger Stigson).
Justice Toohey was satisfied that, in accordance with Aboriginal tradition, strangers were restricted in their right to enter the seas.789 Further, Toohey J was satisfied that the operations of commercial fishers were causing interference with the use of the seas in accordance with Aboriginal tradition.790 With respect to the finding of causing interference, AFIC submitted that the only requirement of Aboriginal tradition, in relation to entry of seas, was seeking permission.791 There was an overtone to this submission that seeking permission was not a restriction of consequence. Justice Toohey interpreted this as an argument that permission
786 Ganter (n 34) 204. 787 Most of the hearing was transcribed, however, when the Commissioner went out on site visits, these visits were either not recorded, or recorded but not transcribed. This means there are some gaps in the written record (although some of what was presented on the site visits can be elucidated from the evidence later presented and from the report). 788 Final Report: Milingimbi Sea Closure (n 479) 7. 789 Ibid 13-15, 26. 790 Ibid 26. Also see: 15-16. 791 Ibid 14. 134 was ‘something of a formality’.792 In addressing this argument, Toohey J distinguished the evidence in this application from the observations of Blackburn J in the Gove Land Rights Case. Justice Toohey stated that ‘[w]hatever the evidence in that case, there was an emphasis in the present inquiry on the need to ask permission, even though that requirement may have been relaxed from time to time in the case of particular persons or classes of persons’.793 This echoes the anthropological work of Peterson794 and Williams795 and the approach of Justice Woodward in the Woodward Commission.796 Further, this indicates that from Toohey J’s perspective, outside of the exemptions of the sea closure framework, permission requirements did apply to non-Indigenous fishers. That particular issue became an important factual question in Yarmirr FC.797
After a long discussion about the potential disadvantage faced by commercial fishers,798 Toohey J determined that there was not considerable disadvantage to commercial fishers in declaring a sea closure over this area. Justice Toohey also made some poignant broader reflections on fisheries policy. His Honour noted that the policy of government was ‘in any event to preserve fishing resources through reduction of licences, restrictions on net lengths and seasonal closures’ and that, more generally, the ‘picture [was] one of ever increasing control and restriction upon commercial fishing’.799 This gave a sense that it was not unusual for commercial fishers to be restricted, and that, in fact, such restrictions would likely increase in the future. Justice Toohey’s comments were general in nature, but his Honour’s comments could broadly be read as suggesting that fishers should expect more restrictions, and that such restrictions could be made for a variety of reasons including prioritising Indigenous fishing interests.800
The hearing of the first sea closure application revealed issues that went beyond the restrictive legislative framework of sea closures, as well as some practical challenges of applying the legislation. This part is divided into four sections. The first section discusses the
792 Ibid. 793 Ibid. 794 See discussion at: Chapter III, Part C, Section 3. 795 See discussion at: Chapter IV, Part B, Section 1(a). 796 See discussion at: Chapter IV, Part C, Section 1). 797 See discussion at: Chapter VI, Part C, Section 2(b). 798 See discussion at: Part B of this chapter. 799 Final Report: Milingimbi Sea Closure (n 479) 20, 26. 800 The level of regulation of fishers will be further discussed in relation to Yarmirr HCA at Chapter VI, Part C, Section 3(b) and the Blue Mud Bay Case at Chapter VII, Part D, as part of determining the relevance of the public right to fish, and in the Blue Mud Bay negotiations in respect of closing certain areas to commercial fishers at Chapter VIII, Part D, Section 3. 135 claim to control that was made by the Yolngu community at Milingimbi. This claim was described more broadly than the legislation would have recognised and was connected to the pre-history of the sea closure application. The second section then explores evidence about the interactions between Yolngu people, commercial fishers and the settler-state. These interactions reveal Indigenous assertions of control at the interface of Aboriginal law and settler-state law. Following on from this, the third section discusses Aboriginal commercial fishing and the impact of the settler-state dichotomy between subsistence (traditional) and commercial fishing. This section suggests that such insistence necessitated support for Aboriginal people to engage in the settler-state version of commercial fishing. Finally, and relatedly, the fourth section considers the problems with settler-state enforcement capacity and the settler-state’s lack of engagement with suggestions of Indigenous participation in sea closure governance. These last two sections, in particular, demonstrate that while the legislation set out a form of compromise between assertions of sovereignty, the settler-state was not necessarily able to deliver that in practice.
1. The ‘Claim’ to Control and the Pre-History of the Sea Closure Application
The Practice Directions for the inquiry required the parties to make their pre-hearing written submissions at the same time.801 As a result, Counsel Assisting the Commissioner (‘Counsel Assisting’) had a role in identifying the issues that needed to be addressed at the hearing. On the first day of the substantive hearing, Counsel Assisting stated that having read the ‘claim book’802 it seemed that the Yolngu applicants were seeking:
closure so as to give themselves control but they would not, after the closure was made, prevent commercial fishing; rather, they would seek to regulate it in a way which they saw as being consistent with their own interests. What is proposed here is to give themselves some sort of bargaining power over the manner of the use of the seas in the areas very proximate to the places at which they live.803
801 There was a lack of guidance in the AL Act about how the Commissioner would undertake the inquiry. As a result, Toohey J issued Practice Directions for the application: Final Report: Milingimbi Sea Closure (n 479) 28. Also see the Reasons for Practice Directions: at 29. 802 It is evident from the transcript that there was a lot of discomfort around the term ‘claim book’ given the distinctions made around procedure compared to land claims: Milingimbi Sea Closure Hearing Transcript (n 710) (27 June 1980) 125 (M Maurice). 803 Ibid 126 (M Maurice). 136
This was an explanation of the type of control that the Yolngu people were claiming. Control was not about excluding all persons from the sea closure but about regulating who entered. In effect, it was about having decision-making authority to determine who entered the sea closure and for what purposes. The use of the term ‘bargaining power’ by Counsel Assisting also suggested that having such decision-making authority would enable Aboriginal communities to negotiate with non-Traditional Owners who sought to enter their sea closure. In this context, Mark Dreyfus QC later reflected:
they all had the same concerns, which was: ‘We don’t want commercial fishing boats coming here without asking us first’. As always, there was a preparedness to say yes, potentially at least, or negotiate some return for the taking of the resource. But, the suggestion that these boats were able to go there and just park and moor for a long period and take fish, without asking the Traditional Owners, was a deep concern.804
This sort of assertion of control went beyond what the sea closure framework could provide given the commercial fishing exemptions. In a sense, this represented the mismatch between what the AL Act offered, in terms of a compromise between assertions of sovereignty, and the type of compromise that the Yolngu people sought. Further, this articulation had a history, and was taken forward. The history will be addressed in the next paragraph and, going forward, this articulation of control will be seen in the discussion about the evidence in Yarmirr FC805 and in the Blue Mud Bay negotiations.806
The application for the sea closure was only pursued after the Milingimbi community had made requests over several years for ‘some form of control over the seas’.807 With respect to lodging the application, Yolngu witness Jacky Munyarrir stated: ‘What other way could we fight for our rights? We have fought and fought in the past six years, yet we don’t have any rights given by the government and you people. Is there any way we can control the sea?’808 Another Yolngu witness, John Weluk, noted that balanda and Yolngu people now ‘have this one government’, but that it is ‘hard when Yolngu are not hearing anything from the government and balanda are giving pressure to the government and they are getting something back’.809 This revealed a complex relationship between ‘government’ (including
804 Interview with Mark Dreyfus QC (n 773). 805 See discussion at: Chapter VI, Part C, Section 2(a). 806 See discussion at: Chapter VIII, Part D, Section 3(a). 807 Milingimbi Sea Closure Hearing Transcript (n 710) (18 February 1980) 32 (M Dreyfus). 808 Ibid (20 October 1980) 142 (J Munyarrir). 809 Ibid 143 (J Weluk). 137
NT Police and the NT Fisheries Department) and the Milingimbi community that was evident throughout the sea closure hearing. Reaching out to government bodies to negotiate control over sea country appeared to be both an assertion of Indigenous control and an acknowledgement of the co-existing power of settler-state governmental authority.
Prior to 1970, the Milingimbi community did not have ‘too many problems with balanda mob coming in and using this sea’, but commercial barramundi fishing licence numbers peaked in 1974.810 In 1978, the Indigenous community at Galiwinku, a Yolngu community on another island, about 100km from Milingimbi, organised a fishing conference and issued invitations.811 The conference was attended by members of the Yolngu communities, representatives from the NT Government, and the Commonwealth Departments of Aboriginal Affairs and Fisheries.812 Evidence was given during the inquiry that relevant commercial fishing representative bodies had declined the invitation to the 1978 conference.813 However, there was also evidence given of other ‘very positive’ meetings with the Commercial Fishermen’s Association.814 Part of the negotiations with commercial fishers included the Yolngu community proposing ‘reserved’ areas where no one – Yolngu people or balanda – could commercially fish.815 Richard Slack-Smith from NT Fisheries gave evidence that he attended a negotiation as an ‘observer-adviser’.816 He stated that the parties were attempting ‘to come to some agreement on certain areas … in the sea that the fishermen seemed to be relatively happy to avoid if they did not cut out all the fishing area’.817 From Slack-Smith’s perspective, if such an agreement had been made he ‘would be able to approach [his] department and the Minister and finally the Administrator in an attempt to implement the recommendations that would come out of such a meeting’.818 This was an acknowledgement by a government official that agreements between Aboriginal people and commercial fishers could be put into action through settler-state based institutions.
This negotiation process concluded with a report that attached a map with the proposed reserved areas being sent by the Milingimbi Council to the NT Commercial Fishermen’s
810 Ibid 137 (D Parsons). 811 Ibid (23 June 1981) 250 (R Stigson). 812 Ibid 249. 813 Ibid. 814 Ibid 250. 815 Ibid 252. 816 Ibid (24 June 1981) 384 (R Slack-Smith). 817 Ibid. 818 Ibid. 138
Association, with copies to the NLC and the Commonwealth Department of Aboriginal Affairs. The response to this report was a letter that contained a motion of the NT Commercial Fishermen’s Association that the ‘claims lodged are not acceptable to this association and … we do not feel that they are genuine and we are not satisfied that the true traditional owners are the people making the claims’.819 Negotiations were then ‘broken off’ and the Milingimbi community began the sea closure application process.820
This fairly formalised, multi-party negotiating process that was instigated and led by Yolngu people appears to be an assertion of Indigenous decision-making authority. It also again articulated the type of control that the Yolngu community were seeking; the ability to negotiate who entered sea country and on what terms. These interactions demonstrated that governments and commercial fishers were at least ostensibly willing to negotiate and to recognise a level of authority in Aboriginal people. However, in this case, the commercial fishers still had the power to walk away. Further, the licenced commercial fishers knew that they would be exempted from any sea closure (although, at that point, the issue of renewal of licences had not been considered by the Commissioner). In that context, lodging an application for a sea closure was not a threat to the licenced commercial fishers.
The negotiating process was only one part of the interactions between commercial fishers, government and the Yolngu community. The Yolngu community also reported ‘illegal fishing’ and approached fishers that were causing problems to their community. As well as appearing as an implicit assertion of Indigenous sovereignty with respect to attempting to exercise a level of control over non-Indigenous fishers, these interactions also revealed a complex relationship between Indigenous laws and settler-state laws in relation to fishing.
2. Interactions between Commercial Fishers, Government and the Yolngu Community: Causing Problems and ‘Illegal’ Fishing
There was evidence presented of the many messages (telegrams, letters, phone calls) of Yolngu people reporting the actions of non-Indigenous fishers.821 These messages were sent both between Indigenous communities as a warning and, separately to NT Fisheries, the NT Police or the Commercial Fishermen’s Association as complaints. There were also examples of both Yolngu people, and non-Indigenous people who worked within the community,
819 Ibid (23 June 1981) 258 (R Stigson). 820 Ibid. 821 For example: Ibid (21 October 1980) 151-152 (R Stigson); (23 June 1981) 248-249 and 258-259 (R Stigson). 139 approaching fishing boats to ask them to leave, putting signs up asking fishers not to fish in certain places and collecting evidence (such as photographs) of commercial fishers who were causing ‘problems’.822 These assertions were not made without risk. There was evidence of the abuse that Yolngu people, and non-Indigenous people working within Indigenous communities, sometimes faced when they confronted commercial fishers.823 Making such assertions despite, and in the face of, such abusive behaviour, demonstrates how important these actions were to the Yolngu community.
The types of actions and problems that might cause the community to report or approach commercial fishers did not appear to be based on settler-state law. There were references in the evidence to ‘illegal fishing’, but it was not apparent exactly what this meant.824 The use of the term ‘illegal’ might be presumed to be related to the settler-state based legal context of not complying with fisheries legislation; perhaps the most obvious example would be fishing without a licence or not complying with the licence in terms of type of gear or species of fish. Slack-Smith noted in his evidence that he had received several reports of ‘illegal fishing’ from the Milingimbi community.825 However, Slack-Smith stated that he found it difficult, at times, to determine ‘what was a report of illegal fishing … and what in fact was purely legal fishing under the Fisheries Act’.826 Counsel for the NLC, put a direct question on this issue to Slack-Smith:
Mr Parsons: Correct me if I am wrong - You would have heard complaints of acts that may well have been quite legal, but you would have presumably heard when you went to Milingimbi people complaining about what in fact were legally proper things to do but which were concerning the community?
Mr Slack-Smith: That is true.827
This exchange suggests that defining illegal fishing according to settler-state law was not the main issue for the Yolngu community. Rather, the issue was whether it was concerning the
822 For example: Ibid (21 October 1980) 155 (R Stigson); (22 June 1981) 205 (J Munyarirr). 823 For example: Ibid (24 June 1981) 336-337 (S Davis). There was also, more generally, fear in the community of commercial fishers: see, for example, in relation to women: (24 June 1981) 371-373 (D Bell). 824 For example: Ibid (24 June 1981) (R Slack-Smith) 380. In a different context, Smyth noted that members of the TLC had reported commercial fishers to the police but the police had failed to take action because ‘the police had been advised that commercial fishers were not illegally trespassing unless it could be proved that their boat’s anchor had made contact with the Aboriginal-owned river bed’: Smyth, A Voice in All Places (n 406) 62 (also see at 134). 825 Milingimbi Sea Closure Hearing Transcript (n 710) (24 June 1981) (R Slack-Smith) 380. 826 Ibid 381. 827 Ibid. 140 community, and whether the community did something about it, for example by trying to talk to the fishers or making a complaint to NT Fisheries. One interpretation here is that the term ‘illegal’ provides a notion of right or wrong derived from Aboriginal law, rather than settler- state law. Again, these discussions appear to reveal an implicit assertion of Indigenous sovereignty with respect to attempting to exercise a level of control over non-Indigenous fishers at the interface of Aboriginal law and settler-state law. This interface was also the focus of the evidence about Indigenous commercial fishing.
3. Indigenous Commercial Fishing828
During the hearing, it became evident that there were significant queries about Aboriginal engagement in commercial fishing. For example, when one Yolngu witness (Joe Mawunydjil) was asked whether Yolngu people have commercial fishing licences, he replied:
Our law says the same thing as the commercial licence says, what they can get, because Aboriginal people know what age the fish maybe is… The Aboriginal people think that if we don’t have a commercial licence we can still catch the fish and sell it, either in the community itself or we can export to other places like Gove or into Darwin, but we have to know how we can sell fish to other areas.829
These were assertions of the role of Indigenous law, and its equivalence to settler-state law, in the context of defining rights to exploit marine resources such as fish. Mawunydjil was suggesting that commercial fishing could be done without a commercial fishing licence issued under settler-state law. Further, Mawunydjil also noted that: ‘[i]t is a very hard thing to the Aboriginal people to get the commercial licence’.830 This indicates that the government was not providing an adequate opportunity for Indigenous peoples to be able to action what was provided for by settler-state law. Justice Toohey stated that the Fish and Fisheries Act 1979 permitted Aboriginal communities to apply for commercial fishing licences ‘with a view to supplying local communities with fish …’.831 Evidence was given about commercial licences in some communities and training provided by the NT Government Fisheries
828 Aspects of this section were discussed in: Butterly, ‘Fishing for rights’ (n 11) 55-56. 829 Ibid (22 June 1981) 191 (J Mawunydjil). 830 Ibid. Smyth particularly noted the high cost of fishing licences: Smyth, A Voice in All Places (n 406) 64. 831 Final Report: Milingimbi Sea Closure (n 479) 15. 141
Division’.832 However, these were small operations that had not been able to send out of the communities due to problems associated with running businesses in such remote areas.833
These notions of what a commercial operation looked like came from a settler-state perspective. The evidence of witnesses like Mawunydjil suggested that the distinction between traditional and commercial was not viewed in the same dichotomous way in the Yolngu community. Further, that commercial fishing may be undertaken pursuant to Indigenous laws. This conversation reveals two possibilities: either, the settler-state could seek to understand and recognise Indigenous ‘commercial’ fishing; or if the focus on the settler-state version of commercial fishing continued, then Indigenous communities needed training, support and capital to effectively engage. The need for support and training was already being recognised, but the evidence demonstrated that it was not yet sufficient to enable Aboriginal people to engage. In effect, the relevant fisheries legislation allowed for Aboriginal people to apply for commercial licences, but this was not a practical reality and it did not seem like potential alternatives were being explored. The notion that settler-state law could not always fulfil its potential was also a theme in relation to enforcement.
4. Enforcement
The issue of enforcement of sea closures was raised by the NT Police in their submissions. Their submissions stated that they [the NT Police] were: ‘totally unequipped to police the [sea closure] legislation’; they did not know of any other government agency that would be in a position to enforce sea closures; and that ‘in terms of enforcement the legislation would be totally ineffective’.834 This was a stark submission, and it was beyond the scope of Toohey J to address given that the ‘provision of facilities necessary to enforce closures is largely a matter for government’.835 However, Toohey J noted that there was ‘obvious scope for co- operation between the law enforcement authorities and the communities affected’.836 This co- operation option was not pursued by the NT Government, nor were the type of arrangements that seemed to be working in relation to sacred sites considered in the sea closure context.
832 Also see: Darryl Grey and Rosemary Lea, ‘Fisheries in the Northern Territory - their Management and Aboriginal Involvement’ in Turning the Tide: Papers presented at conference on Indigenous Peoples and Sea Rights (NT University, 14-16 July 1993) 207, 220. 833 Milingimbi Sea Closure Hearing Transcript (n 710) (23 June 1981) 263-264 (R Stigson). These were the same issues raised in the Woodward Commission. See discussion at: Chapter IV, Part C, Section 2(c). 834 Final Report: Milingimbi Sea Closure (n 479) 23. 835 Ibid. 836 Ibid. 142
The settler-state was making a choice here not to pursue enforcement options beyond the ill- equipped NT Police.
In this context, Davis noted that while Aboriginal people were confident about enforcing Aboriginal law, they ‘did not feel the same confidence in applying legislation which they perceive as distinct from Aboriginal law’.837 Davis further noted that Aboriginal people ‘prefer to avoid active involvement in the administration of Australian law’ particularly because it ‘inevitably results in confrontation’.838 This sentiment emphasised the existence of the enforcement of Aboriginal law, but also complicates the narrative about how enforcement of sea closures could have been improved if Aboriginal people were involved.839 The issues to do with avoidance of confrontation appear to be challenged by the evidence of the communities reporting and approaching fishers, however, this could be viewed as enforcing Aboriginal law not settler-state law.840 Whereas, the issues to do with confidence appear to raise more complex issues about the relationship between Indigenous peoples and settler-state laws and, similarly to the issues of commercial fishing, the requirement for sufficient training and support. Davis’ sentiments certainly did not bear out going forward because, as will be seen in Chapter VIII,841 opportunities for Aboriginal people to be involved in enforcement of settler-state laws were actively sought.
Pursuant to the AL Act, the settler-state was asserting that sea closures would provide a particular type of reconciling of interests. Aboriginal tradition would be given limited recognition by settler-state law so that Aboriginal communities could control entry of certain classes of people into the sea closure. However, from the outset, the settler-state law seemed incapable of ensuring that sea closures could operate in this way. It appeared that restrictions on entry could not be enforced by the allocated settler-state agency. Aboriginal people did not have a formal role in enforcement despite suggestions that this could be beneficial. In this
837 Davis, ‘Aboriginal Sea Rights in Northern Australia’ (n 207) 17. Brady noted that given the wide area of sea closures, Indigenous people might also struggle with enforcement. She noted that many islands do not have permanent populations and that it is often when Aboriginal people go to ‘check up’ on sites that they discover ‘evidence of intrusion’ such as ‘rubbish dumped from boats’: Brady (n 656). Also see comments about the relationship between police and Indigenous peoples and how this might impact enforcement by Aboriginal people in Johanna Sutherland, Fisheries, Aquaculture and Aboriginal and Torres Strait Islander Peoples: Studies, Policies and Legislation (Report prepared for Commonwealth Department of Environment, 1996) 72. 838 Davis, ‘Aboriginal Sea Rights in Northern Australia’ (n 207) 17. 839 Ibid. 840 Further, there was evidence from at least one Yolngu witness that he would go out and ask fishers if they were complying with both the ALRA and fisheries legislation: Milingimbi Sea Closure Hearing Transcript (n 710) (22 June 1981) 218 (J Memawuy). 841 See discussion at: Chapter VIII, Part D. 143 context, the settler-state law was not able to deliver the compromise of interests that it had set out in the legislation. Further, the settler-state was also not willing to consider ways in which marine governance models could be usefully modified to involve participation of Aboriginal people in enforcement.
D. Conclusion
The sea closure framework was the settler-state’s first attempt at negotiating the reconciling of Indigenous and non-Indigenous assertions of sovereignty in the sea in the NT. It was also the first legislation in the broader Australian context that provided significant settler-state based legal recognition of Indigenous rights over an area of sea.842 The legislation was significant in the way that it recognised Aboriginal tradition as underlying an entitlement to use the seas and to have some control over who entered sea country. However, only a restricted form of control was on offer: the ability to control entry of limited classes of persons into the sea closure. The exemptions, general and commercial fishing, significantly undermined the ability of Indigenous communities to control who entered the sea closure. These exemptions were assertions of overarching settler-state governmental authority in the marine space and a clear prioritisation of settler-state sanctioned economic exploitation. Further, these exemptions functioned in blanket ways that potentially disincentivised non- Indigenous people from continuing informal permission and notice interactions that they may have previously engaged in with Aboriginal communities.
Although the sea closure framework only provided a limited version of control to Aboriginal people, the first sea closure hearing gave the Yolngu community the opportunity to articulate the type of control they were seeking. From the Yolngu perspective, control was about having decision-making authority to determine who entered the sea closure and for what purposes. It was emphasised that the Yolngu community did not want to exclude everyone, and the pre- history of the Milingimbi claim was Indigenous-led negotiations with the government and commercial fishers. The blanket exclusions of the sea closure framework were far stronger than the Yolngu people sought in a reciprocal sense. Ganter summarised that the legislation was ‘at once inadequate and overly prescriptive’.843 It seems what she meant was that the legislation did not give adequate control to Aboriginal people but it was also too certain in how it gave out blanket exemptions to broad classes of non-Indigenous people. It appears that
842 Smyth, A Voice in All Places (n 406) 136. 843 Ganter (n 34) 201. 144 the Aboriginal communities sought a far more interactive and nuanced approach that would have involved ongoing negotiations.
The lack of enforcement capacity presented an interesting quandary. The settler-state was providing a mechanism to recognise Indigenous rights but was then not able to ensure delivery of that protection. There were both theoretical and practical elements to this. The legislation was drafted with the knowledge of the potential problems with enforcement, but no specific resolutions were incorporated. Further, when the NT Police pointed out that they could not enforce the legislation, there was no practical response to that. The settler-state seemed to not be concerned if the resolution they had proposed was feasible. This suggests that the settler-state might be implementing such mechanisms to appear to be responding to Indigenous concerns (or other requirements, such as the Commonwealth Government’s provision in the ALRA relating to entry to the sea), rather than actually seeking to effectively recognise Indigenous assertions of sovereignty.
As noted by both Ganter and Bergin, the sea closures did not provide for participation by Aboriginal people in strategic marine planning even on the most basic and local levels.844 In this sense, sea closures were a passive mechanism that did not involve ongoing engagement between Indigenous and non-Indigenous people other than the few classes of people that required permits.845 However, the sea closures were a base upon which to build. The legislation had acknowledged that Aboriginal people had tradition that entitled them to rights in the sea. This acknowledgement, alongside the legal and anthropological work that was undertaken for the first two sea closure hearings (and preparation for some applications that were not pursued), started a broader conversation on sea country rights and governance. In effect, Bergin and Ganter’s work was part of that conversation. The first part of the next chapter will focus on this conversation and how it evolved between the enactment of the AL Act and the first successful native title claim over the sea in 2001 (Yarmirr HCA).
844 Ibid 200 and Bergin (n 33) 187-188. Also see: Altman et al, Existing and Potential Mechanisms (n 680) 19. 845 The NLC, in a submission to the Coastal Zone Inquiry, summarised this as: ‘Sea closures are essentially a negative device and do not put Aboriginal people in contact with resource managers nor more importantly give them any involvement in resource management’: quoted in Smyth, A Voice in All Places (n 406) 133. 145
VI. EPISODE THREE: POST-SEA CLOSURE (AND POST-MABO) DISCUSSIONS ON SEA COUNTRY RIGHTS AND GOVERNANCE AND THE SUBSEQUENT PRIORITISATION OF THIRD-PARTY INTERESTS IN YARMIRR HCA
A. Introduction
In the years following the finalisation of the second (and final) sea closure application in 1989, there was a vibrant legal, policy and academic conversation about sea country rights and governance. These discussions were predominantly based around Mabo,846 which was determined in 1992, and the Coastal Zone Inquiry (‘CZ Inquiry’), which released its final report in late 1993.847 As noted in Chapter IV,848 Mabo was the first recognition of common law native title in Australia, but it applied to a terrestrial area. The CZ Inquiry was a major national inquiry into coastal zone management that was established by the Commonwealth Government.849 The CZ Inquiry was conducted by the Resource Assessment Commission (‘RAC’).850 After Mabo, there was a dedicated doctrinal conversation amongst legal commentators about whether the principles of Mabo would apply to the sea.851 Whereas, the
846 Mabo (n 35). 847 Commonwealth, Resource Assessment Commission (‘RAC’), Coastal Zone Inquiry Final Report (November 1993). 848 See discussion at: Chapter IV, Part B, Section 1(c). 849 RAC (n 847) 1-2. The Terms of Reference were signed by the then Prime Minister Bob Hawke. By the early 1990s, several issues in relation to coastal zone management in Australia had emerged including ‘[m]ajor problems of fragmented jurisdiction or responsibility for issues affecting the coast and between levels of government’: Pat Hutchings, ‘Coastal Zone Issues in Australia’ (1991) 22(5) Marine Pollution Bulletin 220, 220. Immediately prior to the CZ Inquiry there had been three national inquiries/reports relating to coastal management that appeared to be grappling with formulation of a national approach: Nick Harvey, ‘The Combination-Lock Effect Blocking Integrated Coastal Zone Management in Australia: The Role of Governance and Politics’ (2016) 30 Ocean Yearbook 1, 6-7. The CZ Inquiry ‘drew similar conclusions to the three previous national inquiries and conducted its own review of 29 previous state and national coastal inquiries. The RAC report reiterated the problems of a lack of coordination and the need for a more integrated approach, which took a holistic approach to coastal management… It recommended there should be a national approach…’: at 7. 850 RAC (n 847) 1-2. The RAC was established in 1989 and undertook three inquiries (‘mining in the Kakadu conservation zone; the forest and timber industries; and the management of coastal zone resources’): Donald Stewart and Greg McColl, ‘The Resource Assessment Commission: An Inside Assessment’ (1994) 1 Australian Journal of Environmental Management 12, 12. The RAC was set up in the wake of several high profile environmental controversies in Australia in the 1970s and 1980s such as uranium mining proposals in the NT and World Heritage Listings in Tasmania, Queensland and the NT: at 13. A Commonwealth Government media release announcing the establishment of the RAC noted that it would ‘provide an opportunity for all levels of Government, interested groups and individuals to have their views taken into account before the Commonwealth makes major land use decisions’: at 13-14. The functions of the RAC were terminated in 1993: at 12. 851 For example: Bartlett, ‘Aboriginal Sea Rights at Common Law’ (n 219) 9; McIntyre, ‘Mabo and Sea Rights’ (n 219) 107; Meyers et al (n 219); Richard Cullen, ‘Rights to Offshore Resources after Mabo 1992 and the Native Title Act 1993 (Cth)’ (1996) 18(2) Sydney Law Review 125; Anthony Bergin, ‘A Rising Tide of Aboriginal Sea Claims: Implications of the Mabo Case in Australia’ (1993) 8(3) International Journal of Marine and Coastal Law 359. 146
CZ Inquiry had a much broader remit and saw discussions about both sea country rights and governance.852 One thing that was made clear by a range of commentators, including NT Government Ministers,853 was that while sea closures were the only current legislative response to Indigenous sea claims, they were not adequate.854 There was a consensus by commentators that Mabo would apply to the sea, but the commentators in the context of the CZ Inquiry (generally non-lawyers who worked in sea country governance) were careful not to rely too much on what native title might provide. In this context, there was a sense that native title might not be able to deliver the type of control that Indigenous communities were seeking over sea country. This caution turned out to be well-placed.
The first native title claim over the sea in the Yarmirr cases was successful, but the court held that native title to sea country could only be non-exclusive. Therefore, the Indigenous claimants could use their sea country, but they could not prevent others from using those seas. This was both in the sense that they could not prevent others from using the seas in situations of conflict (for example, where a commercial fisher is legally fishing according to settler-state law but might be interfering with Indigenous laws), but also more broadly, they could not insist that non-Indigenous people ask for permission to enter. It was a type of co- existence that was not significantly different to what had existed prior to the native title determination. According to the High Court, there was both a factual and legal reason why it could not be exclusive. The factual reason related to findings by the trial judge that non- Indigenous people did not have to comply with the Indigenous permission requirements and, therefore, there was no factual basis for an exclusive claim. The legal reason was that the international right of innocent passage and the common law public rights to fish and navigate could not be reconciled with recognition of exclusive Indigenous rights. These third-party rights were regarded as limitations on the settler-state’s sovereignty such that they must take priority over any other rights the settler-state might recognise.
This chapter has two parts. Part B explores the ‘post-sea closure; pre-Yarmirr HCA’ consideration of Indigenous sea country rights and governance with a focus on the aftermath of Mabo and the CZ Inquiry. Part C then examines recognition of native title over sea country
852 For example: Smyth, A Voice in All Places (n 406); Altman et al, Existing and Potential Mechanisms (n 680); Peter Jull, A Sea Change: Overseas Indigenous-Government Relations in the Coastal Zone (Report commissioned by Coastal Zone Inquiry, 1993). 853 Hatton (n 745) 2. 854 Smyth, A Voice in All Places (n 406) 133; Altman et al, Existing and Potential Mechanisms (n 680) 6, 19; Lanhpuy (n 745) 5; Allen (n 745) 57. 147 with a focus on the Yarmirr cases. In turn, Part C is split into three sub-sections. The first sub-section explores whether a claim to sea country could be made pursuant to the NTA (the legislative response to Mabo). This includes consideration of the Commonwealth’s submission, in the Yarmirr cases, that the NTA did not allow for a native title claim to be made below the low water mark. Such an argument was a strong expression of a denial of compromise between settler-state and Indigenous interests. The second sub-section then considers the claim in Yarmirr FC and the trial judge’s factual findings in relation to permission. Finally, the third sub-section looks at the two contested legal issues that were seen throughout the Yarmirr cases and finally determined in Yarmirr HCA: how to define settler-state sovereignty in the sea; and the impact of international and public rights on native title rights. This third sub-section reveals policy choices that were made by the courts to prioritise non-Indigenous third-party rights and keep the status quo of settler-state protected open access and governmental authority.
B. Post-Sea Closure, Pre-Yarmirr HCA: Conversations on Indigenous Sea Country Rights and Governance
The expanding conversations about sea country rights and governance in the early 1990s were driven by the CZ Inquiry, which began in 1991, and the possibilities presented by the Mabo decision. The CZ Inquiry investigated both legal and governance issues that impacted the regulatory framework of managing the coastal zone across Australia at local, State/Territory and national levels. The marine boundary of the coastal zone that the CZ Inquiry adopted was 200 nautical miles seaward of the low water mark.855 There were three substantive consultation reports relating to Indigenous peoples specifically commissioned for the CZ Inquiry.856 This part foregrounds these consultancy reports over the CZ Inquiry Final Report because they provide a valuable independent examination of: Indigenous use of sea country; Indigenous aspirations in relation to sea country governance; existing and potential legal and governance mechanisms for Indigenous participation in coastal management; and
855 RAC (n 847) 7. 856 See (n 852). See, in particular, Smyth’s description of the Indigenous consultancies relating to the CZ Inquiry: Smyth, A Voice in All Places (n 406) 5-6. Smyth noted that although the terms of reference of the CZ Inquiry did not mention Indigenous issues: ‘a few months into the Inquiry, the commissioners approved funding for a report on Aboriginal and Torres Strait Islander interests in the coastal zone. A few months later the High Court brought down the Mabo native title decision and Indigenous issues were suddenly front page news’: Dermot Smyth, ‘Fishing for Recognition: The Search for an Indigenous Fisheries Policy in Australia’ (2000) 4(29) Indigenous Law Bulletin 8, 9. 148 comparative overseas experiences of Indigenous rights to, and governance over, the sea.857 The analysis of sea country governance in the consultancy reports was particularly focused on use rights (including aspirations for involvement in commercial fishing)858 and the ability to make decisions about who entered sea country and participating, more broadly, in marine management.859
Mabo recognised a concept of native title at common law and held that the source of native title rights was the traditional laws and customs of Indigenous peoples.860 Further, Mabo held that the content of native title would be determined by the character of those traditional laws and customs.861 As discussed in Chapter IV,862 both Mabo and the Gove Land Rights Case held that Australia was a settled colony and that English common law became the law on acquisition of sovereignty. However, the cases differed on the overall impact of acquisition of sovereignty on Indigenous peoples. Justice Blackburn in the Gove Land Rights Case held that the Crown had acquired beneficial title, effectively amounting to ownership, along with radical title. The majority in Mabo held that the Crown acquired only radical title and that radical title was something less than absolute beneficial ownership.863 Therefore, common law native title rights could be recognised.864 The findings in Mabo about sovereignty will be revisited in Part C of this chapter when considering whether this concept of radical title was
857 See (n 852). 858 For example: Smyth, A Voice in All Places (n 406) 19-23; 29-35, 171-178; RAC (n 847) 166-169, 180-184. There was a particular focus on, at a minimum, securing ‘traditional hunting, fishing and gathering rights’: RAC (n 847) 184 (Recommendation 17 and 18). 859 For example: Smyth, A Voice in All Places (n 406) 35-45, Altman et al, Existing and Potential Mechanisms (n 680) 63-72; RAC (n 847) 169-176. 860 Bartlett, Native Title in Australia (n 217) 27. Native title could be extinguished by government powers, but the ‘exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive’: Mabo (n 35) 64 (Brennan J). 861 Bartlett, Native Title in Australia (n 217) 27. 862 See discussion at: Chapter IV, Part B, Section 1(b). 863 Mabo (n 35) 53. Justice Brennan appeared to suggest that radical title was a creature of common law: at 47- 48. Samantha Hepburn reflected that radical title was ‘an appropriate compromise between tenure and native title’ and this new form of ‘[r]adical tenure evolved as a response to the social and cultural changes that had occurred in Australia over time’: Samantha Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27(1) Sydney Law Review 49, 79-80. Brendan Edgeworth noted that radical title operated as a ‘linking concept between the constitutional or public law notion of sovereignty on the one hand, and the private law of proprietary rights on the other’: Brendan Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared After Mabo v Queensland’ (1994) 23(4) Anglo-American Law Review 397, 409. 864 In this context, Justice Toohey emphasised that the ‘distinction between sovereignty and title to or rights in land is crucial’: Mabo (n 35) 180. This distinction was such that sovereignty was ‘mainly a matter of jurisdiction, involving questions of international and constitutional law’, whereas title was about proprietary rights that, for the most part, depend on municipal law: at 180. 149 relevant in the context of sea country. The broader governance conversation of the CZ Inquiry was clearly informed by what Mabo might mean for Indigenous rights in sea country.
1. Relationship between Coastal Zone Inquiry and Mabo
The CZ Inquiry and Mabo were inextricably linked because of their timing.865 At the time of the release of the CZ Inquiry Final Report in 1993, the potential impact of Mabo over sea country clearly had to be acknowledged, but there was no certainty as to how native title might be recognised over sea country.866 The most that the Final Report stated was that recognition of sea rights was of concern to Indigenous peoples and that some government coastal management agencies were ‘examining the implications’ of Mabo.867 Yet, there were several places in the consultancy reports where Mabo was identified, from an Indigenous perspective, as having the potential to provide leverage and an opportunity for ‘negotiation and bargaining about management of coastal zone resources’.868 Further, Altman et al stated that Mabo had ‘raised [I]ndigenous expectations of full involvement in coastal management regimes around Australia’.869 These statements demonstrated a focus on using any rights that might have been gained from Mabo to provide a bargaining chip to negotiate opportunities for broader sea country governance.
The post-Mabo conversation in the CZ Inquiry was also informed by a doctrinal conversation from legal commentators about whether native title rights could be recognised in the sea.870 Most legal commentators seemed certain that native title would apply to the sea.871 However,
865 The Terms of Reference for the CZ Inquiry were issued in October 1991. Mabo was then determined on 3 June 1992. The Final Report of the CZ Inquiry was released in November 1993. Relevantly, the NTA was then assented to on 24 December 1993: NTA (n 37), Endnote 3 – Legislation History. However, Smyth did note that he (and presumably other people associated with the CZ Inquiry) had seen proposed legislation in relation to the NTA in September 1993: Smyth, A Voice in All Places (n 406) 57. 866 Smyth, A Voice in All Places (n 406) 2-3, 53. 867 RAC (n 847) 176-177. 868 Altman et al, Existing and Potential Mechanisms (n 680) 15, 62. 869 Ibid 62. Also see: Smyth, A Voice in All Places (n 406) 57. 870 Smyth, A Voice in All Places (n 406) 56-57. 871 See sources listed at (n 851), cf Cullen. Cullen approached the issue with a focus on marine law, rather than native title law and concluded that there might be significant challenges in recognising native title within the marine law context. Bartlett’s paper gave a brief overview of comparative jurisdictions and noted that common law native title had been recognised to the sea in the United States, Canada and Aotearoa/New Zealand: Bartlett, ‘Aboriginal Sea Rights at Common Law’ (n 219) 11-16. He noted that US and Canadian courts had not doubted the application of common law native title to the sea (citing Peoples of Village of Gambell v Clark 746 F 2d 572, 574 (9th Cir) (1984) and Calder v AG British Columbia (n 485)). In relation to Aotearoa/NZ, Bartlett stated that common law native title to the sea had also been recognised (citing Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 and Te Runangao Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641), but that it was more complex as it had been substantially modified by statute and regulation. Also see: Bartlett, Native Title in Australia (n 217) 335-337. 150 some, such as Greg McIntyre, noted that there would be complicated legal questions about the relationship of native title to other non-Indigenous rights in the sea.872 McIntyre raised fundamental concerns including that it could be argued that ‘to accord such rights [vesting sea in subjects of the Crown] to [A]boriginal Australians, would be to accord them rights which are not held by others’.873 This last reflection was an insightful precursor into the questions in the Yarmirr cases around the relationship of native title rights to international and public rights discussed in Part C of this chapter.
Smyth noted in his consultancy report for the CZ Inquiry that Mabo and its implications were raised ‘during every consultation meeting around the coast’.874 However, there was generally a cautious approach from non-legal commentators that emphasised that Mabo might only deliver use rights and not ownership or control.875 This cautious approach, coupled with the broader nature of the CZ Inquiry, allowed for a post-Mabo conversation that was not ‘pinning its hopes’ on native title.
2. ‘Conflicts and Concerns’ and Aspirations of Control Identified by the CZ Inquiry Consultancy Reports
Smyth summarised, as a starting point, that ‘Aboriginal concerns and conflicts with respect to the marine environment have not been satisfactorily resolved in any jurisdiction or in any marine resource industry in Australia’.876 Smyth categorised the concerns and conflicts of Indigenous peoples relating to sea country into three areas: the failure of settler-state decision-making processes to give meaningful opportunities for Indigenous peoples to participate in decision-making about their sea country; inadequate responses from government (sea closures were used as an example of a response by government that had
872 McIntyre, ‘Mabo and Sea Rights’ (n 219) 112. Bergin also raised concerns about recognition of native title by common law: Bergin, ‘A Rising Tide of Aboriginal Sea Claims: Implications of the Mabo Case in Australia’ (n 851) 365. 873 McIntyre, ‘Mabo and Sea Rights’ (n 219) 112. 874 Smyth, A Voice in All Places (n 406) 53. 875 Ibid 56. There were some exceptions to this: Ian McIntosh suggested that: ‘With sufficient data, native title rights and interests could amount to legal recognition as a form of full beneficial ownership’: McIntosh (n 270) 20. Also see: Dermot Smyth, Saltwater Country Aboriginal and Torres Strait Islander Interests in Ocean Policy Development and Implementation (Issues Paper for Australia’s Ocean Policy (Commonwealth Government), 1997) 15. 876 Smyth, A Voice in All Places (n 406) 167. 151
‘serious problems’);877 and the lack of benefits flowing to Indigenous communities from non- Indigenous commercial exploitation of sea country.878 Further, Smyth noted that:
…governments see themselves as the final arbiters and decision-makers. On the other hand, Aboriginal and Torres Strait Islander people throughout coastal Australia see themselves as the primary owners and stewards of environments and resources, with other interests, including governments, as usurpers and impediments to their freedom to exercise their rights and obligations.879
This statement emphasises that control is about decision-making. In this context, Smyth concluded by stating that the main underlying cause of Indigenous concerns and conflicts was inadequate levels of control over their sea country.880 This assertion of aspirations for control, as expressed by Smyth, almost suggests that from an Indigenous perspective the settler-state should withdraw. Whereas, as seen with the approach of the Yolngu community to the first sea closure application,881 there appears to also be more nuanced understandings of the type of control that Indigenous peoples were seeking over sea country. Smyth’s statement can be read in a more nuanced way to emphasise that the settler-state should not be the only and ultimate decision maker in relation to sea country.
It was clear from the consultancy reports for the CZ Inquiry that although Mabo had changed the ‘social, legal, economic and ethical environment in which planning and management decisions’ were being made, it was not clear that it could deliver any form of control or decision-making to Indigenous peoples.882 In fact, Smyth identified that some of the concerns of Indigenous peoples relating to the coastal zone were ‘not likely to be resolved by the allocation of property and resource rights’, but instead required the development of plans, strategies and associated consultative and co-operative mechanisms.883 Yet, there was also acknowledgement that, in general, more recognition of Indigenous relationships to the sea in settler-state legislation and policies, would lead to greater ‘recognition of that relationship’ and would likely result in ‘fewer concerns and conflicts’.884
877 Ibid 133. Also see: (nn 853 and 854). 878 Smyth, A Voice in All Places (n 406) 59. 879 Ibid 59-60. 880 Ibid 98. 881 See discussion at: Chapter V, Part C, Section 1. 882 Smyth, A Voice in All Places (n 406) 58. 883 Ibid 201. 884 Ibid 214. Also see: Monica Mulrennan and Colin Scott, ‘Mare Nullius: Indigenous Rights in Saltwater Environments’ (2000) 31(3) Development and Change 681, 703. 152
The discussion in the consultancy reports revealed that although sea closures were the only legal mechanism that sought to provide specific recognition of sea country rights,885 the jurisdiction that had the most Indigenous participation in elements of marine governance (particularly fishing) was Queensland and, more specifically, the Torres Strait region.886 The Torres Strait was the only place, at that time, where Indigenous fishers had involvement in aspects of managing commercial fishing (under provisions of the Torres Strait Treaty which was negotiated between Papua New Guinea and Australia).887 However, it was noted that Torres Strait Islanders had been critical of the provisions of the Torres Strait Treaty because of its state-centric model that gave Indigenous people representation on some committees, but not on ‘any decision-making institution established under the Treaty’.888 There was a consistent focus on the Indigenous assertion of control being akin to decision-making. Further, such control should enable communities to make their own decisions on some matters about their sea country and ensure Indigenous participation in broader mechanisms of joint decision-making between the settler-state and Indigenous peoples.
Another theme that became apparent was the emergence of Indigenous communities involving themselves in land and resource management. The formation of Dhimurru in 1992 was particularly identified as a positive opportunity for Indigenous-led involvement in sea
885 However, Altman et al noted that Anthony Bergin had identified that there was ‘limited potential sea rights’ in Queensland with respect to tidal lands: Altman et al, Existing and Potential Mechanisms (n 680) 8. Around the time that Bergin was writing, the Aboriginal Land Act 1991 (Qld) provided in s 2.15 that: ‘Available Crown land includes tidal land only if the Governor in Council declares, by order in council, that the tidal land should be so included’ (also see s 2.12 of the Torres Strait Islander Land Act 1991 (Qld) as passed). Graeme Neate (then President of the National Native Title Tribunal) later emphasised that this was limited given it had to be declared available for claim: Graeme Neate, ‘Indigenous Land Rights and Native Title in Queensland: A Decade in Review’ (Paper Delivered to the International Law Association Queensland Chapter, Brisbane, 22 August 2001)
There was also an example of the Indigenous community at Galiwinku (Arnhem Land) producing an overarching marine protection strategy for the Arafura Sea in 1994 (with assistance from the NLC and Ocean Rescue 2000894 (which was a Commonwealth Government-supported initiative).895 The strategy was comprehensive and included a recommendation that there should be government acknowledgement and support for ‘application of Yolngu law’ throughout their sea country.896 Further, the strategy presented a clear assertion of decision-making authority over sea country and a desire to own and operate commercial fishing enterprises. The community positioned this strategy as their way of approaching the NT and Commonwealth governments to start discussions about involvement
889 Smyth, A Voice in All Places (n 406) 41. 890 Altman et al, Existing and Potential Mechanisms (n 680) 20. 891 Ibid. 892 See discussion at: Chapter IX, Part C, Section 2. 893 Smyth, A Voice in All Places (n 406) 152. As mentioned in the previous two chapters (at Chapters IV, Part D, Section 3 and V, Part B, Section 3), this idea had been floated several times in the NT but, as will be seen in Chapter VIII, Part D, Section 2, it was not taken up until after the Blue Mud Bay Case. 894 RAC (n 847) 421-422. Ocean Rescue 2000 was a Commonwealth Government initiative that aimed to ‘provide a national vision and national objectives and programs for the conservation and sustainable use of Australia’s marine environment.’: at 421. 895 Ginytjirrang Mala (n 270) 6. Also see: McIntosh (n 270) 9 and Ganter (n 34) 202. 896 Ginytjirrang Mala (n 270) 2. This strategy went beyond the domestic realm. One of the recommendations was that the Australian Government, with the assistance of Yolngu people, pursue a bilateral co-management agreement with Indonesia: at 2. Although this acknowledged that Australia would have to lead any bilateral talks, it involved the Yolngu people in international negotiations. 154 in governance of sea country.897 If the governments did not listen, the community identified that it might then be necessary to apply for determination of native title rights.898 This sense that native title could be used as a bargaining chip to negotiate high level involvement in sea country governance was short-lived given the determination of non-exclusive native title in Yarmirr HCA.
What is perhaps most interesting about this strategy is the unusual dynamic between the settler-state and Indigenous peoples given it was written with the assistance of a Commonwealth Government-supported initiative. The Commonwealth Government had effectively assisted the Aboriginal community to voice their aspirations to manage their sea country according to Yolngu law and management principles.899 From the research conducted for this thesis, it does not appear that this strategy led to long term sea country governance outcomes for that community. Nevertheless, and importantly, the expression of those assertions remains on the public record in a way that is accessible to the settler-state.
On the other hand, the limitations of setting up co-managed marine parks in the NT were also noted, particularly given the ‘significant power … retained’ by the non-Indigenous parties.900 Negotiations for the first, and still only, co-managed marine park in the NT, the Cobourg Marine Park, were protracted (even though the adjacent (terrestrial) national park was already operating through co-management arrangements).901 Several concerns were raised by Traditional Owners about the proposal for the co-managed marine park. These included that they would lose their ability to control access to culturally significant sites and that they wished to ‘maintain traditional lifestyles free from the scrutiny of outsiders’.902 The marine park was declared in 1983, but it was not until 1996 that the legislation was amended such that it was jointly-managed through an eight member board where four of the members must be Traditional Owners (appointed by the NLC).903
897 Ibid 6. 898 Ibid. 899 Robinson and Mercer also noted that after the CZ Inquiry, in 1997, the Commonwealth Government produced an issues paper on Aboriginal and Torres Strait Islander interests in the sea to help inform the national Oceans Policy and also appointed an Indigenous representative on the Ministerial Advisory Group to Oceans Policy: (n 147) 355. However, see (nn 914 and 930) for further comment on Indigenous interests and the Oceans Policy. 900 McIntosh (n 270) 19. 901 Jackson, ‘Maritime Agreements’ (n 235) 227. 902 Ron Billyard, ‘Aboriginal Involvement in Northern Territory Marine Parks’ in Turning the Tide: Papers presented at conference on Indigenous Peoples and Sea Rights (Northern Territory University, 1993) 198, 203. 903 Jackson, ‘Maritime Agreements’ (n 235) 227 and Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1996 (n 242) s 19(1). 155
One of the recommendations of the CZ Inquiry was that criteria be established for Indigenous participation in marine parks.904 However, in the NT, only one other marine park has ever been declared. The Limmen Bight Marine Park was declared in 2012, but the relevant management plan only became operational on 29 April 2020.905 The Limmen Bight management plan does not establish a formal jointly managed marine park. However, it does include provisions for Indigenous participation in governance that will be discussed in Chapter IX.906
Altman et al noted that there was ‘clearly no lack of government mechanisms’ available to coordinate Indigenous involvement in sea country governance; rather, the issue was one of ‘access and appropriateness’.907 In particular, these structures had to accommodate the highly localised and decentralised authority structures of Indigenous communities and had to be flexible enough to accommodate Indigenous systems of coastal tenure that ‘do not necessarily fit into mainstream ideas of management’.908 Further, the co-management models of joint Indigenous/non-Indigenous decision-making, and the focus on conservation in the context of marine parks, did not always allow for the type of control that Indigenous communities were seeking, for example, in terms of protecting sacred sites.
The CZ Inquiry made several recommendations in relation to Indigenous peoples. These included: extending community ranger programs nationally; supporting the establishment of Indigenous-led environmental management organisations (like Dhimurru and Kowanyama); a review by fisheries authorities of Indigenous interests in fisheries; representation of Indigenous peoples on fisheries advisory committees; and financial assistance and management training to facilitate Indigenous peoples to engage in commercial fishing.909 Another recommendation relating to commercial fishing was for ‘measures to improve
904 RAC (n 847) 185. 905 Lauren Moss (NT Minister for Tourism, Sport and Culture), ‘Limmen Bight Marine Park Plan of Management Operational’ (Media Release, 29 April 2020)
There was no recommendation about Indigenous legal rights relating to broader control of sea country. This is not necessarily a criticism of the Final Report of the CZ Inquiry. As seen in the previous paragraph, the recommendations of the CZ Inquiry were otherwise quite progressive in terms of sea country governance and included recommendations on Indigenous rights to subsistence fishing and gathering. However, given the Terms of Reference were focused on integrated management of the coastal zone, they were not prepared to make recommendations relating to what might be considered as the separate, and highly politicised, issue of broader Indigenous sea rights. This, in itself, was a limitation of the framing of the CZ Inquiry. Perhaps, if the CZ Inquiry had been commenced after the Mabo decision, the Terms of Reference may have been different.914 In the final section of his consultancy report, titled ‘Implementing Change’, Smyth noted, referencing submissions from Indigenous organisations, that negotiation for sea country governance requires ‘both parties have approximately equal standing … [and it] is therefore necessary for [Indigenous] interests to be legislatively supported in order that [they] have a platform from which to negotiate’.915 This legislative platform was not represented in the CZ Inquiry recommendations. Further, even though the consultancy reports did not pin their hopes on Mabo, the non-exclusive nature of the outcome of the first native title claim to the sea appeared to have a dampening effect on the broader sea country governance conversation.
910 Ibid 187. Also see: at 184. 911 Smyth, A Voice in All Places (n 406) 236. 912 See discussion at: Chapter IV, Part D, Section 3(b). 913 Also see: Jull (n 852) 90. 914 However, Australia’s Ocean Policy released in 1998 also did not include policy about broader Indigenous governance over the sea. The policy included increased participation in consultation forums, ensuring that reliance on marine resources was treated as important and increased involvement in commercial fishing: Commonwealth, Australia’s Ocean Policy (1998) 30
C. Yarmirr Cases: Recognition of (Non-Exclusive) Native Title Rights and Priority Given to Third-Party (Non-Indigenous) Interests
The Yarmirr cases demonstrated a strong acceptance by the trial and majority appellate judges in both the Full Federal Court and High Court that native title could exist below the low water mark. In fact, the majority in Yarmirr HCA admitted that there was uncertainty as to the technical legal aspects of the Crown’s sovereignty over the sea, but they were still prepared to make a determination that native title could exist even in the face of a Commonwealth argument to the contrary. However, the trial and majority appellate judges (again, in both the Full Federal Court and the High Court) held that native title rights to the sea could not be exclusive because of the competing third-party rights. The majority in Yarmirr HCA stated that it was ‘not sufficient to attempt to reconcile’ native title rights with these international and public law rights.916 This limitation on exclusivity was a policy choice made by the judges to give international and public rights priority over native title rights without any form of compromise or more sophisticated reconciliation.
This part has three sections. The first briefly outlines the relevant provisions in the NTA. It is important to detail these provisions upfront as they give context to the Commonwealth’s argument that native title could not exist below the low water mark. The second section then explores the background to the Yarmirr FC claim and the issues at trial including the trial judge’s factual findings in relation to exclusivity, which considered whether the permission principle applied to non-Indigenous people. Finally, the third section considers the two main contested legal issues in the Yarmirr cases - the meaning of settler-state sovereignty below the low water mark and the impact of public and international rights - and how both these issues interacted with recognition of common law native title rights. These two issues are interlinked given that international and public rights are related to assertions of settler-state sovereignty.
One theme that becomes apparent across both the contested issues is the lack of clarity relating to concepts of settler-state sovereignty. This included doctrinal uncertainty around whether international and public law rights are aspects of settler-state sovereignty or, in the case of public rights, common law rights (and whether that, in itself, is a meaningful distinction). All this uncertainty indicates that the judges in the Yarmirr cases had
916 Yarmirr HCA (n 17) 68 [98]. 158 discretionary choices to make. These were made by recognising native title rights while limiting their impact on settler-state assertions of sovereignty and, consequently, on third- party grantees of interests from the settler-state.
1. Could a Claim be made to Sea Country Pursuant to the Native Title Act?
Pursuant to the NTA, native title could be claimed over both land and waters.917 Waters were defined in s 253 NTA to include the sea.918 Pursuant to s 6, the NTA applied to coastal seas and to any waters over which Australia asserted ‘sovereign rights’ under the Seas and Submerged Lands Act. The expression ‘sovereign rights’ seemed to be used here to indicate the way that the Australian state claimed rights to the sea in accordance with international law. Therefore, native title could be claimed over the internal and coastal waters of the States/NT and the territorial sea of the Commonwealth.919 As Kirby J noted in Yarmirr HCA, ‘the Parliament could have confined the Act to apply only to “land” (inviting argument over what that concept would mean in this context). However, it did not do so.’920 The text of the NTA appeared to allow for a claim to be made to sea country.
In the Yarmirr cases, the Commonwealth argued that ss 6 and 253 NTA were not determinative of whether native title could be recognised over the sea. They argued that the NTA was drafted ‘with an eye to prudence’ such that it left ‘it to the courts to say what native title was, when it existed and when it did not’.921 The Commonwealth submitted that s 223(1)(c) NTA was key to determining if native title could be recognised over the sea.922 Section 223(1)(c) NTA stated that native title rights and interests have to be ‘recognised by the common law of Australia’. The Commonwealth argued that common law interests could not exist beyond the low water mark, and therefore, it was ‘beyond the capacity of the
917 NTA (n 37) s 223(1). Also see discussion at: Butterly, ‘Changing Tack’ (n 200) 9. 918 Waters also included: a tidal inlet, a bay, an estuary, a harbour, the bed or subsoil under, or airspace over any waters and the shore (between the high and low water mark): Ibid s 253. This definition separated the sea bed from terrestrial land: Hepburn, ‘Native Title Rights in the Territorial Sea’ (n 218) 164. 919 Hepburn, ‘Native Title in Coastal and Marine Waters’ (n 218) 300. There was also discussion by Justices McHugh and Kirby in Yarmirr HCA about whether native title could be recognised beyond the limits of the territorial sea (Exclusive Economic Zone and Continental Shelf). This was also later considered by Justice Finn in Akiba FC (n 215). See discussion in Melissa Perry and Stephen Lloyd, Australian Native Title Law (LawBook, 2nd edn, 2018) 27. 920 Yarmirr HCA (n 17) 114 [256]. 921 Ibid, Submissions of the Commonwealth, 8. Also see: Yarmirr FC (n 36) 549-550 [36] and Perry and Lloyd (n 919) 128. 922 Yarmirr HCA (n 17) Submissions of the Commonwealth, 8. 159
Crown’ to recognise native title below the low water mark.923 This argument was based on principles of English common law that applied to the Australian colonies (which existed prior to the formation of the Australian state through federation in 1901), such that the limit of the common law was the low water mark.924
The way this argument conceptualised settler-state sovereignty was that beyond the low water mark state sovereignty existed only in its international sense and, therefore, could not be burdened by common law rights. Yet, the settler-state seemed to recognise common law rights to fish and navigate below the low water mark. Counsel for the NT picked up on this point and noted that the common law has ‘long recognised the public right of navigation and of fishing in seas and tidal waters where common law does not apply’, and there is no reason why the same approach should not be taken to native title rights.925 Here, one settler-state party (the Commonwealth) wanted to treat Indigenous common law rights of native title differently to non-Indigenous common law rights, whereas another settler-state party (the NT) argued that both sets of rights should be treated equally in this context.
The argument that native title could not be recognised below the low water mark was not accepted by the majority in Yarmirr HCA (nor the trial judge, or on first appeal to the Full Federal Court).926 The majority stated that the text of the NTA ‘puts it beyond doubt that the Parliament contemplated that native title over the sea-bed and its superjacent waters and airspace might be recognised by the common law and thus might be the subject of a determination under the Act’ (emphasis as in original).927 The majority were keen to avoid making a final determination on whether common law existed below the low water mark. Instead, the majority redirected their inquiry to the inconsistency element of s 223(1)(c) NTA.
923 Ibid 5. Also see: Sparkes (n 759) 274-275 and Matthew Storey, ‘The Black Sea’ (1996) 79(3) Indigenous Law Bulletin 4, 6. 924 Yarmirr HCA (n 17) Submissions of the Commonwealth, 6. The argument of the Commonwealth was: ‘It has long been a principle of English common law that the limits of each county and of the realm lie at low-water mark. That rule applied to the Australian colonies and defined the limits of the States after federation. The territory of Australia, therefore, lay at the limits of the States for constitutional purposes and also for the purposes of the common law.’: at 6 (footnotes omitted). 925 Ibid 16. 926 However, two judges did accept the argument of the Commonwealth: McHugh and Callinan JJ in the High Court: Ibid 69 [104] (McHugh J) and 158 [364] (Callinan J). For a summary of McHugh J’s arguments in relation to this point see: Hepburn, ‘Native Title in Coastal and Marine Waters’ (n 218) 307. 927 Yarmirr HCA (n 17) 74 [122]. The majority did note, in this context, that this was not a ‘conflict of laws’ situation (for example, the laws of different international states) but that, in fact, the NTA presupposes that ‘the two systems - the traditional law acknowledged and traditional customs observed by the relevant peoples, and the common law - can and will operate together’: at 47 [37]. This passage also represents the High Court acknowledging the dual systems of law that are operating in Australia: Strelein, Compromised Jurisprudence (n 218) 126-127. 160
This element required ‘examination of whether the common law [was] inconsistent with the continued existence of the rights and interests that owe their origin to Aboriginal law or custom’.928 As will be explored in the third section of this part, s 223(1)(c) was central in limiting native title in sea country to non-exclusive determinations. However, the judges made a choice to avoid a situation where there would be no ability to recognise native title beyond the low water mark. The majority of judges across the Yarmirr cases were not prepared to accept an expression of settler-state sovereignty that would deny any form of reconciliation between settler-state and Indigenous interests in the sea.
The Commonwealth’s argument, that native title could not exist below the low water mark, was the strongest expression of a denial of compromise between settler-state and Indigenous interests seen throughout the episodes of this thesis. In a practical sense, the settler-state made a deliberate choice that it was going to argue that no native title rights to the sea could be recognised. Whereas, it could have just argued that there were no exclusive rights such that settler-state and third-party rights would continue to be exercised without any detriment alongside native title rights (in the way the NT did). The argument of the Commonwealth appears at odds with both the drafting of the NTA and the way the Commonwealth and the NT approached the issue of ‘sea rights’ in the context of the ALRA and the AL Act. In terms of the former, there had been a change of Commonwealth Government since the drafting of the NTA and the approach of the new Liberal/National Coalition Government to native title was more restrictive.929 In relation to the latter, although sea closures had serious limitations, both the Commonwealth and the NT appeared to accept that some sort of sea country rights needed to be provided for in the legislation.
Of course, the arguments of the Commonwealth in the Yarmirr cases were in the different context of litigation, but this does not appear to detract from the strength of the settler-state’s expression.930 The Commonwealth’s argument was phrased as a doctrinal legal one that presented a limit to the settler-state’s ability to recognise native title but, in effect, it sought to
928 Yarmirr HCA (n 17) 60 [76]. 929 John Howard became Prime Minister in March 1996. In relation to native title, Howard was particularly known for the implementation of the 1998 amendments to the NTA: Bartlett, Native Title in Australia (n 217) 61. 930 Further, Robinson and Mercer noted that the 1998 Commonwealth Oceans Policy Issues Paper stated that: ‘The Commonwealth has taken the position that native title does not exist offshore’: (n 147) 358. This indicates that it was more than just a litigation strategy. 161 prevent any form of reconciliation of Indigenous and non-Indigenous sovereignties below the low water mark.
2. The Claim in Yarmirr FC
Yarmirr FC related to the seas around the Croker Islands to the north of the Cobourg Peninsula (just east of Darwin).931 The area claimed included the seas and seabeds and the waters over the intertidal zone (but not the land underneath the intertidal zone).932 All of the claimed area was within the 12 nautical mile limit of Australia’s territorial sea and, therefore, all of the claimed area was waters over which Australia asserted sovereignty under the Seas and Submerged Lands Act.933 The area included both coastal waters of the NT and territorial seas of the Commonwealth. The application for determination of native title was lodged with the Registrar of the National Native Title Tribunal on 22 November 1994.934 This was less than a year after the passing of the NTA but with the trial and two further appeals this first sea claim was not finally resolved until 2001.
(a) The Background to the Yarmirr Claim: Clear History of Indigenous Assertions of their Relationships to the Sea
Prior to the Yarmirr FC native title claim, a sea closure application was made in the same area in May 1983.935 This was precipitated by communications in April 1983 from the Director of the Conservation Commission of the NT proposing to declare a marine park.936 With respect to the proposed marine park, the NLC made representations on behalf of the Aboriginal community that they were not supportive of the marine park as it would result in increased interference with offshore sacred sites, and restrict the community’s use of the sea ‘especially if they wish to engage in activities which are beyond the scope of their traditional use’.937 This was an example of the potential conflict between Indigenous peoples and environmental conservation described in Chapter II.938 The NLC submission suggested a change to the boundary of the marine park so that it would not encompass certain areas of sea
931 Strelein, Compromised Jurisprudence (n 218) 52. It was an application of the Mandilarri-Ildugij, Mangalara, Muran, Gadura, Minaga, Ngayndjagar and Mayorram peoples. 932 Yarmirr FC (n 36) 546 [27]. Note Olney J’s commentary in that paragraph about the distinction between the land underneath, and waters over, the intertidal zone. 933 Ibid 547 [31]. 934 Ibid 538 [6]. 935 See table at: Chapter V, Part B, Section 3. 936 Yarmirr FC (n 36) 578-579 [104]. 937 Ibid. 938 See discussion at: Chapter II, Part D, Section 1(b). 162 country.939 Justice Olney in Yarmirr FC identified this as an assertion of a ‘right to be consulted in relation to the use of their sea country’.940 However, it seems to be more than just a right to be consulted, and appears to be an assertion of Aboriginal authority to make decisions about their sea country and to use rights that are beyond traditional use.
This assertion seemed to be successful as, in July 1983, the marine park was declared (the Cobourg Marine Park, that would go on to become co-managed) but the NT government had changed the boundary so that it did not include waters identified by the Aboriginal communities.941 The sea closure application was referred to the Administrator, but it was never heard and remains unresolved.942 In that context, it is useful to reflect on the language of the Office of the Aboriginal Land Commissioner, discussed in Chapter V,943 about sea closure applications being ‘subsumed’ by native title claims. In this case, the sea closure application was lodged in 1983, well before Mabo, and then the native title application was lodged just over ten years later. It does not appear that waiting for the availability of native title several years later was a deliberate strategy. There was also evidence during the Yarmirr FC hearing of smaller, traditional sea closures that communities imposed themselves for reasons including the death of a family member (some for up to two years).944 Justice Olney concluded that these traditional sea closures only applied to Aboriginal people and not non- Aboriginal people.945 It is clear that, whether or not they applied to non-Indigenous people, they reflected the ongoing operation of Aboriginal laws in sea country. However, as will be seen in the next section, whether Indigenous permission requirements applied to non- Indigenous people was a key element in the factual findings on exclusivity.
(b) The Trial Judgment: Factual Findings on Exclusive Possession
Yarmirr FC was heard at first instance by Justice Olney in the Federal Court and determined in July 1998. The claim was that:
939 Yarmirr FC (n 36) 578 [104]. 940 Ibid. 941 Ibid. Justice Olney did note that there was no evidence before the court as to why exactly the decision was made. 942 Ibid 580 [105] and Office of the Aboriginal Land Commissioner, Annual Report: Report for the year ended 30 June 2005 (n 33) 42. 943 See discussion at: Chapter V, Part B, Section 3. 944 Yarmirr FC (n 36) 583 [112]. 945 Ibid 584 [114]. 163
native title rights and interests confer possession, occupation, use and enjoyment of the waters and land to the members of the five clans to the exclusion of all others, subject to the right of senior clan members to permit others to have the use and enjoyment of the waters and land.946 (emphasis added)
This latter element of permitting others is reminiscent of the more nuanced version of control asserted during the first sea closure hearing.947 Several rights and interests were identified as ‘of importance’ including: the right of ownership (interpreted by Justice Olney as being recognised as Traditional Owners – not as ownership in a legal proprietary sense);948 the right to make decisions about the use of the waters; the right to control access of others to the waters and to control the use of resources by others; the right to trade in resources of the waters and to receive a portion of the catch taken from the waters;949 the right to protect places of importance;950 and the right to safeguard cultural knowledge.951 The claimed rights to make decisions and control access became the focus of Olney J’s decision as they were deemed most relevant to the claiming of rights ‘to the exclusion of all others’.952
In terms of making decisions about sea country, evidence was given about the importance of decision-making on topics including oil exploration, tourism and commercial fishing.953 When describing the permission requirements, one of the claimants, Mary Yarmirr, was asked what would happen if an oil exploration company wanted to drill for oil within their
946 Ibid 536 [4]. 947 This was discussed at: Chapter V, Part C. 948 Yarmirr FC (n 36) 575-576 [99]-[100]. Justice Olney held that the word ‘ownership’ added nothing to the understanding of this claim other than to indicate that the native title rights and interests attached to a particular group. In this context, his Honour noted that Brennan J had stated in Mabo that ascribing the term ownership to the Meriam people would be confusing, and Olney J agreed that it would be further confusing in the context of the sea. 949 Ibid 586-588 [119]-[122]. Justice Olney considered the history of trading, including the Macassan trading examined in Chapter III, Part C, Section 2, but concluded that: ‘There is no other evidence that since European contact the members of the Croker Island community have engaged in trade, either by way of sale or exchange in the “sustenance or other” resources of the waters of the claimed area… The evidence does not support the claim that the applicants enjoy a native title right or interest to trade in the resources of the claimed area.’: at 588 [122]. 950 Ibid 588-589 [123]-[125]. Justice Olney held that the evidence established that claimants had rights and obligations in relation to sites within the claimed area which they were required to ‘protect from unauthorised and inappropriate use’: at 589 [125]. However, Olney J emphasised that this right ‘is capable of enforcement only to the extent that those who enjoy the right are capable of having and controlling access to the relevant estate’: at 589 [125]. 951 Ibid 589-590 [126]-[127]. Justice Olney held that, in general, the right to safeguard knowledge was not a right or interest in relation to waters. However, if there was a need to safeguard knowledge that was particular to the claimed area (such as needing to visit a site to teach knowledge), then it could be said to be in relation to land and waters. Similarly to the right to protect important sites, this right would only be capable of enforcement to the extent that the claimants are capable of controlling access. 952 Ibid 536 [4]. 953 Ibid 577-578 [102]. 164 sea country.954 Yarmirr stated that they would have to ask for permission and, when they did so, she would then ‘sit down and negotiate and come to a settlement’.955 She also noted that there had previously been inquiries from oil exploration companies about certain areas of sea country that were sacred and she had asked them to reconsider, and they had respected her request. Yarmirr gave evidence that in circumstances where development would not impact particularly on sacred sites she could say ‘yes’ to an oil exploration company.956 These appear to be assertions of the ability to negotiate with third parties and make decisions for sea country.
Yarmirr did note in relation to commercial fishers that, although they should come to negotiate, ‘they don’t seem to come and sit down and talk with us for some unknown reason’.957 This indicates that although there has been some times when these assertions were reciprocated to some degree by commercial entities (oil exploration companies) and the settler-state (marine park negotiations), in other circumstances it was not reciprocated. In effect, sometimes these assertions were unilateral. Justice Olney held that the evidence in relation to the right to make decisions about sea country established that ‘the applicant community has consistently asserted, as a matter of Aboriginal law, the right to be consulted about and to make decisions concerning the use of its sea country’.958 This was a powerful affirmation of these Indigenous assertions by a judge of a settler-state court. However, as will be seen below, Olney J’s determination that native title rights could not be exclusive meant that this assertion was not recognised as a native title right in Yarmirr FC and, therefore, not recognised by settler-state law.
In terms of controlling who enters sea country, there was a focus on issues of permission. Justice Olney held that the evidence established that, according to the traditional laws and customs, Aboriginal people, both from within and outside the Croker Island community, should seek and obtain permission of the yuwurrumu (group holding a particular estate)959 whose sea estate they want to enter.960 Justice Olney took the broader approach to permission,
954 This was previously noted in: Chapter III, Part C, Section 3. 955 Yarmirr FC (n 36) 577 [102]. 956 Ibid. 957 Ibid 578 [103]. 958 Ibid 580 [107]. 959 Justice Olney stated that: ‘Each estate is normally associated with a single group of people, who trace or claim descent through the male line, known as a yuwurrumu’: Ibid 564 [70]. 960 Ibid 582 [110]. 165 similarly to Justices Woodward961 and Toohey,962 rather than the strict interpretation of Justice Blackburn.963 In this context, Olney J noted that the requirement to obtain permission does not necessarily involve seeking permission on every occasion and can be dependant on long term relationships.964 However, Justice Olney took a different type of narrowing approach. His Honour determined that seeking permission only applied to other Aboriginal people.
Justice Olney noted the evidence of claimant Charlie Wardaga who explained that balanda did have to ask permission to enter sea country, but they generally did not because ‘he got no brains’.965 His Honour carefully considered this submission as meaning not literally that non- Indigenous people have ‘no brains’, but that they have no knowledge of Aboriginal traditional law about permission.966 Given this, Justice Olney held that the claim to possession, occupation, use and enjoyment of the waters ‘to the exclusion of all others’ was not supported by the evidence. His Honour held that at its highest, the evidence was that between themselves, members of each yuwurrumu recognise and seek permission before fishing, hunting or gathering on another clan’s sea country and the Aboriginal people from outside the Croker Island region probably did that too.967 Justice Olney’s approach appears to be narrower than that taken by Justice Toohey in the context of sea closures.968 The approach of Toohey J seemed to indicate that permission requirements would apply to non-Indigenous fishers but that whether they complied (or, whether Aboriginal people could enforce them) was a separate issue.
Justice Kirby was the only judge, over all the Yarmirr cases, who held that the way in which Justice Olney came to his factual findings about exclusivity was legally erroneous.969 Justice Kirby argued that by requiring claimants to assert against balanda a ‘right to physical expulsion…[was] to define the problem in terms of a desired outcome that would always be
961 As discussed at: Chapter IV, Part C, Section 1. 962 As discussed at: Chapter V, Part C. 963 As discussed at: Chapter IV, Part B, Section 1(a). 964 Yarmirr FC (n 36) 583 [111]. 965 Ibid 585 [114]. 966 Ibid. 967 Ibid 585 [115]. Justice Olney’s findings on the other claimed rights, such as controlling use of resources, followed as ‘co-extensive’ with the right to access: 586 [117]. 968 As discussed at: Chapter V, Part C. 969 Justice Merkel in Yarmirr FullFC (n 225) 322-323 [665] raised some issues about ‘failure to recognise the possibility of exclusive uses of parts of the determination area’, but held that he did not need to determine if that led Olney J to legal error: Yarmirr HCA (n 17) 134 [302]. 166 unfavourable to the rights of persons such as the claimants’.970 In this context, Justice Kirby argued that conventional notions of exclusive occupation and possession were ill-suited to determine whether Indigenous peoples had exclusive rights.971 His Honour suggested that it would be more useful to focus on the claimants’ understandings of their assertions of ownership.972
Further, a test based on requiring exclusion failed to acknowledge the limitations on what Indigenous peoples could assert.973 Justice Kirby stated that ‘continual assertion of rights to be consulted in decisions concerning access to, and use of, the claimants’ country may be the highest feasible level of assertion of control by a fishing-based society against Europeans where the latter were possessed of superior arms and legal power’.974 In effect, Justice Kirby was arguing that the assertions of decision-making authority, which had been recognised by Olney J, were assertions of control and, further, that these assertions should not be dependent on enforcement of the permission principle given the reality of the historical power imbalance between balanda and Aboriginal people.975 Justice Kirby submitted that a proper approach to questions of factual exclusivity would be to ask whether the claimed rights survived in fact, and then, to explore their relationship with the other rights and interests in the sea.976
Justice Kirby’s approach encouraged the court to view these questions with an openness to sui generis Indigenous assertions and without blind adherence to the ‘adapted rules of the common law of England’.977 This approach is a sophisticated form of reconciliation of interests in two particular respects. First, it involves acknowledging that the settler-state legal concepts of possession and occupation, presented in the NTA and common law, were unable to fully describe Indigenous relationships to the sea. Therefore, to avoid a complete denial of any form of compromise on these questions, the settler-state needed to change the paradigm within which it was operating. Second, Justice Kirby was seeking a resolution that acknowledged that in earlier times Indigenous peoples could not ‘fight off the “white man”
970 Yarmirr HCA (n 17) 140 [316]. 971 Ibid 135-136 [304]. 972 Ibid. 973 Ibid 137-138 [309]. 974 Ibid. 975 Ibid 139 [313]. 976 Ibid 137-138 [309]. 977 Ibid 141 [318]. 167 with his superior arms’, but now the settler-state’s laws could choose to reconcile those interests.978
Further, as Richard Bartlett has pointed out, post Yarmirr HCA, in the terrestrial context, the Full Federal Court seems to have taken a less restrictive view of proof of exclusivity.979 This includes a recent determination that if the evidence establishes ‘traditional laws requiring permission to be granted to strangers to enter or exploit country, with the purposes of those laws being both to protect country and to protect transgressors from harm, then this may be properly characterised as a right to control access, which is the essence of exclusive possession’.980 In this context, Justices Jagot and Mortimer explained that ‘the language of “exclusive possession” …is an Anglo-Australian concept: it cannot be plucked and deposited into traditional law and custom, or searched for within such law and custom’.981 These sentiments match Kirby J’s arguments about possession and occupation as ill-fitted to analysing Indigenous relationships. As will be seen in the next section, Kirby J’s approach is further developed in the context of how international and public rights impact any legal claims to exclusive native title rights in sea country.
Justice Olney’s factual determination, that the native title rights were not to the exclusion of all others, meant that the claimants could use their sea country but they could not prevent others from using those seas.982 As noted in the introduction to this chapter, this was both in the sense that they could not prevent others from using the seas in situations of conflict (for example, where a commercial fisher is legally fishing according to settler-state law but might be interfering with Indigenous laws), but also more broadly, they could not insist that non-
978 Ibid 142 [320]. 979 Richard Bartlett, ‘Native Title Rights to Exclusive Possession, Use and Enjoyment and the Yindjibarndi’ (2018) 43(1) The University of Western Australia Law Review 92. 980 Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 [363] (joint judgment of Jagot and Mortimer JJ). However, Yarmirr HCA was distinguished. Justices Jagot and Mortimer stated about Yarmirr HCA: ‘Apart from the evidence said to support exclusive possession being limited (as the High Court noted), the evidence which was adduced did not explain the source or rationale for the asserted traditional law of excluding all others, whether by reference to spiritual or other explanations. Yarmirr was simply a very different case which turned on its own facts, and on the nature and quality of evidence before the trial judge’: at [247]. 981 Ibid [363]. 982 The Yarmirr FC (n 36) determination listed particular rights to ‘fish, hunt and gather’ for the purposes of satisfying ‘personal, domestic or non-commercial communal needs’, and to have access to the sea and seabed to exercise those rights and interests as well as to travel through, visit and protect places which are of cultural and spiritual significance and safeguard cultural and spiritual knowledge: 602 [161]. The majority in Yarmirr HCA (n 17) noted: ‘In the course of argument of the present appeals there was no discussion about…how effect might be given to a right of access to “protect” places or “safeguard” knowledge. We say nothing about such issues’: 33 [2]. 168
Indigenous people ask for permission to enter. It was a type of co-existence983 that was not significantly different to what had existed prior to the native title determination.
The first instance decision of Olney J was appealed both by the Commonwealth and the native title claimants.984 The Full Federal Court rejected both appeals and the matter was then appealed, again by the Commonwealth and the claimants, to the High Court.985 The majority in the High Court dismissed both appeals.986 In effect, this meant that the first instance decision stood: native title was recognised over the sea and seabed, but it was non-exclusive. Looking over all the judgments from trial to High Court, there were two judges who were prepared to recognise some version of exclusive native title rights to the sea.987 The most significant, both in terms of its substance and its position in the final determination of the High Court, was Justice Kirby’s arguments about recognition of both factual exclusivity (as seen in this section) and legal exclusivity (as will be seen in the next section). This led Kirby J to a different conclusion to the majority in relation to the way native title rights could be reconciled with international and public rights.
3. Two Contested Issues: Settler-State Sovereignty and International and Public Rights
Before examining the two contested issues, it is useful to briefly note that, as compared to sea closures, there has been significant legal academic commentary on Yarmirr HCA.988 This section will particularly draw on two explorations of Yarmirr HCA. The first is Ulla Secher’s provocative critique of the relationship between radical title and offshore native title, and the second is Lisa Strelein’s informative analysis in her book Compromised Jurisprudence.989
983 Jackie Morris, ‘Sea Country: The Croker Island Case: Commonwealth of Australia v Yarmirr’ (2002) 5(14) Indigenous Law Bulletin 18, 18. It was similar to what was recognised in relation to pastoral leases in Wik Peoples v Queensland (1996) 187 CLR 1. 984 The former submitted that no native title rights existed beyond the low water mark, and the latter appealed on the basis that the native title rights should have been exclusive. 985 Justice Merkel dissented in relation to the claimants’ appeal and held that it should be allowed. 986 Justice Kirby dismissed the Commonwealth’s appeal but allowed the claimant’s appeal. Justices McHugh and Callinan allowed the Commonwealth’s appeal and dismissed the claimant’s appeal. 987 The extensive version of ‘qualified exclusivity’ of Kirby J in the High Court (Yarmirr HCA (n 17) 127-130 [286]-[291]) and the more limited potential for recognition of a ‘several fishery’ (a historical English form of a limited exclusive fishery) of Merkel J in the Full Federal Court (Yarmirr FullFC (n 225) 296-297, 302ff [542], [545]-[546], [575]ff). 988 Morris (n 983); Damien Cremean, ‘In the Courts: The Common Law of the Realm: Commonwealth of Australia v Yarmirr (2002) 2(2) Oxford University Commonwealth Law Journal 257; Bartlett, Native Title in Australia (n 217) 332-337; Perry and Lloyd (n 919) 24-28; Gullett, Fisheries Law in Australia (n 209) 102-107; Hepburn, ‘Native Title in Coastal and Marine Waters’ (n 218) 306-314. 989 Secher, ‘Lessons from the Sea, Part One’ (n 218); Secher, ‘Lessons from the Sea, Part Two’ (n 218); Strelein, Compromised Jurisprudence (n 218). 169
These sources complement the analysis that this chapter presents. Secher’s doctrinal critique of the sovereignty issues inherent in Australian offshore native title cases goes well beyond the level of detail this thesis requires. Her analysis led her to argue that exclusive native title rights to the sea should be recognised for several reasons that will be considered in this section. This chapter draws on Secher’s analysis to clarify some of the assertions of settler- state sovereignty that might underlie the reasoning in Yarmirr HCA, but this chapter has a much broader context than Secher’s specific focus on radical title.
Strelein’s chapter on Yarmirr HCA is particularly useful as it is informed by the broader narrative of Australian native title case law. Her book traced the development of native title in Australia and is presented through chapters based on chronological case commentaries from Mabo through to Neowarra v Western Australia990 in 2003.991 Strelein’s critique allows this chapter to reach into that broader native title context whilst maintaining its NT and sea country focus. The lens of Australian native title law offers different ways of viewing the reconciling sovereignties frame. Australian native title law provides a context in which the courts are determining their view of the implications of the Crown’s acquisition of sovereignty.992
At the conclusion of her book, Strelein noted that in 2001 (before the pivotal native title cases of Western Australia v Ward993 and Yorta Yorta v Victoria),994 she had ‘proposed that the purpose of native title was as a settlement between competing sovereignties, or … a reconciliation of the prior sovereignty of Indigenous peoples with the assertion of sovereignty by the Crown’.995 Native title provided a ‘recognition space or an intersection of two legal systems’, but one which was compromised by the discriminatory treatment of Indigenous rights in a system where recognition ‘will be afforded by Australian law on its own terms on the basis of convenience’.996 This chapter sits within this compromised recognition space of native title law.
990 Neowarra v Western Australia [2003] FCA 1402. 991 The Yarmirr HCA chapter appeared chronologically in the middle of the book: Strelein, Compromised Jurisprudence (n 218) 52-58. 992 Ibid 140. 993 Western Australia v Ward (2002) 213 CLR 1. 994 Yorta Yorta v Victoria (2002) 214 CLR 422. 995 Strelein, Compromised Jurisprudence (n 218) 141. 996 Ibid 119, 141. Strelein noted that Indigenous lawyer Noel Pearson used the phrase ‘recognition space’ in relation to native title: at 127. 170
(a) Meaning of Settler-State Sovereignty in the Marine Context
Once the majority accepted that native title could exist below the low water mark, the question then became what was it that allowed for, or limited, such recognition. Mabo relied on the concept of radical title underlying native title.997 Yet, it was not clear exactly what radical title was, and if it could be applied to the sea in the same way as terrestrial land.998 In Yarmirr HCA, the majority stated that radical title was not an ‘essential’ tool of analysis to use in relation to the territorial sea.999 Further, the majority submitted that radical title was just a ‘legal theory’ that explained how settler-state sovereignty and native title co-existed.1000 The majority in Yarmirr HCA were emphasising that the concept of radical title should not be given too much weight. Instead, the majority stated that the inquiry into these matters must begin by examining: ‘what are the sovereign rights and interests which were and are asserted over the territorial sea’.1001 This focus on examining the sovereign rights and interests, rather than assuming radical title, adds a process of definition to this relationship that might seem more generous to reconciling Indigenous and non-Indigenous sovereignties; instead of an underlying and uncontested, but relatively undefined, version of the settler-state’s assertion of sovereignty, which is what radical title seemed to offer, a process of definition was required.
In this context, the majority noted upfront that sovereignty was a ‘notoriously difficult concept’, and that it was ‘neither necessary nor appropriate to attempt some comprehensive description, or definition, of the powers, rights and interests which Australia [as a settler- state] claims … in respect of the territorial sea’.1002 The majority stated that the assertion of sovereignty by Great Britain in 1824 ‘over the part of the claimed area that then lay within the territorial sea did not amount to an assertion of ownership to or radical title in respect of
997 See (n 863). 998 Nicolette Rogers noted that in decisions prior to Mabo, ‘although the meaning of radical title was not explained, the assumption was that the title was elastic, capable of expanding or contracting depending on the scope of property rights after native title had been taken into account’: Nicolette Rogers, ‘The Emerging Concept of “Radical Title” in Australia: Implications for Environmental Management’ (1995) 12(3) Environmental and Planning Law Journal 183, 184. However, she went on to note that the meaning in Mabo seemed to be more certain in that radical title ‘is no more and no less than bare legal title to land - a formal mechanism which empowers the Crown to create interests in land; land in others and in itself’: at 190. A question later arose as to whether radical title was a ‘bare legal title’ or whether it ‘conferred full and unfettered beneficial rights except to the extent of native title’ (emphasis added): Secher, ‘Lessons from the Sea, Part One’ (n 218) 526. Also see: Ulla Secher, ‘The Meaning of Radical Title: The Pre-Mabo Authorities Explained - Part 1’ (2005) 11(3) Australian Property Law Journal 179 and Ulla Secher, ‘The Meaning of Radical Title: The Pre- Mabo Authorities Explained - Part 2’ (2005) 11(3) Australian Property Law Journal 209. 999 Yarmirr HCA (n 17) 51-52 [49]-[50]. 1000 Ibid. Also see comments at (n 863). 1001 Ibid 51-52 [50]. 1002 Ibid 52-53 [52]. 171 the sea-bed or superjacent sea in that area’.1003 Their Honours then noted that there was ‘no doubt that the Imperial authorities claimed the right to legislate’ and, therefore, enacting legislation relating to the territorial sea was an assertion of sovereignty.1004 Further, this power to legislate included the ability to grant ownership or lesser rights to the sea or seabed, but no such legislation had been enacted.1005
The right to legislate was the only assertion of settler-state sovereignty that was identified by the majority in Yarmirr HCA. This is a powerful and broad form of assertion of sovereignty. The power to legislate is a legal platform from which to assert enhanced authority and enforce rights of the settler-state. However, it also leaves room for acknowledging the interests of others, both in the sense that legislation might not prevent Indigenous peoples from continuing their activities (such as the exclusion of Aboriginal people from fisheries legislation) or might even positively provide for the interests of Indigenous peoples. The difficulty with this limited upfront definition becomes clear when considering issues of inconsistency with the international and common law rights in the next section. These third- party rights arguably also operate as assertions of settler-state sovereignty.
(b) Impact of International and Public Rights on a Claim to Exclusivity
The majority in the High Court stated that they had not been presented with any evidence that suggested that Olney J’s factual findings on exclusivity were wrong.1006 However, the High Court did not stop there and also identified a fundamental legal difficulty in claiming exclusive rights to the sea.1007 The majority stated that the international right of innocent passage and the public rights to fish and navigate could not ‘co-exist with rights to exclude from any part of the claimed area’.1008
For the purposes of the High Court appeal, the claimants had amended their claim to ‘accommodate the competing rights’ by submitting that their native title determination should
1003 Ibid 53-54 [54]. 1004 Ibid 54 [55] and 59 [70]. 1005 Ibid 54 [55]. Beyond that, the majority stated: ‘It is unnecessary to decide what was the right and title that was vested in the [Northern] Territory’: Ibid 59 [70]. Also see: Hepburn, ‘Native Title Rights in the Territorial Sea and Beyond’ (n 218) 165. The majority rejected the Commonwealth’s argument that passing general legislation relating to the sea might extinguish native title: Strelein, Compromised Jurisprudence (n 218) 54. 1006 Yarmirr HCA (n 17) 66-67 [93]. 1007 Ibid 67 [94]. 1008 Ibid. 172 be made subject to a qualification for those international and public rights.1009 This was an effort by the claimants to demonstrate to the court how a reconciliation of interests could be provided for. Further, it was a compromise that gave the third-party rights priority over Indigenous rights because the third-party rights would not suffer any detriment and the status quo, in that sense, would be maintained. Instead, the claimants were acknowledging that their interests could be read down. The Aboriginal claimants were offering to accommodate the third-party rights so as to leverage the opportunity to get broader recognition of their own rights. However, the majority stated that the tension between those third-party rights and native title rights was ‘self-evident’ and they could not co-exist.1010 This was even though the majority accepted that the international and public rights did not require ‘free access to every part of the territorial sea’ at all times.1011 There was a potential path of reconciliation of interests put in front of the majority. These two sets of rights could have physically co-existed with arrangements that prioritised third-party rights if there was conflict.
The majority held that it was not ‘sufficient to attempt to reconcile [the sets of rights] by providing that [the] exercise of the native title rights and interests [was] subject to the other public and international rights’.1012 The majority’s approach here was such that the claim for exclusive native title rights could not be read down and, therefore, these two sets of rights could not stand together.1013 This was a denial of a claim of exclusivity based on legal inconsistency without any sense of the practical reality. Any claim to exclusivity in the sea was automatically inconsistent with the existence of these third-party rights without any consideration of the actual extent of the inconsistency. The majority was not willing to compromise on what exclusivity might look like in the sea. Before exploring how this test of inconsistency relates to assertions of settler-state sovereignty, it is useful to briefly describe the relevant international and public rights, and to specifically consider the alternative of ‘qualified exclusivity’ that was put forward by Justice Kirby.
1009 Ibid 67 [95]. 1010 Secher, ‘Lessons from the Sea, Part Two’ (n 218) 1106. Also see: Yarmirr HCA (n 17) 67-68 [96]. 1011 Yarmirr HCA (n 17) 67-68 [96]. 1012 Ibid 68 [98]. 1013 Ibid. Also see: Strelein, Compromised Jurisprudence (n 218) 53. 173
(i) International Right of Innocent Passage
At trial, Olney J commented that Yarmirr FC was different from Mabo in that Australia’s sovereign rights were qualified by international obligations.1014 Article 17 of the UNCLOS provided for the right of innocent passage through the territorial sea. Australia was a party to UNCLOS and its predecessor.1015 Further, Parts II, V and VI of UNCLOS were set out in a schedule to the Seas and Submerged Lands Act (and this included Article 17).1016 Justice Olney stated that although the Seas and Submerged Lands Act does not expressly enact the provisions of UNCLOS as part of the domestic law of Australia, the ‘statutory recognition given to them in this way is an acknowledgement of Australia’s commitment to its international obligations’.1017 Further, Olney J noted that it can ‘reasonably be said that Australia acknowledges that the right of the ships of all States to innocent passage through the territorial sea is a burden on the sovereignty which it enjoys over the territorial sea’.1018 Justice Olney went on to conclude that it ‘can fairly be said that the Convention [UNCLOS] brings to bear a legitimate and important influence on the development of common law’.1019 Therefore, Olney J approached this issue by stating that it would be contrary to the ‘values of common law’ to recognise a native title right that conflicts with Australia’s international obligation.1020
The majority in Yarmirr HCA did not link international law to common law in the same way. Their Honours even noted that there might be some dispute about when the right of innocent passage came to be part of customary international law, and that that right may not have been asserted at the time of acquisition of Crown sovereignty in 1824.1021 However, the majority were prepared to uphold the impact of the right of innocent passage given that ‘later assertions of sovereignty over other parts of the waters certainly did’ recognise and concede the right of innocent passage.1022
It is striking that, even with some uncertainty as to when the right of innocent passage was formally asserted, the majority were prepared to make a clear choice here about which rights
1014 Yarmirr FC (n 36) 591-592 [132]. 1015 Ibid 592 [133]. 1016 Seas and Submerged Lands Act (n 279) Schedule 1. 1017 Yarmirr FC (n 36) 592 [133]. 1018 Ibid. 1019 Ibid. 1020 Ibid. 1021 Yarmirr HCA (n 17) 55 [58]. Also see: Cullen (n 851) 138. 1022 Yarmirr HCA (n 17) 60 [75] and 68 [99]. 174 had overarching priority. Perhaps this can be explained by the High Court being reluctant to make a finding that might impact obligations that Australia had internationally. Further, there was the reality, though it was unexplored by any of the judges, that there was nothing in the UNCLOS that recognised any form of special rights for Indigenous ownership to the sea.1023 In effect, the relationship between the right of innocent passage and settler-state sovereignty was interpreted as one of constraint. The right of innocent passage restricted the ‘ability of the Crown to recognise native title to the full extent’.1024 It was beyond the control of the settler-state and, therefore, any rights recognised by the settler-state were also limited by these international rights.
(ii) Public Rights to Fish and Navigate
The common law public rights to fish and navigate were described by Justice Olney as ‘skeletal principles’ of Australia’s legal system.1025 His Honour noted that Mabo had made it clear that the common law would not recognise native title rights where recognition would fracture such a ‘skeletal principle’.1026 In describing the relevant public rights, Olney J stated briefly that the public right of navigation ‘evolved before Magna Carta’, and that the ‘common law has also recognised a public right to fish for many centuries’.1027 The existence and history of these public rights was not heavily analysed in any of the majority reasons in the Yarmirr cases.1028 In fact, the majority in the High Court noted that ‘[w]hatever may be the origins of those rights, no party ... disputed their existence and no party ... submitted that the sovereign rights asserted in 1824 did not acknowledge the continuation of those rights’.1029 Justice Olney did note that the public right to fish was freely amenable to
1023 In examining the UNCLOS, Stuart Kaye noted that: ‘there is little in UNCLOS for an indigenous group to take heart in regarding the recognition of special rights and claims of traditional ownership over offshore areas. If anything, the reverse is true. While a state can organise its own internal affairs without interference from other states, it is clear that it cannot use its internal legislative arrangements as an excuse for a dereliction of its international obligations. To remain compliant with international law, a state may have to dilute or even negate indigenous rights over offshore areas.’: Stuart Kaye, ‘Jurisdictional Patchwork: Law of the Sea and Native Title Issues in the Torres Strait (2001) 2(2) Melbourne Journal of International Law 381, 409. In Yarmirr HCA (n 17), Justice McHugh stated that ‘international law [does not] recognise them [Indigenous peoples] as being a burden on the sovereignty that a coastal state has over its territorial sea’: 103 [216]. 1024 Strelein, Compromised Jurisprudence (n 218) 133. 1025 Yarmirr FC (n 36) 593 [134]-[135]. 1026 Ibid 590 [129]. Also see: 549 [35], 593 [134] and Strelein, Compromised Jurisprudence (n 218) 55. 1027 Yarmirr FC (n 36) 593 [134]-[135]. 1028 Ibid; Yarmirr FullFC (n 225) 222-225 [205]-[219]. In dissent, Merkel J explored the public rights in more detail: at 293-301 [529]-[574]; Yarmirr HCA (n 17) 55-56 [60]-[61]. 1029 Yarmirr HCA (n 17) 55-56 [60]. 175 abrogation by legislation, and that there had been a long history of such regulation.1030 However, this abrogation did not appear to impact the perceived strength of the continuing common law right. In this context, Justice Olney’s reasons gave prominence to a common law right that has been highly circumscribed.1031 The trial judge gave the most expansive theoretical interpretation of these common law rights and this set a baseline for any reconciliation of interests.
The majority in Yarmirr HCA did not apply the skeletal principles test.1032 Instead, they directed attention to ‘the nature and extent of the inconsistency between the asserted native title rights and interests and the relevant common law principles’.1033 As Strelein noted, the majority applied a ‘simple test of inconsistency’;1034 ‘That is, where there is an inconsistency between the rights asserted and a common law principle, the common law will prevail’.1035 The majority noted in this context that although this inconsistency does not ‘arise as a result of the exercise of sovereign power’, like a fee simple grant would, the inconsistency was not just about competing claims. It was an expression of ‘control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive [native title] rights’.1036 This gives an indication of the relationship between inconsistency and assertions of settler-state sovereignty. The common law third-party rights operated as a limit on settler- state sovereignty that is then expressed as an obligation on the settler-state to protect open access. Before considering this relationship further, it is useful to explore Justice Kirby’s suggested compromise between third-party and native title rights.
(iii) A Compromise: ‘Qualified Exclusivity’
Justice Kirby accepted the compromise, put forward by the claimants, that there could be recognition of a form of qualified exclusivity.1037 Native title rights could be recognised as
1030 Yarmirr FC (n 36) 594 [137] citing Harper v Minister of Sea Fisheries (1989) 168 CLR 314 (‘Harper’). In fact, his Honour raised this in the context of potential extinguishment of native title rights by such legislation, not in the sense that it might be a relevant limitation on the contemporary public right to fish: at 598-599 [153]. 1031 However, Warwick Gullett has argued that while some people may submit that statutory fishing rights have completely replaced public rights, there is still a residual common law right: Gullett, ‘Up the Creek’ (n 209) 1, 5-6. 1032 Their Honours noted that this phrase had the potential to ‘obscure the underlying principles that are in issue’ and that it was not ‘profitable’ to consider what was, or was not, part of the skeleton: Yarmirr HCA (n 17) 68 [97]. 1033 Ibid 68 [97]. 1034 Strelein, Compromised Jurisprudence (n 218) 52. 1035 Ibid. 1036 Yarmirr HCA (n 17) 68 [100]. 1037 Ibid 119-120 [268]. 176 exclusive, but they could give way to other third-party rights.1038 His Honour’s reasons argued that an ‘examination of the actual extent of the inconsistency reveals that other elements of exclusivity of native title [were] not destroyed’.1039 Further, His Honour noted that the claimants had provided examples where other exclusive rights in the sea had co- existed with international and public rights, such as oyster-beds that were granted a statutory permit of exclusive possessory rights.1040 Although this example was statutory in nature, rather than co-existing common law rights, Kirby J stated that it demonstrated ‘important, and practical, ways’ in which rights may co-exist with underlying exclusive interests in the sea.1041 It was clear from Kirby J’s approach, to both the factual and legal findings on exclusivity, that His Honour wanted to recognise a fuller form of sea country native title.1042 In working to achieve this, His Honour was trying to find practical ways that could accommodate a reconciliation of interests that would ensure the status quo for the third-party rights and benefit Indigenous peoples.
This sort of qualified relationship between public access and Indigenous land rights was specifically recognised a few years after Yarmirr HCA in the context of statutory Aboriginal land rights in NSW. In Coffs Harbour and District Local Aboriginal Land Council v Minister Administering the Crown Lands Act (‘Coffs Harbour Case’),1043 a claim under the Aboriginal Land Rights Act 1983 (NSW) (‘NSW Land Rights Act’) included an area of the beach. The legal issue of exclusivity was not directly raised as the Aboriginal claimants conceded that it was not claimable land because it was ‘needed for the essential public purpose of access to that beach and intertidal zone’.1044 However, the Aboriginal claimants submitted that with appropriate conditions allowing for public access, their claim to the beach could still be granted.1045 The NSW Land and Environment Court (‘LEC’) upheld this submission. Justice Craig stated that an ‘ambulatory easement’ would adequately secure the ‘State’s interest in maintaining public access to the beach’ and that, given this, the ‘remedial and beneficial
1038 Ibid. 1039 Strelein, Compromised Jurisprudence (n 218) 57. 1040 Yarmirr HCA (n 17) 125 [280]. 1041 Ibid. Also see: Yarmirr FullFC (n 225) 301 [574] (Merkel J in dissent). 1042 Jacinta Ruru, ‘What Could Have Been – The Common Law of Native Title in Land under the Salt Water in Australia and Aotearoa/New Zealand’ (2006) 32(1) Monash Law Review 116, 119-121. 1043 Coffs Harbour and District Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2013) 199 LGERA 372 (‘Coffs Harbour Case’). 1044 Ibid 403 [161]. 1045 This submission relied on a provision in the Aboriginal Land Rights Act 1983 (NSW) (‘NSW Land Rights Act’) that allowed for conditions in these circumstances: s 36(5A). This was a power that was available to the Minister, but the court was also able to exercise that power in determining the appeal: Coffs Harbour Case (n 1043) 376 [13] and Land and Environment Court Act 1979 (NSW) s 39(2). 177
[Aboriginal land rights] legislation weighs in favour of the exercise of discretion’.1046 This gives a sense of what is possible in a practical sense within the Australian legal context in terms of qualified exclusivity.
There are two important, and relevant, differences between the Coffs Harbour Case and Yarmirr HCA. The first is that the NSW Land Rights Act is not based on proving historical connection like native title. Instead, it is based on claiming unused Crown land as a way of redressing past Aboriginal dispossession.1047 This meant that there was no need in the Coffs Harbour Case to undertake a historical consideration of how the public access rights and Aboriginal laws interacted at the time of acquisition of Crown sovereignty (as was required in Yarmirr HCA). The focus of the LEC was on the contemporary ability of the rights to co- exist. In effect, Kirby J was advocating for such a contemporary and practical focus in the Yarmirr HCA context. His Honour appeared to be arguing for a two-pronged approach where the existence of the two sets of rights at the time of acquisition of Crown sovereignty was relevant to recognition of native title, but that when considering how the rights could co-exist, that should be a contemporary exploration.
The second difference was that the beach in the Coffs Harbour Case was defined as ‘from the high water mark’ and did not include the area between the high and low water mark (the intertidal zone) or the sea.1048 Therefore, the Coffs Harbour Case was a terrestrial matter and there was no impact of the type of common law public rights (fishing and navigation) seen in Yarmirr HCA. The public access in the Coffs Harbour Case was provided for in the NSW Land Rights Act.1049 It is clear from the majority in Yarmirr HCA, that the public rights to fish and navigate were regarded as stronger than other forms of public access because they were common law rights. This distinction relates to a historical classification by English common law and does not have any basis in Indigenous relationships to the sea. However, it had significant impacts on the ability to claim native title rights.
1046 Coffs Harbour Case (n 1043) 403 [163]. 1047 NSW Land Rights Act (n 1045) s 36(1). 1048 Coffs Harbour Case (n 1043) 374-375 [6]. 1049 The claimants conceded that the beach was ‘needed for the essential public purpose of access to that beach’: Ibid 403 [161]. The phrase ‘essential public purpose’ was directly from the legislation: NSW Land Rights Act (n 1045) s 36. 178
Such a distinction was also seen in the 2018 decision of the Full Federal Court in Manado v Western Australia (‘Manado FullFC’),1050 where the common law public rights to fish and navigate were separated from other forms of public access.1051 This case related to the interpretation of s 212(2) NTA predominantly in the context of public access to beaches in northern WA. Section 212(2) NTA provided that a law of the Commonwealth or a State/Territory ‘may confirm any existing public access to and enjoyment of…(a) waterways; or (b) beds and banks or foreshores of waterways; or (c) coastal waters; or (d) beaches…’. Such a confirmation meant that the public access would be written into a native title determination such that it would continue to be able to be exercised by members of the public.1052 Therefore, similarly to the Coffs Harbour Case, but in the context of the NTA, public access could co-exist with exclusive native title.
The court in Manado FullFC, in a unanimous joint judgment, held that s 212(2) NTA applied to confirm public access where the interest may arise as a result of ‘an existing common law or statutory right or interest’ or where it may be that such a public access interest is established to have existed ‘as a matter of fact…at the time of the enactment of s212(2)’.1053 In March 2020, Western Australia v Manado (Manado HCA),1054 overturned Manado FullFC by favouring a more generous interpretation of public access in the context of s 212(2) NTA. The majority1055 in Manado HCA held that ‘confirmation of public access…through
1050 Manado v Western Australia (2018) 265 FCR 68 (‘Manado FullFC’). The question in this case was whether public access to the waterways, beds and banks and beaches was ‘existing’ and whether it was, or needed to be, a ‘right’ recognised by the common law or general law, or whether it could arise though ‘custom or convention, or expectation’ and had not been ‘proscribed or abrogated by law’: at 105 [137]. 1051 Ibid 109 [149]. The Aboriginal applicants in Manado FullFC ‘accepted that the public has a right to access and enjoy the areas…for the purpose of exercising the common law public right to fish and to navigate’: at 96- 98 [109]. 1052 Section 212(2) NTA linked to s 225(c) NTA that required native title determinations to include the nature and extent of ‘any other interests’ in the determination area. Section 253 NTA then defined ‘interest’ as ‘(a) a legal or equitable estate or interest in the land or waters; or (b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (i) the land or waters…’. 1053 Ibid 113 [171]. 1054 Manado HCA (n 574). 1055 Ibid. All the judges set aside the orders in Manado FullFC. There was a majority joint judgment (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ) and two separate, agreeing judgments (Nettle and Edelman JJ). Justice Nettle held that ‘the preferable construction of s 212(2) appears to be that it was designed to extend to the ability of members of the public to access and enjoy the foreshore comprised of no more than the lack of prohibition by the State of that access and enjoyment: at [44]. Further, Nettle J determined that ‘“privilege” in the definition of “interest” in s 253 includes the confirmed ability of the public to access and enjoy the foreshore which exists as a result of the lack of legal prohibition on entering upon unallocated Crown land’: at [58]. Justice Edelman held that: ‘The effect of confirmation of the general expectation is to legalise that expectation. The confirmation can operate to legalise “any”, in the sense of “any aspect of the”, general expectation by creating a legal liberty of access that is coextensive with the relevant aspect of the general expectation: at [77]. Therefore, ‘the liberty created by confirmation is a “right” within the broad, but loose, approach taken to “right” in the Native Title Act and described earlier in these reasons’: at [81]. Further, Edelmen J held that ‘… once a law has legally confirmed the general expectations of the public then a legal liberty arises for public access to and enjoyment of 179 legislation enacted in reliance on s 212(2) to constrain the exercise of such native title rights or interests… itself gives rise to a “right” or “privilege” so as to amount to an “interest” in relation to land or water’ as required by the NTA.1056 Their Honours were focused on statutory interpretation and, in particular, parliamentary intention.1057 The majority stated that: ‘The object [of the Commonwealth Parliament]…was to preserve the “principle” of “public access” to beaches notwithstanding the possibility that native title might exist in respect of a particular stretch of beach.’1058 In effect, s 212(2) NTA had the potential to impair exclusive native title akin to the notion of ‘qualified exclusivity’.1059
More broadly, Manado FullFC and Manado HCA give a sense of how two different majorities, in a recent contemporary context, approached a question of co-existing Indigenous rights (in the statutory context of native title) and interests of the public (whether they be described as rights or not). In explaining why s 212(2) NTA appeared to make a ‘clear policy decision…to preserve coastal [public] access’ (emphasis from original), Nettle J made explicit the process of balancing:
the process of transition from pre-Mabo ignorance to post-Mabo recognition of native title rights and interests, and their implementation in accordance with the Native Title Act, necessitated the striking of a legislative balance that would accommodate the public’s
the relevant area. That liberty is a “right ... in connection with ... the land or waters” within the meaning of s 253 of the Native Title Act’: at [66]. 1056 Ibid [9]. 1057 Ibid [3]-[8]. 1058 Ibid [3]. Justice Edelman noted that the parliamentary debates about s 212 NTA revealed ‘a concern about the recognition of native title preventing the public from undertaking the activities that they reasonably expect to be able to undertake in areas generally understood to be public places.’: [67]. This included particular statements about protecting the ‘principle of access to beaches’ (at [68], quoting from Commonwealth, Parliamentary Debates, Senate, 17 December 1993, 5063 (Gareth Evans, Minister for Foreign Affairs)) and ‘Senator Tambling also spoke of the “concern that affects all Australians with regard to the access to all of their beaches” and the risk of “dispossession of beach areas right around Australia”’ (at [69], quoting from Commonwealth, Parliamentary Debates, Senate, 17 December 1993, 5064 (Grant Tambling)). 1059 Section 212(3) NTA provided that: ‘Any confirmation under this section does not extinguish any native title rights and interests and does not affect any conferral of land or waters, or an interest in land or waters, under a law that confers benefits only on Aboriginal peoples or Torres Strait Islanders’. As noted by Edelmen J in his separate, but agreeing judgment in Manado HCA (n 574): ‘…when the Native Title Act was enacted, s 212(3) provided that any confirmation under s 212(2) “does not extinguish or impair any native title rights and interests”. Section 212(3) was amended in 1998 so that the words “or impair” were removed. The reason for the removal of these words was that “the confirmation of ownership or access may technically impair the enjoyment of native title in some respects. For example, public access to a beach may in some cases impair unhindered enjoyment of native title by native title holders”.’: at [78] (references omitted). Also see: at [47] (Nettle J). The second part of s 212(3) about conferral ‘under a law that confers benefits only on Aboriginal peoples or Torres Strait Islanders’ is relevant to the ALRA and the Blue Mud Bay Case. 180
previously assumed liberty to access and enjoy the foreshore while giving statutory effect and protection to native title.1060
The use of the words ‘accommodate’ and ‘previously assumed’ here by Nettle J to describe the transition is more nuanced than the language seen in the earlier parliamentary debates about the AL Act of ‘preserving’ the status quo for the public accessing seas.1061 However, the legislative balancing act and the prioritisation of public interests is the same.
Returning to Yarmirr HCA, Justice Kirby appeared to be trying to separate the theoretical strength of the common law rights to fish and navigate from their contemporary practical operation. In doing so, His Honour was drawing attention to the ways in which these common law public rights could operate concurrently with qualified exclusive Indigenous rights. Justice Kirby was effectively suggesting a compromise similar to the practical outcomes of the Coffs Harbour Case and Manado HCA. It is clear that the lack of relevant common law public rights was an important factor in the outcome of both the Coffs Harbour Case and Manado HCA as opposed to the outcome in Yarmirr HCA.1062 In the context of Yarmirr HCA, Kirby J viewed the relationship as one of practical co-existence of two sets of
1060 Manado HCA (n 574) [47]. 1061 See discussion at: Chapters IV, Part D, Section 3 and V, Part B, Section 2. 1062 Even with the priority given to public access, the outcome of the Coffs Harbour Case caused the NSW Government to introduce a controversial bill that sought to amend the Crown Land Act 1989 (NSW) to ‘ensure that beaches and certain coastal land that are Crown lands remain in public ownership’: Crown Lands Amendment (Public Ownership of Beaches and Coastal Lands) Bill 2014 (NSW). The responsible Minister attempted to argue that the bill was not directed against Aboriginal land claims, but instead that it ‘defends the general principle, widely supported by the community, that our beaches should not be privately owned by anyone’: Michael Safi, ‘New South Wales tries to block Aboriginal land claims on coastal areas’, The Guardian (online, 3 November 2014)
Justice Kirby argued that, given there can be rights of public access over exclusive land tenures, exclusive native title rights that are qualified by the international and public rights should be capable of recognition.1064 The results in the Coffs Harbour Case and Manado HCA would appear to strengthen this argument. It seems that a policy choice was made by the majority of judges in the Yarmirr cases about the special position of common law rights in the sea. Jacinta Ruru labelled this as ‘treating the salt water and salt water covered land as a special juridical space’.1065 Justice Kirby was searching for a compromise that gave some form of recognition to qualified exclusive native title rights; whereas, the majority in Yarmirr HCA were not willing to reconcile third-party rights with any form of exclusive Indigenous interests.
(c) Conclusion on Yarmirr HCA: The Relationship between Settler-State Sovereignty and Inconsistency
In considering why the majority in Yarmirr HCA denied any form of exclusive native title rights it is useful to return to the relationship between settler-state sovereignty and the test of inconsistency. The majority held that exclusive native title rights could not be recognised in the sea because the rights and interests of the settler-state ‘asserted at sovereignty carried with them the recognition of public rights of navigation and fishing and, perhaps, the concession of an international right of innocent passage’.1066 The majority went on to state that these third-party rights were ‘necessarily inconsistent with the continued existence of any right under Aboriginal law’.1067 This is a settler-state assertion of sovereignty through an expression of an obligation to provide third-party rights that appears to use an expansive interpretation of these rights to deny any form of co-existence with exclusive Indigenous rights.
1063 Yarmirr HCA (n 17) 134 [301]. 1064 Ibid 125 [281]. Also see: Secher, ‘Lessons from the Sea, Part Two’ (n 218) 1108: The ‘long-recognised common law public rights of way and common in respect of land have not precluded initial recognition of exclusive native title rights’ to terrestrial areas. 1065 Ruru, ‘What Could Have Been’ (n 1042) 141. 1066 Yarmirr HCA (n 17) 56 [61]. 1067 Ibid. 182
Strelein argued that one way the majority judgment could be read was that the settler-state assertion of sovereignty was ‘inherently limited because the public and international rights referred to come from a source outside the control of the sovereign legal system, therefore constraining the ability of the Crown to recognise native title to the full extent’.1068 Perhaps, as Strelein argues, given the ‘seriousness of the consequences of wrestling sovereignty’, this explanation was defensible.1069 There were third-party rights that could not co-exist with any blanket right of native title holders ‘to say who may enter the area’.1070 However, the majority were expanding the interpretation of those third-party rights as much as possible. In effect, the third-party rights became expressions of broader settler-state control that could not be compromised.1071 As Strelein noted in this latter context, the majority had claimed ‘greater power for the Crown and greater privilege for non-Indigenous interests’.1072
Samantha Hepburn has argued that it seemed that the primary focus of reasoning about public rights was the ‘promotion of domestic and international stability’.1073 As noted by Ruru, the native title rights recognised by the majority in Yarmirr HCA seemed to be ‘little different to the rights enjoyed by all Australians’.1074 The policy choices that the majority made are part of a broader trend of conferring lesser forms of entitlements for Indigenous applicants.1075 Kent McNeil reflected that ‘[d]espite what judges may say about maintaining legal principle’, in the end, the outcome of cases is about the extent to which ‘Indigenous rights can be reconciled with the history of British settlement without disturbing the current political and economic power structure’.1076 The rights recognised by the majority in Yarmirr HCA did not upset the power structure as clear priority was given to international and public rights.
D. Conclusion
This chapter began with a consideration of the emerging conversations that sprung up predominantly in the context of the CZ Inquiry and aftermath of Mabo. The consultancy
1068 Strelein, Compromised Jurisprudence (n 218) 126-127. However, Secher argues, in this context, that if the ‘public rights are in fact restrictions on the Crown’s title, the public rights have no significance for any title not derived from Crown grant’: Secher, ‘Lessons from the Sea, Part Two’ (n 218) 1135. 1069 Strelein, Compromised Jurisprudence (n 218) 132. 1070 Yarmirr HCA (n 17) 68 [99]. 1071 Ibid 68 [100]. 1072 Strelein, Compromised Jurisprudence (n 218) 133. 1073 Hepburn, ‘Native Title Rights in the Territorial Sea and Beyond’ (n 218) 168. 1074 Ruru, ‘What Could Have Been’ (n 1042) 121. 1075 Hepburn, ‘Native Title Rights in the Territorial Sea and Beyond’ (n 218) 171. 1076 Kent McNeil, ‘The Vulnerability of Indigenous Land Rights in Australia and Canada’ (2004) 42 Osgoode Hall Law Journal 271, 300-301. 183 reports and academic work of that time identified challenges in recognising Indigenous rights, such as the severe limitations of sea closures, but also the beginnings of Indigenous- led sea country governance. Further, the consultancy reports produced for the CZ Inquiry revealed articulations of what control meant to Indigenous peoples. In particular, the importance of legal recognition of Indigenous rights to sea country, and the legitimacy and assistance this would provide for Indigenous sea country governance mechanisms, was emphasised. In this context, the potential for native title claims over the sea post-Mabo was part of those emerging conversations, but non-legal commentators were keen to avoid over- reliance on what native title might deliver. The reticence of those commentators appears to have been well placed given the outcome in Yarmirr HCA.
The reasoning of the majority in Yarmirr HCA presents a complex juxtaposition. Despite uncertainty as to the legal technicalities of the extent that common law applied below the low water mark, the majority found that native title could exist below the low water mark. This demonstrated an acceptance that the court should, at least, be allowed to consider whether Indigenous interests could be recognised in sea country. The majority also defined an assertion of settler-state sovereignty (the right to legislate) that allowed room for other interests to co-exist. On the other hand, the majority made a clear policy choice that native title rights could not be exclusive due to the existence of third-party international and common law rights that the settler-state had to accommodate. The majority’s decision demonstrated that the settler-state’s assertion of sovereignty was expressed through an obligation to protect third-party, non-Indigenous rights.
In terms of reconciling sovereignties, there were three important points of contestation in the Yarmirr cases. The first was Olney J’s finding at trial that there was no factual evidence of exclusive native title rights to the sea. This finding was based on Eurocentric concepts of occupation and possession. As Justice Kirby noted, the court had the opportunity here to view these questions with an openness to sui generis Indigenous assertions. However, the majority in all the Yarmirr cases did not choose to do this and instead relied upon settler-state legal concepts that were inadequate to provide a factual reconciliation between Indigenous and settler-state interests.
The second was the Commonwealth’s submission, maintained at every level of appeal, that native title could not exist below the low water mark. As noted, this was the strongest expression by the settler-state of a denial of compromise between settler-state and Indigenous
184 interests seen throughout the episodes of this thesis. In a practical sense, the Commonwealth made a deliberate choice to argue that no native title rights to the sea could be recognised. Finally, the third was the majority’s finding that no form of exclusive native title rights could be recognised even though they were presented, by both the claimants and Kirby J, with a form of compromise: qualified exclusivity. Qualified exclusivity presented a compromise that recognised the potential for exclusivity of Indigenous rights but gave the third-party common law rights priority over Indigenous rights when necessary. The third-party rights would not suffer any detriment and the status quo, in that sense, would be maintained. Instead, the majority expanded their interpretation of those third-party rights, as much as possible, and were not open to considering any form of more sophisticated reconciliation.
This finding of non-exclusive rights had a particular impact on the conversation about sea country rights and governance going forward. As noted in a report prepared by the NLC in 2004 (between Yarmirr HCA and the Blue Mud Bay Case), native title rights alone were ‘not sufficient to address the fundamental issues of customary authority and equity’ that had been raised by the communities.1077 In fact, the report suggested that the ‘minimalist legal interpretation’ of sea country rights offered by native title had ‘distracted marine policy makers from seriously negotiating satisfactory management arrangements, enterprise partnerships and equitable resource sharing’.1078 It appears that the word ‘distracted’ here was perhaps a more generous way of suggesting that the determination in Yarmirr HCA, of non- exclusive native title rights, might have had the effect of narrowing the conversation about sea country rights and governance from the settler-state perspective. While recognition of legal rights can provide legitimacy, the corollary was that when exclusive rights were not recognised this had the potential to limit what the settler-state felt compelled to negotiate with Indigenous peoples. However, as will be seen in Chapter IX,1079 the Indigenous-led governance organisations referred to in the CZ Inquiry, like Dhimurru, forged ahead and kept negotiating.
The possibility of recognising exclusive Indigenous rights to sea country was considered again in the Blue Mud Bay Case. This case had a different context as it related to statutory
1077 Northern Land Council, Living on Saltwater Country: Goulburn Island to the QLD Border Sea Country Management Needs and Issues (Consultation Report prepared for the National Oceans Office, 2004) 27
186
VII. EPISODE FOUR: THE LEGAL TURNING POINT ON EXCLUSIVE RIGHTS—THE BLUE MUD BAY CASE
A. Introduction
In 2008, the Blue Mud Bay Case held that entry onto waters over Aboriginal land, for a purpose such as fishing, required permission from the relevant Aboriginal Land Trust.1080 The majority in the High Court held that pursuant to the ALRA, land in the intertidal zone in the NT could be recognised as ‘Aboriginal land’. Under the statutory land rights system in the NT, ‘Aboriginal land takes the form of inalienable fee simple, which the High Court has confirmed is the practical [legal] equivalent of full ownership’.1081 The High Court held that Aboriginal land extended to include so much of the water and atmosphere as lay above the land surface within the boundaries of the relevant ALRA grant down to the low water mark. Therefore, the majority determined that relevant Aboriginal Land Trusts effectively had control over who entered the intertidal zone for the purposes of fishing and public navigation. This case applied to approximately 85% of the coast of the NT.1082
In the space of seven years between 2001 and 2008, the High Court went from finding that no exclusive native title rights could be recognised to waters in Yarmirr HCA, to making a determination of exclusive Aboriginal control over who entered the intertidal zone, for the purposes of fishing and navigation, in the Blue Mud Bay Case. These two cases involved separate legislative regimes: native title in Yarmirr HCA and the ALRA in the Blue Mud Bay Case. This distinction is important for two reasons. First, the ALRA focused the question on the contemporary situation, rather than the historical focus of native title law on the time of asserted acquisition of Crown sovereignty. As will be discussed in this chapter, this meant that the interpretation of public rights was different. Second, the ALRA provided for stronger legal rights in the form of a fee simple estate. However, the different legal underpinnings do not lessen the shift in the reconciliation of interests that took place. The Blue Mud Bay Case demonstrated the compromise that settler-state law and the courts were capable of; Aboriginal rights could take priority over public rights.
1080 Butterly, ‘A Tireless Fight’ (n 365). 1081 Butterly, ‘A decade on: What happened to the historic Blue Mud Bay Case (and why is it in the news again)?’ (n 4). Also see: Blue Mud Bay Case (n 1) 63-64 [50]. 1082 See (n 8). 187
In Gumana FC1083 (the trial hearing of the Blue Mud Bay Case), the Yolngu people presented strong evidence that they were attempting to control their sea country both in accordance with Yolngu rom, Indigenous laws and customs of the Yolngu, and their understanding of relevant settler-state laws, particularly the ALRA and the terms of their land grant. In this dual legal context, these Indigenous assertions of control were premised on both Indigenous laws and inter-societal acceptance of Indigenous rights. Further, as was expressed by Frances Morphy, a linguist who was an expert witness in Gumana FC, the Yolngu people saw the ALRA as an acknowledgement of fact by the settler-state that Crown sovereignty was imposed on them without their consent.1084 In this context, Frances Morphy noted that Yolngu people saw the process of claiming rights as ‘about the issue of sovereignty - at least in the sense of the recognition of the jurisdiction of Yolngu “law”’.1085 It appears that the evidence presented in Gumana FC was not just about seeking legal rights that would fit within settler-state conceptions, but also about explaining what sovereignty meant from the Yolngu perspective (and what the relationship between Yolngu and non-Indigenous assertions of sovereignty looked like in the contemporary context).
This chapter has four parts. Part B explores the Yolngu claim to control and how this was received at trial. Part B is split into three sections: an exploration of the legal dispute that led to the Blue Mud Bay Case; a consideration of the relationship of Yolngu rom, assertions of Aboriginal sovereignty and the ALRA as it was represented in the trial hearing; and, finally, an analysis of how Justice Selway dealt with the issue of factual exclusive possession in Gumana FC (particularly as compared to Justice Olney in Yarmirr FC).
Parts C, D and E are then quite heavily doctrinal. They seek to explain the legal turning points that gave rise to the High Court in the Blue Mud Bay Case determining that the ALRA permitted an Aboriginal Land Trust to have control over who entered the intertidal zone. Part C examines the legal meaning of a grant of fee simple pursuant to the ALRA. In particular, this part considers the impact on the public right to fish of a grant of fee simple over the land in the intertidal zone. Part D then focuses on whether there was a contemporary public right to fish in the NT context and how it potentially interacted with Aboriginal rights. Finally, Part E analyses the relationship between the ALRA and the NT fisheries legislation. The re-
1083 Gumana FC (n 72). 1084 Ibid 465-466 [19] and Frances Morphy, ‘Performing Law’ (n 2) 32. 1085 Frances Morphy, ‘Performing Law’ (n 2) 32. Morphy made this comment in the context of the native title process. However, given she was talking about the ALRA in the same paragraph, it seems the same sentiment can also apply to claiming rights pursuant to the ALRA. 188 conceptualisation of these three legal issues was part of what led to the outcome in the Blue Mud Bay Case. The Blue Mud Bay Case effected a legal reconciliation of Indigenous interests with third-party interests that disturbed the contemporary structure of authority in the intertidal zone of the NT.
B. Seeking Control: Yolngu Rom (Yolngu Law) and the ALRA1086
Blue Mud Bay is a large, shallow bay on the eastern coast of Arnhem Land. The Yolngu people are the Traditional Owners of Blue Mud Bay and the parts of Arnhem Land surrounding the bay. The claim of the Yolngu people to exclusive control of fishing in the intertidal zone stemmed from both the legal background to the Blue Mud Bay Case and the broader Yolngu view of their sovereignty.
1. Strangers in Blue Mud Bay: The Legal Dispute
In 1980, pursuant to the ALRA, the Governor-General executed deeds of grant of an ‘estate in fee simple’ in land to the Arnhem Land Aboriginal Land Trust (‘Arnhem Land Trust’).1087 The grant extended to the low water mark and, therefore, included the area of the intertidal zone. The intertidal zone was associated with barramundi and mud crab fishing by non- Indigenous people.1088 In the mid-1990s, the Yolngu community noticed ‘strangers’,1089 a term that is now familiar in this context, entering and taking fish and crabs in the intertidal zone of Blue Mud Bay.1090 The community took action to inform those strangers that they required permission from the Traditional Owners. Traditional Owners were enforcing the
1086 Some aspects of Parts B-E of this chapter were discussed in: Butterly, ‘A decade on: What happened to the historic Blue Mud Bay Case (and why is it in the news again)?’ (n 4). 1087 Gumana FC (n 72) 465-466 [19]. 1088 Transcript, NT v Arnhem Land Aboriginal Land Trust (n 8) 2205 (Melissa A Perry QC). In a 2019 report, the then Aboriginal Land Commissioner, Justice Mansfield, stated that there were ‘currently 14 Barramundi Licences…and 49 Mud Crab licences in the Northern Territory, none of which are geographically restricted except in respect of those areas closed to commercial fishing under the Barramundi Management Plan and the Mud Crab Fishery Management Plan’: Commonwealth, Office of the Aboriginal Land Commissioner, Report on Review of Detriment: Aboriginal Land Claims Recommended For Grant But Not Yet Finalised (2019) 98
The legal dispute that eventually led to the Blue Mud Bay Case arose in 1996 or 1997.1092 There was a difference in opinion between the NLC and the NT Director of Fisheries about whether the Director could issue fishing licences that allowed licence holders to fish in, and enter, the intertidal zone.1093 Section 70 of the ALRA provided that a person shall not enter or remain on Aboriginal land. There was a penalty for violating s 70, but there were also some defences that could be claimed. Section 70(2A) ALRA set out that it was a defence to a penalty under s 70 that the person entered or remained on the land in accordance with a law of the NT. Therefore, the relevant questions for the court were: was fishing in those waters to enter or remain on Aboriginal land pursuant to s 70; and if a person held a fishing licence, was that a defence to a contravention of s 70 (in that they entered or remained on the land in accordance with a law of the NT)? These questions involved a contest between two settler- state assertions of governmental authority in the form of two pieces of legislation: the ALRA and the Fisheries Act 1988 (NT) (‘Fisheries Act’). However, the ALRA was beneficial legislation that had the express purpose of providing land rights to Aboriginal people.
2. The Relationship between Yolngu Rom, Aboriginal Sovereignty and the ALRA
The Yolngu people in Blue Mud Bay considered that European sovereignty was ‘imposed without their consent’.1094 As Justice Selway stated in Gumana FC, this case was the ‘latest aspect of a more protracted campaign’.1095 The Blue Mud Bay Case was part of a sustained interaction between the settler-state colonising institutions and the Yolngu people that revealed the strength, resilience and persistence of the Yolngu community, and Yolngu rom, in the face of a system that, both inside and outside the courtroom, emphasised the power of settler-state law.1096
1091 Further, Marcus Barber noted that both the ALRA and the remoteness of the area (its distance from coastline that is controlled by non-Aboriginal people) were fundamental to the relationships of Yolngu people to crabbers: Barber, ‘Where the Clouds Stand’ (n 2) 192. 1092 Blue Mud Bay Case (n 1) 52-53 [10]. 1093 Ibid. 1094 Frances Morphy, ‘Performing Law’ (n 2) 32. The broader history of the Yolngu people’s fight to have their land and cultural rights recognised by the settler-state was discussed in Chapter IV, Part B. 1095 Gumana FC (n 72) 514 [213]. 1096 Frances Morphy and Howard Morphy, ‘The Blue Mud Bay Case: Refractions through Saltwater Country’ (2009) 28(1) Dialogue 15, 15. 190
Frances Morphy noted that, even from a settler-state legal perspective, the Yolngu people started Gumana FC in a position of strength.1097 The ALRA grant to their land was a much stronger form of state law legal title than native title. Beyond the ALRA, Yolngu demonstrated the strength of their case by bringing to the court a ‘coherent, consistent and convincing’ account of Yolngu rom, and a ‘strong view of themselves as uncolonized subjects’.1098 The Yolngu used a variety of subtle strategies to insert a discourse about Indigenous sovereignty into the court process.1099 Frances Morphy’s analysis of the hearing of the Gumana FC trial identified several places where Yolngu rom was performed in the settler-state spaces of the court, and noted an overall insistence that Yolngu rom was different and needed to be understood on its own terms.1100 It seems that the strategic intent of these performances was to explain the prominence and power of Yolngu rom in day to day life and, in doing so, to demonstrate the continuing assertion of the sovereignty of Yolngu rom that co- exists with the assertion of settler-state sovereignty. As noted in the introduction to this chapter, the Yolngu people were ‘making statements about sovereignty, not simply about “rights”’.1101
One example of the performance of Yolngu rom came through the site visit where the court, including the judge, the court staff and all the lawyers and experts, went out on sea country in a boat. The trial was held at a time of year where the weather was normally good because the Mungurru (the body of the deep water)1102 was calm.1103 However, the day of the site visit the seas were so rough that the boats had to turn back. Several Yolngu people stated that the Mungurru was upset by having so many strangers there.1104 Frances Morphy noted that at least ‘some of the non-Yolngu who experienced the power of the Mungurru on that day were prepared to acknowledge’ the strength of the Yolngu belief.1105 This was an example of an element of Yolngu rom that could not be controlled by humans. Therefore, settler-state law,
1097 Frances Morphy, ‘Performing Law’ (n 2) 56. 1098 Ibid. 1099 Ibid. 1100 Ibid. Morphy’s work is specific to this case, but there is broader (predominantly anthropological) literature about the way law is performed by Indigenous peoples in the settler-state court setting. For example: Williams (n 388) (particularly Chapter 10) and Glaskin (n 28). Glaskin particularly noted in her book that the larger historical context and legal strategies often remain invisible: at 7-8. 1101 Frances Morphy, ‘Performing Law’ (n 2) 44. 1102 For a more detailed explanation of Mungurru see: Morphy and Morphy, ‘Tasting the Waters’ (n 260) 70 and Barber, ‘Where the Clouds Stand’ (n 2) 141. 1103 Frances Morphy, ‘Performing Law’ (n 2) 50-52. 1104 Ibid 52. The next day in court, evidence was given about the Mungurru and that ‘maybe the country didn’t want us, or the sea didn’t want us’. 1105 Ibid. 191 which was made and enforced by humans, could not have ‘sovereignty over rom, no matter what the mundane power relations hold, in a political sense, between the two communities’.1106
It appears that the evidence presented by Yolngu people in Gumana FC, and the associated experiences of the court (and its actors, such as the judge), was about demonstrating spiritual authority over sea country that was incommensurate with a version of settler-state sovereignty that was monopolistic. Yolngu rom was presented as generating underlying principles of governance that included the ability to control who enters, and to make decisions about, sea country.1107 This case was not just about seeking legal rights to the sea that would fit within settler-state conceptions. It was also about explaining what control meant from the Yolngu perspective.
3. Control, Permission and Exclusivity
At trial, in summarising the history of the legal proceedings, Selway J described the Blue Mud Bay community’s determination to ‘seek to control’ fishing activity in their waters.1108 In this context, Selway J had to make factual determinations about permission to enter sea country, and its relationship to exclusive control, similarly to Olney J in Yarmirr FC.1109 However, Justice Selway reached the opposite conclusion of Justice Olney. Justice Selway determined that the permission requirements continued, in some form, and that factual exclusivity had been established.
In this context, Selway J held that: ‘The evidence of the Yolngu witnesses was clear – permission [was] required as a matter of Yolngu law’.1110 Further, His Honour stated that the anthropologists agreed that permission was required.1111 Similarly to the approach of Justices Woodward,1112 Toohey1113 and, in this particular context, Olney,1114 Selway J took a broad approach to how permission might be represented. Justice Selway noted that sometimes it could be assumed, where there were particular relationships, but that it was clear that it could
1106 Ibid. 1107 Ibid 54. 1108 Gumana FC (n 72) 466 [21]. 1109 See discussion at: Chapter VI, Part C, Section 2(b). 1110 Gumana FC (n 72) 512 [206]. 1111 Ibid. 1112 See discussion at: Chapter IV, Part C, Section 1. 1113 See discussion at: Chapter V, Part C. 1114 See discussion at: Chapter VI, Part C, Section 2(b). 192 also be withdrawn.1115 Counsel for the NT referred Selway J to the factual findings of Olney J about permission.1116 In response, Selway J briefly noted that: ‘I can only assume that his Honour was faced with different evidence to that which is before me’.1117 Factual findings are difficult to compare in this respect but Justice Olney’s findings on exclusivity appeared to be focused on the apparent lack of requirement for non-Indigenous people to seek permission.1118
In line with Olney J’s approach, the NT in Gumana FC argued that permission was only required for Indigenous people and not for non-Indigenous people.1119 Therefore, the NT submitted that Yolngu people had not proved exclusive rights. Justice Selway answered this submission by emphasising that the Yolngu people had ‘used what means were available to them to assert their rights’ including, prior to the 1930s, force and then political and legal steps.1120 Selway J concluded this point by stating that: ‘For my part it is difficult to imagine what more the Yolngu people, including the claim groups, could or should have done lawfully to enforce their rights’.1121 Justice Selway took a different approach to Justice Olney. His Honour determined that ‘practical enforcement or exclusion was not the issue, but rather the fact of whether or not the Aboriginal traditional law and custom existed and continued to be acknowledged and observed’.1122
This was similar to the approach that Justice Kirby was advocating in Yarmirr HCA that sought to first identify if the claimed rights survived, in fact, and then explore their relationship with the other rights and interests in the sea.1123 As noted in the previous chapter,1124 such an approach involves a reconciliation of interests that acknowledges the ill- fitting nature of settler-state concepts to describe Indigenous relationships to the sea and the historical context that these Indigenous assertions were made within. Justice Selway emphasised the strength of the Yolngu people’s enforcement of their rights, by whatever means were available to them, in the face of colonisation.
1115 Gumana FC (n 72) 512 [206]. 1116 Ibid 514 [214]. 1117 Ibid. 1118 See discussion at: Chapter VI, Part C, Section 2(b). 1119 Gumana FC (n 72) 514 [213]. 1120 Ibid. 1121 Ibid. 1122 Bartlett, ‘Native Title Rights to Exclusive Possession’ (n 979) 97. 1123 Yarmirr HCA (n 17) 137-138 [309]. 1124 See discussion at: Chapter VI, Part C, Section 2(b). 193
After a finding of factual exclusivity, the next consideration is the legal findings on exclusivity. In this context, Justice Selway was in a difficult position. The Yarmirr cases had involved a native title claim that included some waters that were over the intertidal zone but not a claim to the submerged land; in effect, a claim to the waters above ALRA land but not to the ALRA land itself.1125 It appears that this was done, on a practical level, to exclude anything already granted under the ALRA. However, it raised a question about whether this separation, if it was relevant, could impact the interpretation of how the ALRA grant operated. Did the ALRA grant give the Arnhem Land Trust control over the presence of others regardless of whether the intertidal area was covered by waters or not?
Justice Selway identified that the majority in Yarmirr FullFC seemed to conclude that a grant under the ALRA did not authorise the holders of the fee simple to exclude others from the waters in the intertidal zone.1126 This was obiter dicta as the court in Yarmirr FullFC did not have to make a binding decision on this point. The court in Yarmirr HCA did not deal with this particular issue on appeal, again because it did not need to make a binding decision, which left the determination of Yarmirr FullFC as the relevant authority.1127 Justice Selway stated that if he was free from authority he would have thought that an ALRA grant would give a right of exclusive possession ‘including a right to exclude those seeking to exercise a public right to fish or to navigate’.1128 However, His Honour held that he was required, by Yarmirr FullFC, to hold that an ALRA grant did not confer on the Arnhem Land Trust the ‘exclusive right to control access to the sea over the tidal foreshore and/or that persons exercising public rights … can come onto the inter-tidal zone without breaching’ the ALRA.1129 The question of what a fee simple grant meant in the context of the intertidal zone generally, as well as in the ALRA specifically, was relatively novel in the Australian legal context.
1125 Gumana FC (n 72) 483 [74] and Yarmirr FC (n 36) 546 [27]. 1126 Gumana FC (n 72) 483-484 [76]-[77]. Also see: Yarmirr FullFC (n 225) 221-222 [201]-[203]. 1127 Gumana FC (n 72) 484 [78]. 1128 Ibid 483 [73]. Also see: at 478-482 [69]. 1129 Ibid 484 [80]. 194
C. What did a Fee Simple Grant Mean in the Context of the Waters of the Intertidal Zone?1130
The grant to the Arnhem Land Trust was for an ‘estate in fee simple’ to the low water mark. The term fee simple was not defined in the ALRA. Justice Woodward had stated in his Second Report that a new form of statutory title, known as Aboriginal title, could be created; but that if title was expressed as fee simple then ‘all the normal incidents of such title would be known’ and this would resolve any doubts about the applicability of general (settler-state) law.1131 In Australian law, fee simple grants conferred the ‘widest powers of enjoyment in respect of all the advantages to be derived from the land itself and from anything found upon it’.1132 Fee simple was ‘the local equivalent of full ownership’.1133
The granting of fee simple estates in Australia below the low water mark was rare, and how the concept of fee simple applied to waters in the intertidal zone presented difficult questions.1134 There had been cases and commentary in common law jurisdictions on what sort of property rights would be competent to limit the public right to fish in tidal waters, but these were mostly focused on tidal rivers where fee simple ownership of submerged land was more common.1135 The general gist was that where there were private interests, the ‘presumption in favour of the public right to fish is … likely to be given little weight’.1136
One thing that was clear, from a property law perspective, was that the question raised in the Blue Mud Bay cases1137 was not about ownership of the waters (which were not capable of being owned in Australian property law).1138 Rather, it was a question of the extent to which a
1130 Aspects of Parts C-E of this chapter were discussed in Butterly, ‘Changing Tack’ (n 200) 8-9. 1131 Woodward Commission Second Report (n 457) [72]. For a more general discussion of Justice Woodward’s Second Report and the Woodward Commission see: Chapter IV, Part C. 1132 Wik Peoples v Queensland (n 983) 226 (Gummow J). 1133 Ibid 285 (Kirby J). 1134 Kailis (n 210) 119 and Gullett, Fisheries Law in Australia (n 209) 86. 1135 For example: Walrut (n 210) and, in the context of how it interacts with Indigenous rights (particularly in lakes): Mark Walters, ‘Aboriginal Rights, Magna Carta and Exclusive Rights to Fisheries in the Waters of Upper Canada’ (1998) 23(2) Queen’s Law Journal 301. In a non-Indigenous context, there was one particularly relevant case in the Supreme Court of WA, where it was held that the legislative purpose behind a provision that had given a transfer of land to the foreshore and seabed of Coogee beach (south of Perth) was to ‘defeat such common law rights regardless of how one seeks to characterise the Minister’s position prior to disposition of the land’: Re MacTiernan; Ex Parte Coogee Coastal Action Coalition (2005) 30 WAR 138, 161 [93] (McLure JA). Justice Pullin noted in his separate (agreeing) reasons that this grant was equivalent to fee simple: 162-163 [107]-[108]. 1136 Kailis (n 210) 119. 1137 Gumana FC (n 72), Gumana v Northern Territory (2007) 158 FCR 349 (‘Gumana FullFC’) and Blue Mud Bay Case (n 1). 1138 Blue Mud Bay Case (n 1) 64 [52]. Also see: Gumana FullFC (n 1137) where the court labelled this issue a distraction: 373 [92]. 195 holder of a fee simple interest could control waters above their land by excluding others. In these particular cases, it was about whether the ALRA created a statutory regime, on the landward side of the ‘metes and bounds’ of the land grant, that gave the Arnhem Land Trust control over the presence of others regardless of whether the area was covered by tidal waters or not. The potential impact of the ALRA grant on public rights opened policy choices about whether property rights granted to Indigenous peoples would have to be read down in order to avoid a major change in the governance structure that applied to the intertidal zone. The potential for high level tensions, between Aboriginal people and non-Indigenous fishers, was foreseeable.1139
As noted above,1140 Justice Selway in Gumana FC identified that the majority in Yarmirr FullFC seemed to conclude that a grant under the ALRA did not authorise the holders of the fee simple to exclude others from the waters in the intertidal zone.1141 However, this conclusion in Yarmirr FullFC appears to have been directly related to the way the native title claim in that case was formulated. Continuing this separation had the potential to entrench, in the ALRA context, a version of a settler-state boundary between land and sea in the intertidal zone. This boundary could have been a way of enforcing particular structures of control and would have had real consequences for those, such as the Yolngu people, who transgressed by making claims that did not respect those binaries.1142
The turning point on this issue came in Risk HCA1143 where the majority stated in obiter that if a claim to the seabed below the low water mark had been allowed, it would have appeared to permit an Aboriginal Land Trust to control access to the waters above.1144 Before moving to examine Risk HCA, it is important to briefly analyse the approach of two intervening cases to this issue. Soon after the legal dispute arose between the NLC and the Director of Fisheries,1145 and prior to lodging the Gumana FC case, another set of proceedings were initiated. Arnhem Land Aboriginal Land Trust v Director of Fisheries NT (‘Land Trust FC’)1146 proceeded before Mansfield J by way of a series of preliminary agreed questions of
1139 Gullett, ‘Up the Creek’ (n 209) 9. 1140 See discussion at: Part B, Section 3 of this chapter. 1141 Gumana FC (n 72) 483-484 [76]-[77]. Also see: Yarmirr FullFC (n 225) 221-222 [201]-[203]. 1142 Morphy and Morphy, ‘Refractions through Saltwater Country’ (n 1096) 17-18. This article contains some commentary on the ways in which Yolngu people create other forms of boundaries in their sea country (such as clan ownership). 1143 Risk HCA (n 579). 1144 Ibid 405 [32]. 1145 See discussion at: Part B, Section 1 of this chapter. 1146 Arnhem Land Aboriginal Land Trust v Director of Fisheries NT [2000] FCA 165 (‘Land Trust FC’). 196 law. Justice Mansfield’s determination was then appealed to the Full Federal Court in Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (‘Land Trust FullFC’).1147 Both the Land Trust cases1148 considered whether the ALRA grant permitted the Arnhem Land Trust to control access to the waters over the intertidal zone. Appendix 1 to this thesis sets out a chronology of important cases.
In Land Trust FC, Mansfield J held that there was no positive indication in the ALRA, or relevant extrinsic materials, that a grant would abrogate the public right to fish.1149 This approach required the ALRA grant to specifically indicate that it would abrogate the public right to fish, rather than analysing whether a fee simple grant would abrogate public rights to fish. On appeal, in obiter, Sackville J (Spender and Merkel JJ agreeing) in Land Trust Case FullFC stated that there were ‘obstacles in the path of accepting the … contention that the grant of the fee simple estate to the Arnhem Land Trust, of itself, carried with it exclusive rights to fish in the Waters’.1150 This reframes the question to being one of exclusive rights of Aboriginal people to fish rather than one about whether the Arnhem Land Trust was permitted to control access to the waters. However, on a practical level both of those frames have a similar effect. Justice Sackville went on to state:
That contention [that the ALRA grant carried with it exclusive rights to fish] is not easy to reconcile with the legislative history of the Land Rights Act, which tends to suggest that the fee simple estate granted pursuant to s 12(1) carried “all the normal incidents of such title” (to use the language of the Second Report: see [45] above). If that is correct, it would seem to follow that the Arnhem Land Trust’s right to
1147 The preliminary answers were appealed, and the Full Federal Court determined that it was not appropriate to answer the questions without factual evidence: Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 (‘Land Trust FullFC’). A full trial of evidence was then never pursued. Instead, the applicants used the experience of those proceedings to narrow the issues and lodge the Blue Mud Bay Case litigation: Gumana FC (n 72) 468 [26]. 1148 Land Trust FC (n 1146) and Land Trust FullFC (n 1147). The Land Trust cases were occurring across a similar time period as the Yarmirr cases which were determined in 1998 (Yarmirr FC), 1999 (Yarmirr FullFC) and 2001 (Yarmirr HCA). The Land Trust cases were both determined after Yarmirr FullFC, but before Yarmirr HCA and before Risk HCA. See: Appendix I: Chronology of Important Cases. 1149 His Honour submitted that: s 73(1)(d) ALRA created one regime of sea closures that was intended to apply to all seas and the intertidal zone should not be treated differently (Land Trust FC (n 1146) [39]-[46]); several Aboriginal Land Commissioner reports stated that the public right to fish should not be impacted by an Aboriginal land grant down to the low water mark (at [33]-[34]) (in relation to this point also see Report on Review of Detriment (n 1088) 66 where the then Aboriginal Land Commissioner stated ‘Commissioners have generally considered detriment in light of the belief that the common law public right to fish would be retained in respect of waters overlying Aboriginal land’); and the term ‘land’ in the ALRA did not encompass waters (at [26]-[27]). 1150 Land Trust FullFC (n 1147) 525 [156]. 197
“enjoy the exclusive right of fishing in [the Waters] or to grant such a right to another as a profit a prendre is qualified by the paramount right to fish vested in the public”: Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314, at 329, per Brennan J (with whom the other members of the Court agreed)… [emphasis as in original]1151
Justice Brennan stated in Harper v Minister for Sea Fisheries (‘Harper’)1152 that the ‘right of the owner of the soil over which the waters flow (whether the owner be the Crown or not) … is qualified by the paramount right to fish vested in the public’ (emphasis added).1153 In Harper, the state (in that case, Tasmania) was the ‘owner’ of the submerged land.1154 Therefore, the question of whether fee simple grants should be treated differently to Crown ownership was not the focus of the court. The approach of Sackville J in Land Trust FullFC suggested that a proprietary right, granted through legislation, should yield to a common law right that ‘only restricts the use of prerogative (not legislative) powers’ of the settler-state.1155 Justice Sackville’s reasons demonstrate that there were differences in judicial opinion in relation to what a fee simple grant meant in the context of the sea. His Honour had applied a particular interpretation to fee simple grants over lands covered by waters and that included ALRA grants. Further, the reasoning of Sackville J was such that, from His Honour’s perspective, the ALRA fee simple grant was subject to the same limitations from the public right to fish as the settler-state’s underlying asserted ownership of the intertidal zone.
Risk HCA examined this issue through questions from the judges during the hearing and in obiter. It was clear that the court did not have to answer these questions, but some of the judges thought them of sufficient importance to make comments. In 1999, the NLC lodged a land claim pursuant to the ALRA over 10,000 square kilometres of the seabed below the low water mark surrounding Darwin.1156 This claim was rejected by the Aboriginal Land Commissioner and was then challenged in the Full Federal Court1157 and appealed to the High
1151 Ibid. 1152 Harper (n 1030). 1153 Ibid 329 [10] (Brennan J). 1154 However, there was an argument that Tasmania was not the owner of the ‘solum of the sea bed’: Storey (n 923) 4-5. The High Court did not need to decide the ownership question because ‘the competence of a State legislature to make laws regulating a right of fishing in such waters is not dependent upon the State’s possession of a proprietary right in the bed of the seas or rivers over which such waters flow’: Harper (n 1030) [10] (Brennan J). 1155 Gullett, Fisheries Law in Australia (n 209) 93. 1156 Risk HCA (n 579) 398 [3]. The claim included parts of Fog Bay and Beagle Gulf to the west and Van Diemen Gulf to the east. 1157 Risk v Northern Territory (2000) 105 FCR 109 (‘Risk FullFC’). 198
Court (the ‘Risk cases’).1158 All seven judges of the High Court dismissed the claim to the seabed below the low water mark.1159 However, the consideration of these issues revealed further questions about the interpretation of ALRA grants.
The majority in Risk HCA noted that there were legal issues that had been drawn to their attention that were unresolved.1160 In the obverse to Yarmirr FC, the claim in the Risk cases was made on the basis that it was to the seabed, argued to be ‘land’, and not the waters. The majority in Risk HCA noted that a claim to the seabed below the low water mark seemed very narrow if it did not ‘permit the grantee to prevent the exercise of public rights to fish or to navigate in the waters above that part of the seabed’.1161 On a practical level, particularly where the water is deep, only limited use can be made of the seabed itself. Justice Kirby asked at the hearing if the reason for not claiming the waters was ‘in order that the shock and horror will be assuaged and that people will not be so terrified that the common law rights to navigation or fishing would be imperilled?’1162
During the hearing, Chief Justice Gleeson and Justices McHugh and Kirby asked clarifying questions about whether a grant in fee simple would abrogate the public right to fish.1163 The barrister for the NLC stated that there was other case law (presumably referring to the Land Trust cases) that had determined that the public right to fish would survive an ALRA grant in
1158 Chronologically, the Risk cases fell either side of Aboriginal Land Trust FullFC (n 1147) and Yarmirr HCA (n 17), with Risk FullFC being determined before, and Risk HCA being determined after, those cases came down. See: Appendix I: Chronology of Important Cases. 1159 The majority expressed three reasons why the term ‘land’ did not extend to the sea: the textual indications in the ALRA that land did not include the seabed; the nature of the interest granted, which included an entitlement to ‘forage’ and use for occupation, suggested that the seabed was not land as it could not be used in such ways; and the relevant extrinsic material and legislative history of s 73(1)(d) ALRA demonstrated that the way that sea was dealt with in the ALRA was by sea closures: Risk HCA (n 579) 403 [25]. The majority noted that Indigenous peoples did not separate land from sea, but the ALRA had done so, and that was conclusive. Justice Merkel in dissent in Risk FullFC was the only judge that determined that there could be a wider reading. His Honour held that s 73(1)(d) ALRA provided just one way that the legislation applied to the sea, but the legislation had not expressly limited other claims: Risk FullFC (n 1157) 133 [70]. 1160 Risk HCA (n 579) 405 [32]. The first issue was whether a grant in fee simple to land under waters would mean that the owner could prevent others exercising the public right to fish in the waters above. The second, and interrelated, question was how the statutory prohibition in the ALRA against entering or remaining on Aboriginal land would be interpreted with respect to any waters that might fall within an ALRA grant. 1161 The majority noted that if a claim was being made to ‘forage’, this would seem ‘contrary to any narrow understanding of the subject of the present claim as being only the seabed, as distinct from the superjacent waters’: Risk HCA (n 579) 405 [32]. The High Court was suggesting that forage would at least include fishing. See the exchange between Justice McHugh and John Basten QC (representing the Land Trust) at Transcript of Proceedings, Risk v Northern Territory [2002] HCATrans 102, 1465 ff. Also see: Blue Mud Bay Case (n 1) 65- 66 [57]. 1162 Transcript, Risk v NT (n 1161) 1795-1800 (Justice Kirby). 1163 Ibid 1465-1585 (Chief Justice Gleeson, Justice McHugh and John Basten QC) and 1795-1815 (Justice Kirby and John Basten QC). 199 fee simple.1164 Chief Justice Gleeson responded to this by stating: ‘Forget about this case and forget about Aboriginal title. Where have the public got a right to fish?’1165 Justice McHugh added: ‘it would be a strange sort of fee simple which was subject to public use’.1166 These questions seemed to suggest that a fee simple grant would abrogate the public rights to fish.
The High Court majority observed in obiter that there was nothing in the ALRA that ‘appears to limit the rights of the holder of an estate in fee simple in land granted under the Act to rights over only the solid substance of the earth’s crust, as distinct from those parts of the superjacent fluid (be it liquid or gas) which can ordinarily be used by an owner’.1167 Further, and relevantly, the majority stated that if the claim had been allowed in that case, and a grant in fee simple was made to the seabed below the low water mark, it would have followed that such a grant would ‘appear to permit [a Land Trust] to control access to the superjacent waters’ including those exercising the public right to fish.1168
The obiter and questions asked by the judges during hearing in Risk HCA gave the impetus to continue to push this issue initially in Gumana FC.1169 This obiter in Risk HCA was also the first step towards the potential for a new form of legal and governance arrangements, substantially controlled by Indigenous peoples, in the intertidal zone. However, this obiter in Risk HCA did not play a determinative role in the Blue Mud Bay Case because in that case the majority held that the public right to fish had been abrogated.
D. Is There a Contemporary Public Right to Fish?
The legal issues presented in the Blue Mud Bay Case required a contemporary analysis of the public right to fish. By the time the Blue Mud Bay Case reached the High Court, the discussion of the majority on this matter was succinct. The majority concluded that, by necessary implication, the Fisheries Act had abrogated any public right to fish in tidal waters in the NT.1170 The first consideration of these issues was by Justice Mansfield in Land Trust FC. Justice Mansfield’s approach can then be usefully contrasted to the later obiter of Selway J in Gumana FC which directly informed the High Court’s conclusion in the Blue Mud Bay
1164 Ibid 1485 (John Basten QC). 1165 Ibid 1490 (Gleeson CJ). 1166 Ibid 1520 (McHugh J). 1167 Risk HCA (n 579) 405 [32]. 1168 Ibid. 1169 Interview with Ron Levy (n 727). 1170 Blue Mud Bay Case (n 1) 58 [27]. 200
Case. In both cases, the NT’s arguments about the preservation of the public right to fish sought to assert the settler-state’s legislative control of economic exploitation of fishing, whilst also arguing that the legislative framework was underpinned by the settler-state’s obligation to provide open public access to the sea.
1. First Interpretation: The Public Right to Fish was Merely Regulated and could Co-Exist with (Non-Exclusive) Indigenous Rights
As noted above, Land Trust FC proceeded by way of a series of preliminary agreed questions of law. In this context, the main focus of Mansfield J’s answers was whether the public right to fish had been abrogated. Justice Mansfield determined that the public right to fish had not been abrogated by the fisheries legislation.1171 His Honour stated that only a complete prohibition of fishing, and the replacement of public rights with a ‘species of statutory rights’, would abrogate the public right to fish.1172 Justice Mansfield noted that s 10(2) of the Fisheries Act preserved public rights by only requiring licences for commercial fishing and not for subsistence or personal use. Therefore, Mansfield J determined, public rights were merely regulated and could still be exercised.1173
Justice Mansfield acknowledged the distinction between commercial fishing and fishing for subsistence or personal use. However, the interpretation his Honour took was that, generally, commercial rights could be exercised as public rights if the licence was complied with. This seems to stretch the notion of regulation quite far given that all commercial fishing was prohibited other than by licence. Justice Mansfield’s reasons can be viewed within the larger context of the case law relating to the thin line between ‘regulation’ and ‘prohibition’ that has traversed settler-state/Indigenous legal relationships in the native title context.1174 The concept of ‘mere regulation’ has sometimes been used in ways that have benefited native title claimants, especially in relation to preserving traditional fishing rights.1175 In a later native title claim to the sea, Mansfield J held that settler-state fishing licensing requirements had merely regulated Torres Strait Islander rights to fish for commercial purposes and, therefore,
1171 Land Trust FC (n 1146) [70]. 1172 Ibid [70]. 1173 Ibid [69]-[70]. 1174 For example: Yanner v Eaton (1999) 201 CLR 351, Akiba v Commonwealth (n 215) and Karpany v Dietman (2013) 252 CLR 507. Also see: Butterly, ‘Clear Choices in Murky Waters’ (n 218) 245-247; Lauren Butterly, ‘Unfinished Business in the Straits: Akiba v Commonwealth of Australia [2013] HCA 33’ (2013) 8(8) Indigenous Law Bulletin 3, 4; Lauren Butterly, ‘For The Reasons Given in Akiba …’: Karpany v Dietman (2014) 8(10) Indigenous Law Bulletin 23, 24; and Butterly, ‘Fishing for rights’ (n 11) 52. 1175 For example: Karpany v Dietman (n 1174). This also applied in the context of the Yarmirr cases. 201 had not extinguished them.1176 This wider context helps to put Mansfield J’s approach into perspective, but in this case, it presented a high barrier to a determination of exclusive Aboriginal rights in settler-state law.
The obiter of Mansfield J further explained his Honour’s underlying approach. Justice Mansfield stated that the court had not been ‘asked to assume that the passage over the waters or the taking of fish from the waters is a practice exclusive of other person’s activities’.1177 Further, his Honour stated that the court had also not been asked to assume that issuing of fishing licences ‘necessarily interferes with the ordinary use’ of the land and waters by Indigenous peoples.1178 In effect, Mansfield J was suggesting that Indigenous interests in waters would be able to continue their co-existence with non-Indigenous interests and that this was sufficient recognition to secure those interests. There was no investigation into the underlying contest of priorities if there was conflict either in the contemporary or future context. For example, what would happen if a non-Indigenous fisher was licensed to take so much of one species that the Indigenous community had none?
Due to the limited context of the questions of law, Mansfield J was not given facts that would have allowed such investigation. This enabled an assumption that there was no need for remedial action because the non-Indigenous public rights did not sufficiently negatively impact Indigenous fishing. From Mansfield J’s perspective, the Yolngu people’s claim to exclusivity was unnecessary to preserve their fishing interests, and therefore, the contemporary situation of co-existence did not need to be disturbed.
2. Second Interpretation: Historical Public Rights should not be Resuscitated for the Purpose of Defeating Indigenous Claims
The approach of Mansfield J can be contrasted to that of Selway J in Gumana FC. There were five years between the decisions and Yarmirr HCA had further entrenched public rights in the native title context during that time. Both judges were trial judges, however, Selway J had heard full factual evidence from the Yolngu applicants. Justice Selway stated, in
1176 Commonwealth v Akiba (2012) 204 FCR 260 321 [221]. Justice Mansfield was in dissent on this issue. His Honour’s determination on the issue was upheld by the High Court: Akiba v Commonwealth (n 215) 226 [24] and 240 [63]. 1177 Land Trust FC (n 1146) [32]. 1178 Ibid. 202 obiter,1179 that it was quite clear that the public right to fish had not been given protection by Australian legislatures, in fact, the ‘very opposite is the case’.1180 His Honour noted that fisheries had been highly regulated generally, and that, specifically in the NT, the public right to fish had been abrogated by the creation of Aboriginal reserves in 1931 and 1963.1181 These reserves contained provisions that prevented access of non-Aboriginal people to the waters adjacent to the reserves.1182 Justice Selway held that these provisions evinced a clear intention of the Parliament to abrogate any public rights, and that these rights should not be ‘resuscitated’ to limit a contemporary ALRA grant.1183
If the two approaches are compared, Justice Mansfield looked to see if public rights, to any extent, could still be exercised according to settler-state law and without limiting Indigenous interests. Whereas, Justice Selway required the settler-state to demonstrate that public rights had in fact been preserved. Justice Selway seemed to suggest that public rights to fish had been effectively ignored in Australian law until they were resuscitated predominantly in the context of Indigenous sea country claims.1184 His Honour’s approach was to call that out, and emphasise that strong assertions of the settler-state’s own legislative authority had clearly abrogated public rights.
The brief reasons of the majority on public rights in the Blue Mud Bay Case were based on a close reading of the Fisheries Act. The High Court did not venture into the territory of Selway J’s obiter on resuscitating rights. In determining that the public right to fish had been abrogated, the majority noted the statutory exclusion provided by s 10(2) Fisheries Act, but suggested that it was an exemption to an ‘otherwise general prohibition’.1185 This prohibition had abrogated the public rights to fish. Therefore, the outcome in the Blue Mud Bay Case did
1179 As noted at the end of Part B of this chapter, Justice Selway felt bound by Yarmirr FullFC (n 225) in relation to the overall approach to the ALRA grant: Gumana FC (n 72) 483-484 [74]-[76]. This meant that any comments Selway J made in this context were obiter. 1180 Gumana FC (n 72) 479-480 [69(b)]. 1181 Ibid 464-465 [12]-[15]. 1182 Justice Selway did note that the 1931 reserve did not specifically apply to the intertidal zone, but that: ‘What seems to be clear is that those making the Ordinance intended to limit access to the Reserve for the purpose of protecting the Aboriginal inhabitants living on it. That limitation included a limitation on access from the sea’: Ibid 479-480 [69(c)]. 1183 Ibid. 1184 Ibid. Justice Selway did also note that public rights had been brought up in the non-Indigenous fishing context of Harper (n 1030). However, in that case, it was held that the public right to fish for abalone in Tasmanian waters had been abrogated: Harper 332 [14], 334-335 [19] (per Brennan J; Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ agreeing). 1185 Blue Mud Bay Case (n 1) 58 [28]. Even then, the majority acknowledged that the exemption was still limited as restrictions (species type, catch limits etc) could be prescribed. 203 not depend on resolving any competition between public rights and the ALRA.1186 The public rights that had been the cornerstone of the findings in the Yarmirr cases were deemed irrelevant here.
The Blue Mud Bay Case was centered on any potential contemporary public right to fish and not those rights as they applied at the time of the asserted acquisition of Crown sovereignty. Given this, the Blue Mud Bay Case did not overrule the doctrinal outcome of Yarmirr HCA. However, it does bear out the comments in Justice Kirby’s dissent in Yarmirr HCA. Using the historical public right to fish, in the contemporary context, to prevent recognition of exclusive native title to sea country seems out of step with the practical reality of the settler-state’s legislative abrogation of those public rights. Due to the requirements of native title law to consider the situation at the time of the asserted acquisition of Crown sovereignty, Yarmirr HCA projected a historical public right that had since been abrogated and, in the contemporary context, had been abrogated for decades. The settler-state wanted these rights resuscitated as they preserved the state’s asserted obligations to provide open access to third parties and, in the context of the Blue Mud Bay Case, strengthened the state’s assertions of exclusive control of the economic exploitation of fishing. However, the Blue Mud Bay Case also needed to examine the relationship between the ALRA and the fisheries legislation.
E. The Relationship between the ALRA and the Fisheries Act
The court’s determination about the relationship between the ALRA and the Fisheries Act required an analysis of competing assertions of governmental authority. The ALRA was beneficial legislation that provided rights for Aboriginal people, while the fisheries legislation predominantly provided for third-party, non-Indigenous rights. The third-party rights versus Indigenous rights context was important here as the approach to statutory interpretation would directly determine the ‘definition, enlargement or diminution’ of Indigenous interests granted by the settler-state.1187 It was also relevant that NT laws were constitutionally subordinate to Commonwealth laws and, therefore, the Fisheries Act might have been deemed invalid to the extent that it purported to operate inconsistently with the ALRA.1188 In fact, in Gumana v Northern Territory (‘Gumana FullFC’)1189 the court held that the Fisheries
1186 Ibid 58 [29]. 1187 Ibid 68 [67] (Kirby J). 1188 The relevance of one piece of legislation being Commonwealth and the other being NT is further explored at: Chapter VIII, Part C, Section 1(b). 1189 Gumana FullFC (n 1137). 204
Act was ‘invalid and of no effect in so far as it purports to operate with respect to areas subject to the [ALRA] [g]rants’.1190 However, the approach of the majority in the Blue Mud Bay Case to statutory interpretation avoided the need to re-visit the issue of invalidity.1191
The majority in the Blue Mud Bay Case gave general consideration to the types of licences granted pursuant to the Fisheries Act. They noted that licences may be issued with conditions attached such as restricting the area of operation or limits on species caught or gear used.1192 Nothing in the licences, or the Fisheries Act more broadly, conferred rights or permission on a holder to enter a particular area of the sea. There was nothing in the Fisheries Act that prevented another piece of legislation from excluding licence holders from the intertidal zone. Therefore, the Fisheries Act did not qualify the operation of s 70(1) ALRA, and fishing in the waters of an ALRA grant would be to ‘enter and remain’ on Aboriginal land without lawful excuse.
The majority did not comprehensively set out what an ALRA grant to the low water mark would include. Instead, they read the two assertions of legislative authority as being able to exist concurrently because the Fisheries Act did not provide protection of licences within the bounds of the ALRA grant. This reading did not expect something more of the ALRA to demonstrate that it intended to abrogate public rights (as had been the approach of Mansfield J in Land Trust FC). The majority’s approach in the Blue Mud Bay Case maintained the full extent of the fee simple grant and, in the process, circumscribed the third-party interests granted by the settler-state to fishers. The majority found that it was the fishing licences that were vulnerable, not the interests granted under the ALRA. Further, the majority noted that permission could be given by the Arnhem Land Trust for others to enter and remain upon Aboriginal land.1193 This presented an opportunity for a new legal arrangement where
1190 Ibid, Order 2(c). On appeal, Justice Kirby stated that this approach ‘has much to be said for it’: Blue Mud Bay Case (n 1) 68 [64]. 1191 There were also further complications to this argument, that were not pressed on appeal to the High Court, about whether the Fisheries Act applied to persons that the Arnhem Land Trust permitted to enter the intertidal zone: Blue Mud Bay Case (n 1) 54-55 [15]. The High Court did not overrule the Full Federal Court on this point because it did not need to decide. Therefore, the High Court’s determination left open the potential for the NT to amend the Fisheries Act so as to change the way it operated concurrently with the ALRA. However, there were limits, including constitutional, on the ability of the NT to make any amendments. Further discussion of this point is best considered in the context of the post-Blue Mud Bay Case negotiations in Chapter VIII. 1192 Blue Mud Bay Case (n 1) 59 [32]. 1193 Ibid 51-52 [6] and 66-67 [61]. 205
Indigenous peoples could make decisions about who enters the intertidal zone and under what conditions.1194
The practical impact of the outcome of the Blue Mud Bay Case was clearly understood by the majority. Only Justice Kirby, in his separate agreeing reasons, was willing to articulate the policy framework that this outcome represented. His Honour noted the Apology to Australia’s Indigenous Peoples,1195 that had been given earlier that year by then Prime Minister Kevin Rudd, and stated that attention must be given by the court (which his Honour noted did not operate in an ivory tower) to its ‘reconciliatory purposes’.1196 In this context, Kirby J stated some principles of statutory interpretation that were specific to the relationship of Indigenous peoples and the settler-state. These included that Aboriginal interests must be preserved as a ‘species of valuable property rights’ that have a moral foundation.1197 Further, the settler-state must ‘assume full electoral and historical accountability’ for any diminution or abrogation of Indigenous interests.1198
There were points along the journey from the Land Trust cases to the Blue Mud Bay Case where this accountability of the settler-state was perhaps hidden behind certain interpretations of law. These interpretations determined that the ALRA fee simple grants were less than their full legal potential was ultimately shown to be. As was suggested by Kent McNeil, often ‘[l]urking behind… decisions…are other explanations that relate more to political stability and economic priorities than to legal principle and precedent’.1199 The majority in the Blue Mud Bay Case did not accept that there should be any reading down of Indigenous rights. This outcome presented significant consequences for the settler-state. It also forced the debate into the realm of public political accountability as negotiations for the implementation of this new legal structure went forward.
1194 Justice Woodward had considered this possibility more broadly in relation to sea country during the Woodward Commission. His Honour was concerned about the impact it might have on Aboriginal communities: see Chapter IV, Part C, Part 2(b). 1195 Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, 167-171 (K M Rudd, Prime Minister). Also see: Kevin Rudd, ‘Federal Government Apology’ (2008) 7(4) Indigenous Law Bulletin 2, 2-3. 1196 Blue Mud Bay Case (n 1) 69-71 [70]-[72]. 1197 Ibid 69 [69]. 1198 Ibid. 1199 McNeil, ‘The Vulnerability of Indigenous Land Rights’ (n 1076) 273. 206
F. Conclusion
Before Gumana FC was lodged, the Yolngu claimed that they should be able to exercise control over the intertidal zone by determining who entered. They made these claims based on both Yolngu rom and their understanding of the ALRA. This chapter stepped through how the High Court determined that exclusive rights could be recognised pursuant to the ALRA in the intertidal zone. These exclusive rights led to a practical outcome that recognised the assertion by Yolngu people of their ability, grounded in Yolngu rom, to make decisions about whether fishers could enter the intertidal zone.
Each element of legal doctrine that had to be considered by the High Court went through a transition. The interpretation of the concept of fee simple within the context of the ALRA changed. In the lower courts, such as the Land Trust cases, the interpretation limited the extent to which a fee simple grant would apply to tidal waters. Whereas, in the obiter of Risk HCA, the court stated that an ALRA grant to submerged land meant that an Aboriginal Land Trust could control who entered those waters. The public right to fish went from being an all- encompassing reason to reject exclusive Indigenous rights, in the Yarmirr cases, to a right that was abrogated by legislation in the contemporary context. It was clear that the statutory context of the ALRA allowed for a contemporary reconceptualisation of the issues to do with public rights. This was as compared to the native title context of the Yarmirr cases that were limited to considering public rights at the time of asserted acquisition of sovereignty by the Crown. Finally, the Fisheries Act was read such that it did not give particular rights to licence holders within an ALRA grant. This interpretation did not require something more of the ALRA to demonstrate that it had the intent to impact statutory licences. The reasons behind these transitions were multi-faceted and lower court judges often regarded themselves as limited by precedent. However, some of those judges, such as Selway J in Gumana FC, pushed the transition forward by questioning the legal correctness, and potential practical explanations lurking behind, those precedents.
The outcome in the Blue Mud Bay Case effected a legal reconciliation of Indigenous interests with third-party interests that disturbed the contemporary structure of authority in the intertidal zone. Yet, as will be explained in the next chapter, the outcome of this case did not precipitate any immediate practical response in the intertidal zone. Prior to the determination of the Blue Mud Bay Case, all the parties to the litigation agreed that there would be a twelve
207 month amnesty such that the status quo would remain whilst negotiations took place.1200 Therefore, initially, nothing changed on the water. Non-Indigenous fishers could continue to enter the intertidal zone without permission. The practical operation of the newly confirmed control that Indigenous peoples had over the intertidal zone was set to be negotiated between the settler-state and Aboriginal people. Further, the third-party interests also wanted a separate, and prominent, seat at the negotiating table. The legal rights recognised in the Blue Mud Bay Case gave Aboriginal people a strong bargaining position in these negotiations.
1200 Jenny Macklin (Cth Minister for Aboriginal Affairs), ‘Blue Mud Bay Case’ (Media Release, 30 July 2008)
VIII. EPISODE FIVE: POST-BLUE MUD BAY CASE—OVER TEN YEARS OF NEGOTIATIONS
A. Introduction
The determination of the Blue Mud Bay Case led to negotiations between Traditional Owners, the settler-state and third-party fishing interests. These negotiations presented an opportunity for Traditional Owners, and representative organisations such as the NLC, to assert broader Indigenous aspirations in relation to rights and governance over sea country. Some of these aspirations had previously been articulated, particularly in the non-litigation context of the NLC submissions to the Woodward Commission1201 and the evidence from Yolngu people in the first sea closure hearing.1202 The Blue Mud Bay Case provided leverage for Traditional Owners to push for the negotiations to go beyond the legal rights granted pursuant to the ALRA, and also beyond the legal rights granted pursuant to the NTA in Yarmirr HCA, and seek to ‘create a sphere of authority and autonomy for Indigenous governance’ in sea country.1203
This chapter analyses the Blue Mud Bay negotiations in their broader conceptual and temporal context. The analysis is presented in three parts. Part B considers reconciliation of assertions of sovereignty through negotiated agreements between the settler-state and Indigenous peoples. Part C then focuses in on the Blue Mud Bay negotiations and explores the negotiating parties. Part D analyses the negotiations by suggesting three different eras over the eleven years of the negotiations. These eras are distinguished in terms of different strategies that parties adopted and the outcomes. At the time of writing, the Blue Mud Bay negotiations are still ongoing. There are also other ongoing processes that are not directly linked to the Blue Mud Bay negotiations. In particular, marine strategic planning by the NT Government and the continuing development and implementation of Indigenous-led sea country governance models. As will be explored in the next and final chapter, these other ongoing processes seem to present an opportunity to reconceptualise strategies and
1201 See discussion at: Chapter IV, Part C. 1202 See discussion at: Chapter V, Part C. However, some of these aspirations were also apparent in evidence given in Yarmirr FC - see discussion at: Chapter VI, Part C, Section 2(b). 1203 Lisa Strelein and Tran Tran, ‘Building Indigenous Governance from Native Title: Moving Away from “Fitting in” to Creating a Decolonised Space’ (2013) 18(1) Review of Constitutional Studies 19, 47. 209 governance models that, to some degree, already exist within the settler-state legal and governance framework.
B. Reconciling Assertions of Sovereignty through Negotiated Agreements
Chapters IV to VI of this thesis focused on reconciling assertions of sovereignty through royal commissions, Aboriginal Land Rights Commissioner reports, the enactment of legislation and court decisions.1204 This chapter brings a new context: reconciling of assertions of sovereignty through negotiated agreements between Indigenous peoples and the settler-state society. Moving into a negotiation phase does not mean that the parties just ‘step out’ of law and the ‘normative continuities’ of settler-state control.1205 There is still an entrenched imbalance of power (legally, socially and economically) between the settler-state and the Indigenous peoples. However, negotiated agreements are ‘not only a legal category but also a cultural concept’,1206 and the process involves constantly renegotiating legitimacy between the settler-state and Indigenous peoples.1207 In this sense, negotiations must deliver substantive results,1208 but the process itself is an important part of Indigenous self- determination.1209 Negotiated agreements are purportedly more flexible and able to incorporate creative solutions.1210 They seek not only to go some way to making amends for past injustice, but also to redefine ‘future interactions’ between Indigenous and non- Indigenous people.1211 In this context, negotiated agreements can offer ‘opportunities as well as rights’.1212 In the context of coastal Traditional Owners in the NT, the types of
1204 For some commentary on litigation and legislation, as compared to negotiation, in this context, see: Brennan et al, Treaty (n 15) 6-7. 1205 Kirsten Anker, Declarations of Interdependence: A Legal Pluralistic Approach to Indigenous Rights (Ashgate, 2014) 163, 165. 1206 Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (WW Norton & Company, 2000) xix. Barkan noted that debates about the ‘unified sovereign nation’, in the face of the call by Indigenous peoples for recognising historical injustices (sometimes by calling for full or semi-sovereignty), are often ‘conducted within the framework of negotiating restitution’: xxvi. Also see: Marcia Langton and Lisa Palmer, ‘Modern Agreement Making and Indigenous People in Australia: Issues and Trends’ (2003) 8(1) Australian Indigenous Law Reporter 1, 1. 1207 Anker (n 1205) 165. 1208 Ciaran O’Faircheallaigh, ‘Evaluating Agreements between Indigenous Peoples and Resource Developers’ in Marcia Langton, Lisa Palmer, Maureen Tehan and Kathryn Shain (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (Melbourne University Press, 2004) 303, 306. 1209 Brennan et al, Treaty (n 15) 8-9 and Parry Agius, Jocelyn Davies, Richie Howitt and Lesley Johns, ‘Negotiating Comprehensive Settlement of Native Title Issues: Building a New Scale of Justice in South Australia’ (2002) 2(20) Land, Rights, Laws: Issues of Native Title 1. 1210 Marcia Langton, Maureen Tehan and Lisa Palmer, ‘Introduction’ in Marcia Langton, Lisa Palmer, Maureen Tehan and Kathryn Shain (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (Melbourne University Press, 2004) 1, 1. 1211 Ibid. 1212 Brennan et al, Treaty (n 15) 10. 210 opportunities raised in the Blue Mud Bay negotiations included involvement in marine governance and commercial fishing beyond just the intertidal zone.
In the wake of Gumana FullFC, having been the successful party, the NLC stated that they hoped for a ‘comprehensive settlement’ with the NT Government and the fishing industry.1213 This initial call for negotiations was shadowed by continued opposition in the, perhaps inevitable, appeal to the High Court.1214 Once the final determination in the High Court was made, the NLC, the NT Government and representatives of the fishing interests presented a generally united front. They announced that an ‘amnesty’ would be observed, such that the ‘status quo’ of settler-state control would remain for 12 months whilst negotiations took place.1215 From both the NLC and the settler-state perspective, this approach respected their positions: the NLC as the party that had a legal decision stating they could control entry to the intertidal zone; and the settler-state as the party that currently was controlling the intertidal zone and needed to negotiate a form of legal and governance transition or compensation (or both). For all parties, it provided legitimised breathing space to negotiate.
Negotiated agreements between Indigenous peoples and the settler-state society fit within a broader NT, Australian and international historical and contemporary context.1216 This part has three sections. The first section discusses negotiated agreements between Indigenous
1213 Tara Ravens, ‘Landmark native title claim in Darwin Federal Court’, Australian Associated Press General News (2 March 2007) [available through Factiva database]. 1214 Lisa Strelein, ‘Symbolism and Function: From Native Title to Indigenous Self-Government’ in Lisa Strelein (ed), Dialogue about Land Justice: Papers from the National Native Title Conferences (Aboriginal Studies Press, 2010) 127, 201. Prior to the determination of the Blue Mud Bay Case, several members of the NT Opposition made impassioned speeches in the NT Legislative Assembly asking why litigation was being ‘chosen’ over negotiation (in the Blue Mud Bay Case and other instances). For example: Northern Territory, Parliamentary Debates, Legislative Assembly, 8 May 2008, 5998-6000 (Fay Miller). However, these comments seemed to be more aimed at ‘party politics’ (criticising the NT Government) than serious consideration of the issue. The Minister for Primary Industry, Fisheries and Resources later noted, in response to a suggestion that they should not have taken the Blue Mud Bay Case to the High Court, that they went on appeal ‘in agreement with the Northern Land Council, to clarify if the Fisheries Act was still valid in intertidal waters’: Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2008, 1114 (Kon Vatskalis). 1215 Macklin, ‘Blue Mud Bay Case’ (n 1200). 1216 For example: Langton and Palmer, ‘Modern Agreement Making’ (n 1206); Marcia Langton and Lisa Palmer, ‘Treaties, Agreement Making and the Recognition of Indigenous Customary Polities’ in Marcia Langton, Lisa Palmer, Maureen Tehan and Kathryn Shain (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (Melbourne University Press, 2004) 34-49; Maureen Tehan, Lisa Palmer, Marcia Langton and Odette Mazel, ‘Sharing Land and Resources: Modern Agreements and Treaties with Indigenous People in Settler States’ in Marcia Langton, Odette Mazel, Lisa Palmer, Kathryn Shain and Maureen Tehan (eds), Settling with Indigenous People: Modern Treaty and Agreement Making (Federation Press, 2006) 1-18; Ciaran O’Faircheallaigh, Negotiations in the Indigenous World: Aboriginal Peoples and the Extractive Industry in Australia and Canada (Routledge, 2016); Miguel Alfonso Martinez, Special Rapporteur, Studies on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations, UN Doc E/CN.4/Sub.2/ 1999/20 (22 June 1999); Macklem, Indigenous Difference and the Constitution of Canada (n 57) 265-285. 211 peoples and the settler-state society in the Australian context. Given the broad literature on negotiated agreements, this first section seeks to identify how the reconciling sovereignties frame is applied in this context. The second section then explores the contemporary Treaty negotiations in the NT as an important backdrop for the Blue Mud Bay negotiations. Finally, the third section provides a brief history of some negotiated agreements between Traditional Owners, the NT Government and third-party fishing interests. This latter section reveals that these parties have been negotiating about sea country in different ways for decades. In this sense, the negotiating relationships have a history, but the Blue Mud Bay Case gave a significant ‘bargaining chip’1217 to Traditional Owners.
1. Negotiated Agreements between Indigenous Peoples and the Settler- State Society in the Australian Context
Agreement making between Indigenous peoples and settler-state society in Australia has predominantly revolved around land access and social and economic inclusion of Indigenous peoples in resources projects.1218 Thousands of agreements have been negotiated between Indigenous peoples, the state (Commonwealth, State/Territory, local) and third parties including native title determinations by consent,1219 Indigenous Land Use Agreements,1220 agreements for joint management of national parks,1221 resource benefit sharing agreements1222 and other forms of agreement that have often sprung from native title1223 or land rights processes or from other legal bases such as environmental or cultural heritage law.1224 These negotiated agreements come in many legal and political forms,1225 and some
1217 This concept will be explored in detail at the beginning of Part C of this chapter. 1218 Maureen Tehan and Lee Godden, ‘Legal Forms and their Implications for Long-Term Relationships and Economic, Cultural and Social Empowerment: Structuring Agreements in Australia’ in Marcia Langton and Judy Longbottom (eds), Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom (Routledge, 2012) 111, 113. 1219 For example: Bartlett, Native Title in Australia (n 217) 751-773. 1220 For example: Ibid 733-749. Also see: Strelein, ‘Symbolism and Function’ (n 1214) 194. 1221 For example: Lisa Palmer, ‘Interpreting “Nature”: The Politics of Engaging with Kakadu as an Aboriginal Place’ (2007) 14(2) Cultural Geographies 255, 257. 1222 For example: Ciaran O’Faircheallaigh, ‘Using Revenues from Indigenous Impact and Benefit Agreements: Building Theoretical Insights’ (2018) 39(1) Canadian Journal of Development Studies 101-118. 1223 Brennan et al, Treaty (n 15) Chapter 6. 1224 For example, the Single Noongar Settlement is made up of six Indigenous Land Use Agreements: ‘Settlement Agreement, South West Aboriginal Land and Sea Council’, South West Aboriginal Land and Sea Council (Web Page)
Treaties have become a focus of the relationship between Indigenous peoples and the settler- state.1227 Australia has not had the same treaty history as jurisdictions like Canada and Aotearoa, nor has it seen a modern treaty process such as that in Canada.1228 Even if the Single Noongar Settlement might be regarded as a treaty, it was not acknowledged by the WA Government as such (rather, the language appears to have been chosen carefully so as not to label it a treaty).1229 Discussions of treaty have a long history in Australia that ground the contemporary advocacy, public and political conversations and academic analysis.1230 As discussed in Chapter II,1231 there is a contemporary movement advocating for a federal treaty making process in Australia. The Uluru Statement from the Heart proposed ‘sequenced reform in which a Voice to Parliament is the first step, and treaty-making follows’.1232 At this stage, the Commonwealth Government has not committed to either a constitutionally enshrined Voice to Parliament or treaty making.1233
In the shadow of this, Victoria, Queensland and the NT are negotiating agreements that they have labelled treaties.1234 Given the constitutional structure of Australia, no provisions in a
1226 Harry Hobbs and George Williams, ‘The Noongar Settlement: Australia’s First Treaty’ (2018) 40(1) Sydney Law Review 1, 29-37. Also see: (n 217). 1227 Tehan and Llewellyn (n 1225) 7. 1228 Megan Davis, ‘Treaty, Yeah? The Utility of a Treaty to Advancing Reconciliation in Australia’ (2006) 31(3) Alternative Law Journal 127, 127; Langton, Tehan and Palmer, ‘Introduction’ (n 1211) 12. The modern treaty process in Canada began after the decision of Calder v Attorney-General of British Columbia (n 485). Since 1975, Canada has signed 25 modern treaties (sometimes called comprehensive land claim agreements) with Indigenous parties in Canada: ‘Treaties and Agreements’, Government of Canada (Web Page)
State/Territory ‘treaty’ can be inconsistent with Commonwealth law.1235 In this context, Gumatj (Yolngu) leader Galarrwuy Yunupingu stated at the launch of the Barunga Agreement (the memorandum of understanding for the development of a framework for negotiating a treaty between the Aboriginal Land Councils1236 and the NT Government) that any treaty had to be with the Commonwealth Government, not the NT Government.1237 Megan Davis has raised broader questions about the meaning of the concept at a sub-national level, stating that in a jurisdiction such as Australia that ‘is green when it comes to treaty- making … [e]verything and nothing is a treaty’.1238 She also noted the risks of an ‘uncoordinated approach to treaty-making’.1239 This contemporary treaty conversation is an important backdrop to all current negotiations including those related to the Blue Mud Bay Case.
There is Australian scholarship that seeks to distinguish between treaties and other negotiated agreements.1240 This chapter draws from aspects of this treaty scholarship, and explicitly acknowledges the power of the concept of treaty in Australia, but does not need to focus on the exact definition of any agreement that the Blue Mud Bay negotiations might result in. Instead, the focus is on whether ‘the subject matter of the agreement relates to “the notion and contents of sovereignty (such as territory/land and other jurisdictional matters)”’.1241
1235 The NT also has limitations based on the Northern Territory (Self-Government) Act that were described in Chapter IV, Part B, Section 2. 1236 There are four Aboriginal Land Councils in the NT: Central Land Council, NLC, Anindilyakwa Land Council and TLC. The last three are also involved in the Blue Mud Bay negotiations. 1237 Chelsea Heaney, ‘NT Signs Historic Barunga Agreement to Begin Indigenous Treaty’, NT News (online, 8 June 2018)
Langton and Palmer note that agreement making processes, whether they be labelled a treaty or not, can contest the assertion of settler-state sovereignty through the ‘assertion and exercise of Indigenous governance and customary authority’.1242 The reconciling sovereignties frame emphasises the ‘mutual recognition of the respective jurisdictions’ that Indigenous peoples and the settler-state are asserting through their negotiation of ‘jural, political and economic’ relationships.1243 For the purposes of this chapter, given that the Aboriginal Land Councils and the NT Government are simultaneously involved in both negotiations, the NT Government’s treaty process is a relevant contemporary settler- state/Indigenous negotiation sitting alongside the Blue Mud Bay negotiations.
2. Contemporary Treaty Negotiations in the NT
The Aboriginal Land Councils and the NT Government signed the Barunga Agreement in June 2018.1244 This was nearly ten years after the Blue Mud Bay Case was determined. The guiding principles of the treaty consultation process included that Aboriginal people ‘were the prior owners and occupiers of the land, seas and waters’, that Aboriginal people were self-governing prior to colonisation and that Aboriginal people did not cede sovereignty of their lands, seas or waters.1245 This was an acknowledgement by the NT Government, for the purpose of treaty negotiations, that Aboriginal people did not cede their sovereignty. However, it was not necessarily an acknowledgement that Indigenous sovereignty still exists or that the NT government accepts assertions of Indigenous sovereignty. The original Barunga Statement of 1988, that the Barunga Agreement is named in recognition of,1246 was
conceptualisation that views negotiated agreements as constituting a ‘de facto recognition of Indigenous sovereignty’: at 165, 177-181. Anker submits that because negotiated agreement processes involve Indigenous groups as polities, ‘there is an argument that there is an implicit treaty-making process, with agreements being made on a ‘government to government’ basis’: at 177. Anker notes that, in Australia, a claim that negotiated agreements might be ‘de facto treaty’ processes is controversial because ‘treaty confronts head-on the question of Indigenous nationhood and sovereignty, and thus the foundations of the state’; treaty is ‘subversive’, whereas negotiated agreements are ‘progressive and beneficial’: at 178. Anker suggests that instead of concentrating on whether it is or is not a treaty, ‘we should concentrate on how agreements and arguments about them [negotiated agreements] are transforming our understandings of what ‘treaties’ are’: at 166. Brennan et al, Treaty (n 15) also emphasised that the nature of the agreement was more important than the ‘name given’: 3. 1242 Langton and Palmer, ‘Treaties, Agreement Making and the Recognition of Indigenous Customary Polities’ (n 1216) 48. For example: ‘The Ngarrindjeri Nation Yarluwar-ruwe (land and sea country) Plan…contains a Proclamation of Ngarrindjeri Dominion, which invites the South Australian Government to negotiate a treaty with Ngarrindjeri people; Ngarrindjeri Elders expressed the hope that the plan itself ‘will act as a form of treaty’: Smyth et al, ‘Indigenous-Driven Co-Governance of Sea Country’ (n 235) 18. 1243 Langton and Palmer, ‘Treaties, Agreement Making and the Recognition of Indigenous Customary Polities’ (n 1216) 48-49. 1244 ‘History’, Northern Territory Treaty Commission (Web Page)
The Northern Territory Treaty Commission website noted that ‘Treaty or Treaties will set the foundation for future agreements’ between Aboriginal people and the NT Government.1248 This suggests that if a treaty is, or treaties are, enacted, it would provide a new foundation for negotiations like those around the Blue Mud Bay Case. At this stage, the Blue Mud Bay negotiations are continuing without any formally articulated connection to this treaty process. This has created room for the NT Government and third parties to suggest that anything beyond the intertidal zone should not be negotiated in the Blue Mud Bay negotiations, but instead, left for the treaty negotiations. It was reported in The Australian (newspaper) that after treaty negotiations began, the ‘NLC handed Chief Minister Michael Gunner and his colleagues a list of demands understood to include complete ownership of some fisheries’.1249 The Chief Minister responded by stating that the NLC was seeking to ‘negotiate around waters and licences unaffected by the Blue Mud Bay decision’, and identified that such negotiations were possible but not within the paradigm of the Blue Mud Bay negotiations.1250 This narrative was attempting to limit the sorts of negotiations that could be had pursuant to the outcome in the Blue Mud Bay Case. However, particularly in the context of the third era of the negotiations, this distinction between ‘Blue Mud Bay issues’ and other issues became blurred.1251
From the perspective of the NLC, the outcome in the Blue Mud Bay Case could be used to leverage negotiations that went beyond the intertidal zone. Conversely, the treaty negotiations were broad, and somewhat nebulous, and had only relatively recently commenced. Given this, perhaps there was a benefit for the NLC in keeping these two negotiations separate so that the parties could attempt to keep progressing the Blue Mud Bay negotiations without
1247 Aboriginal Land Councils and NT Government, The Barunga Agreement (n 1237) 5 (copy of Barunga Statement). 1248 ‘Homepage: Northern Territory Treaty Commission’, Northern Territory Treaty Commission (Web Page)
3. Brief History of Negotiated Agreements in the NT
There has been a strong history of negotiated agreements between Aboriginal Land Councils, the NT Government and third parties in a huge variety of substantive areas. These have included well known agreements over large mines and national parks such as Kakadu.1252 More specifically, there has been a history of negotiated agreements between the NT Government, Aboriginal Land Councils and fishing interests, as well as some agreements between the Aboriginal Land Councils and individual fishing interests.1253 In the shadow of the Yarmirr cases and the Blue Mud Bay cases, ‘conservation, commercial, recreational and research’ agreements in sea country were being negotiated from at least the mid-1980s onwards.1254
Similarly to the agreements seen in Marcus Barber’s work discussed above,1255 many of these agreements related to access to Aboriginal land as fishers needed land bases. In 1998, there was an agreement between the NT Government, AFANT and the TLC where six beaches were made available for camping by fishers.1256 At that time, given the Blue Mud Bay Case had not been determined yet, the TLC’s legal rights over the intertidal zone were unclear, so it appears their strategy was to negotiate using what they could control (access to Aboriginal land). They wanted to encourage fishers to camp, which they could control by permit, rather than them just using the seas without any permission.1257
In her chapter on maritime agreements in the NT, Sue Jackson lists several agreements between the NLC and commercial parties relating to pearl farming, taking of mud crabs and trepang and sport fishing, that were entered into from the 1980s to the early 2000s.1258 These
1252 For example: ‘Jabiluka Long-Term Care and Maintenance Agreement’, Agreements, Treaties and Negotiated Settlements Project (Web Page)
This history of negotiated agreements demonstrates that the Aboriginal Land Councils were already well versed in agreement making related to sea country by the time the Blue Mud Bay negotiations came along. This brief synopsis shows the ways in which the agreements relating to marine areas were being used. Prior to the Blue Mud Bay Case, the ownership of Aboriginal land had provided a surrogate way to try to negotiate some control over the seas particularly close to the shore. Further, these earlier negotiations were the start of attempts to get beyond the legal rights held by the Aboriginal Land Councils and included elements such as employment, financial benefits and involvement in conservation decision-making. However, the Blue Mud Bay Case provided a new frame in which Aboriginal people had a strong opening position in negotiations.
C. The Blue Mud Bay Negotiations1262
As well as formal recognition of important legal rights, the Blue Mud Bay Case provided a new, and powerful, ‘bargaining chip’ for Indigenous peoples in sea country. One conceptualisation of negotiations is to view them as occurring in the ‘shadow of the law’ with formal rights as bargaining chips.1263 The bargaining chip in the Blue Mud Bay negotiations was the legal determination that they could control who entered the intertidal zone. This meant that unless the ALRA was amended, the settler-state and third-party interests had to negotiate for access. Of course, once negotiations begin, bargaining chips ‘come into play with a multitude of other economic, political, cultural and personal factors’.1264
1259 Ibid 232. 1260 See discussion at: Chapter VI, Part B, Section 2. 1261 Jackson, ‘Maritime Agreements’ (n 235) 227-228 and Edyvane and Blanch (n 235) 218. 1262 Some aspects of Parts C and D of this chapter were discussed in: Butterly, ‘A decade on: What happened to the historic Blue Mud Bay Case (and why is it in the news again)?’ (n 4). 1263 Anker (n 1205) 165. 1264 Ibid. 218
The Blue Mud Bay negotiations really began after determination of Gumana FullFC. If the orders in Gumana FullFC had been implemented immediately, all fishers, commercial and recreational, would not have been able to enter most of the intertidal zone until the Arnhem Land Trust determined what sort of permit system it might implement to allow entry.1265 An immediate enforcement of the determination would have been within the legal rights of all the Aboriginal Land Trusts. However, the language of the key representatives of the NLC was to emphasise that fishers should not panic, and that Traditional Owners wanted to work with ‘all stakeholders to allow the fishing industry to continue’.1266 The NLC’s calm response, and emphasis on working together going forward, set the scene for the ongoing negotiations. From the NLC’s perspective, it seems there was a view that giving ‘political breathing space’ would be beneficial to their position in the long run.1267 This breathing space was being given by the Traditional Owners (represented by the NLC and, in the bigger context, the other two Aboriginal Land Councils that governed land with intertidal zones)1268 to the NT Government and the third-party fishers. It was clear that access to the intertidal zone was theirs to give, and theirs to take away. The power of the Traditional Owners to prevent access to the intertidal zone has broadly underpinned the negotiations over the eleven years. As will be explored in this part, there have also been times when the NLC and the TLC have threatened to prevent access as a negotiating tactic.
After Gumana FullFC, ‘a “minimalist licensing regime” was established pending the outcome of the High Court appeal’.1269 Free temporary permits were issued by the Aboriginal Land Councils to both commercial fishers, who already held licences issued by the NT
1265 Initially, the NT Government and the Arnhem Land Trust sought consent orders that would stay the orders of Gumana FullFC (n 1137). See: Syd Stirling (NT Attorney-General), ‘Statement from Attorney-General - Blue Mud Bay (No 2) Native Title Appeal’ (Media Release, 2 March 2007)
Government, and recreational fishers.1270 The media release about this arrangement, from the NT Government, emphasised that it complied with the law, but also maintained the ‘status quo as far as possible’.1271 The implication here was that status quo was control by the settler- state. However, the permit system was a symbol of the role of the Traditional Owners in permitting such open access. These temporary permit arrangements became the operative model of the 12 month amnesty after the Blue Mud Bay Case.
This part and Part D operate in tandem. This part focuses on the position of each of the negotiating parties when the Blue Mud Bay Case was handed down. It considers the base of the negotiating relationships and examines what each party brought to the negotiating table. Part D then analyses the eleven years of the negotiations and categorises them into three eras (2008-2011: ‘Traditional Owners Reject the NT Government’s Process and Proposals’; 2012- 2014: ‘NT Government Pursues Targeted Areas rather than Comprehensive Agreement’; and 2015-2018: ‘High Tensions’). Each era demonstrates a different power dynamic in the relationship between the negotiating parties. At some points, the settler-state’s assertions of its governmental authority over the sea were recognised, whereas at other points the Traditional Owners were actively challenging the monopolistic nature of the settler-state’s assertions of governmental authority and enforcing their ability, as Traditional Owners, to control and make decisions about their sea country.
1. The Negotiating Parties
The negotiating parties were the Traditional Owners (represented by the Aboriginal Land Councils), the settler-state (predominantly the NT Government) and the third-party fishing interests (both recreational and commercial). On the day the Blue Mud Bay Case was handed down, it was clear that negotiation was the way forward. As was stated by Djambawa Marawilli, a Traditional Owner involved in the case: ‘This is the time to talk with each other now, this is the time for the Government and the balanda to talk and make real smooth process to plan for the future’.1272 However, even at this early stage, both sides of NT politics (Government and Opposition) urged Traditional Owners not to introduce a permanent permit
1270 NT Government, ‘Blue Mud Bay Announcement’ (Media Release, 21 May 2007)
(a) Traditional Owners and the Aboriginal Land Councils
There were three Aboriginal Land Councils that had intertidal zone areas: NLC, TLC and Anindilyakwa Land Council. The NLC represented Traditional Owners who held, by far, the largest amount of intertidal area and, as a result, the NLC played the major role in the ongoing negotiations. Therefore, this chapter will focus predominantly on the NLC but uses relevant examples of the negotiating approach of the TLC. The TLC played a particularly prominent role in the early part of the negotiations.1274 On the day the Blue Mud Bay Case was determined, the then Chair of the NLC, Wali Wunungmurra, noted that ‘we have waited for 30 years for our sea rights to be legally recognised’.1275 This placed the issue within the larger settler-state historical context going back to the debates about what elements of sea
1273 Ibid. 1274 The research conducted for this thesis did not reveal much public information about the role of the Anindilyakwa Land Council (ALC) in the Blue Mud Bay negotiations. Their 2010/2011 Annual Report stated that the ALC agreed to the interim access arrangements (the temporary permits) while they waited for the ‘outcome of Blue Mud Bay settlement negotiations’: ALC, Annual Report 2010/2011 (19 December 2011) 34- 36
We will be going through our process, and we’re not making any promises as to how it’s going to be going. But what we can assure people out there is that we will be sitting down with these people to [be] able to negotiate things as far as we can go.1277 [emphasis added]
This statement emphasised that, from the perspective of Traditional Owners (represented by the NLC), negotiations were the appropriate way to resolve these issues, but that these negotiations were going to be done on the NLC’s terms (‘our’ process). It identified that there might be limitations on how far the NLC would go in these negotiations and that there was no certainty as to any particular outcome. It appears the reason for setting these ground rules was the NT Government’s persistent promise to the wider public that they would secure permit- free fishing for recreational fishers over most NT waters post the Blue Mud Bay Case. In September 2017, in an interview for this thesis, a Chief of Staff to the NT Minister for Primary Industry and Resources stated that:
The NT Government’s policy since the announcement of [the] Blue Mud Bay decision has basically been to try and maintain…permit-free access for fishermen as the overriding policy and do what it takes to maintain that situation and that is why the focus has been on individual agreements and getting them in place which provides, I’d call it a win-win, in terms of some benefits to TOs [Traditional Owners] in exchange for allowing permit-free access.1278
The concept of individual agreements will be discussed in the next part.1279 This focus on permit-free fishing appeared to demonstrate that the NT Government had an element of its governmental authority that it was apparently not willing to compromise.
The NLC also emphasised economic opportunities and the future relationships of Indigenous peoples and the commercial fishing industry.1280 One of the issues that became apparent,
1276 See discussion at: Chapter IV, Part D. 1277 Sarah Hawke, ‘High Court hands control of much of NT coastline to traditional owners’, ABC PM (Web Page, 30 July 2008)
(b) The Settler-State: The NT and Commonwealth Governments
The immediate response of the NT Labor Government was influenced by the fact that the Blue Mud Bay Case was handed down in the middle of an NT election campaign.1281 Therefore, the NT Government was not in an immediate position to make any major decisions. The NT Government supported negotiation going forward, however, as noted in the previous section, they voiced some limits in what they would accept. The then Chief Minister stated that ‘there will be no requirement for individual permits for recreational fisherman to fish’ in the NT (and this sentiment was echoed by the Opposition Leader).1282 AFANT started referring to this as a ‘guarantee’ from the NT Government.1283
This negotiating approach was influenced by the recreational ‘fishing vote’.1284 Recreational fishing was closely associated with the notion of the public right to fish that still loomed large outside its legal context.1285 Prior to the temporary permit arrangements, recreational fishers had not required any permit in the NT.1286 The issues around recreational fishing were often expressed by members of the public, and non-Government members of Parliament, as related to equality: ‘Why don’t both black and white people have the basic right to say: “We can
1281 The election was held just over a week later on 9 August 2008. The NT Government did not change at this election: ‘2008 Northern Territory Election’, ABC Elections (Web Page)
The NT Government’s commitment to negotiation, with their one limitation, indicated that they generally acknowledged the legitimacy of Indigenous control over entry to the intertidal zone emanating from the Blue Mud Bay Case. Further, they recognised the Aboriginal Land Councils as polities that they must negotiate with to restore a legitimate governance structure. Two related questions arise: why did the NT Government not attempt to amend the Fisheries Act to specifically allow fishing in the intertidal zone, or alternatively, request that the Commonwealth amend the ALRA?1291 The Blue Mud Bay Case left open a potential Constitutional limitation to amending the NT legislation. The High Court did not specifically overrule the finding in Gumana FullFC that the operation of the Fisheries Act was invalid due to its inconsistency1292 with the ALRA.1293 This left a question as to the extent of any inconsistency that was dangerous to re-open, and would surely have led to further litigation if it had been tried. Asking the Commonwealth if it would amend the ALRA was more
1287 Northern Territory, Parliamentary Debates, Legislative Assembly, 17 April 2007, 4324 (Gerry Wood). 1288 See discussion at: Chapter IV, Part D, Section 3(b). 1289 Gerry Wood (see (n 1287)) also issued a media release where he stated that while he supported the ‘concept of [Aboriginal] Land Rights’, he felt that the sea was a ‘different matter’: Gerry Wood, ‘Recreational Fishing - A Right or a Privilege’ (Media Release, 29 March 2007)
The Commonwealth Government never publicly displayed any appetite to amend the ALRA in the wake of the Blue Mud Bay Case. The initial reaction of the Commonwealth Government, which was also a Labor Government, supported negotiation, noting that it was a ‘sensible approach to these issues’.1294 If the Commonwealth had wanted to amend the ALRA, they would have been faced with the question of whether they were required to compensate the Traditional Owners for the acquisition of their property in the intertidal zone. The Australian Constitution provides for ‘just terms’ compensation for acquisition of property.1295 About six months after the Blue Mud Bay Case was handed down, a question arose as to whether this ‘just terms’ provision applied to use of s 122 of the Australian Constitution. Section 122 (known as the ‘territories power’) gives power to the Commonwealth Parliament to make laws for the government of any Territory (such as the ALRA). By majority in Wurridjal v Commonwealth (‘Wurridjal’),1296 the High Court determined that ‘just terms’ did apply to an acquisition of property pursuant to the territories power.1297 Therefore, any amendment to the ALRA that might constitute an acquisition of property required provision of ‘just terms’ compensation. As noted by Sean Brennan, Wurridjal indicated that the ‘fee simple title to Aboriginal land is far from the policy plaything of the Commonwealth government’.1298 At this early stage it was not clear how much ‘just terms’ compensation for property in the intertidal zone would be.
It seems there was also a policy element to the Commonwealth’s initial response. The Labor Government of that time had issued the Apology to the Stolen Generations and, in the year following the Blue Mud Bay Case, signed the UNDRIP.1299 From the Commonwealth
1294 Macklin, ‘Blue Mud Bay Case’ (n 1200) and ‘Compensation for Blue Mud Bay decision unlikely: Macklin’ (n 1272). 1295 Section 51(xxxi) of the Australian Constitution states: ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:…(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.’ 1296 Wurridjal v Commonwealth (2009) 237 CLR 309 (‘Wurridjal’). 1297 See generally, Sean Brennan, ‘The Northern Territory Intervention and Just Terms for the Acquisition of Property’ (2009) 33 Melbourne University Law Review 957. 1298 Ibid 981. 1299 ‘Apology to Australia’s Indigenous peoples’, Commonwealth Government (Web Page)
For both legal and policy reasons, the Commonwealth Government was content to leave the core Blue Mud Bay negotiations to the NT Government. The Commonwealth Government had this option. Given how controversial the issues could become, this was a useful protective measure for the Commonwealth Government. The NT Government was left to face the challenge to its assertion of governmental authority alone. The third parties, some of whom had attempted to reach out to the Commonwealth Government, 1302 were also left relying on the NT Government.
(c) The Third Parties
As discussed in Chapter II,1303 third-party interests rely on the settler-state’s assertions of sovereignty for their existence.1304 Therefore, any challenge to the settler-state’s monopolistic assertion of governmental authority leads to questions about third-party interests. It does not matter that the ‘private citizen’ has not done any ‘wrong’; their interests inherently rest on the settler-state granting them priority over Indigenous interests.1305 A letter from a commercial fisher that a politician read out in the NT Legislative Assembly stated: ‘It
1300 Northern Territory, Parliamentary Debates, Legislative Assembly, 27 October 2010, 6702 (Dave Tollner). 1301 See discussion at: Part D, Section 3(b) of this chapter. 1302 ‘Compensation for Blue Mud Bay decision unlikely: Macklin’ (n 1272). 1303 See discussion at: Chapter II, Part C, Section 4(c). 1304 Hoehn (n 57) 124. 1305 Ibid 126 and McNeil, ‘Reconciliation and Third-Party Interests’ (n 159) 22. 226 is very distressing and emotionally draining to be in this situation which is beyond our control and in no way is any of our fault’.1306 The notion that the third parties had not done anything wrong was voiced often during the Blue Mud Bay negotiations.
In the negotiating arena, only the settler-state had the power to make agreements that dealt with matters of assertions of sovereignty, such as control of land and sea and allocation of governance powers.1307 In this sense, the settler-state brought to the ‘agreement making process a different set of potentialities’ compared to third-party interests.1308 A good comparative expression of this can be seen in the Our Place at the Table: First Nations in the B.C. Fishery Report by the First Nation Panel on Fisheries in British Columbia, Canada.1309 It set out a process that involved three tiers of negotiation: tier 1 – between Indigenous groups only; tier 2 – between Indigenous groups and the Federal Government (due to their different constitutional arrangements compared to Australia); and tier 3 – between Indigenous groups, Federal and provincial governments and third parties.1310 The tier 2 negotiations allowed discussions of authority and ‘opportunity to have input into broader level decisions affecting fish stocks’.1311 The First Nations Panel noted that if a tier 3 process was attempted prior to developing a tier 2 process, this could lead to difficulties if the settler-state had not yet ‘acknowledged the management authority of First Nations’.1312
As will be seen in the next section, this theme manifests in the Blue Mud Bay negotiations in a different way. The Blue Mud Bay Case had already determined the authority of the Traditional Owners and the settler-state acknowledged this by participating in the negotiations. However, on some occasions when the Traditional Owner groups (represented by the Aboriginal Land Councils) felt that the NT Government was not acknowledging that authority, they demonstrated their capacity to directly negotiate with third parties. The Traditional Owner groups were stepping into the settler-state role of legitimising these third- party interests and asserting their ability to make decisions about sea country.
1306 Northern Territory, Parliamentary Debates, Legislative Assembly, 28 November 2018, 5016 (Gary Higgins, Opposition Leader). 1307 Tehan and Llewellyn (n 1225) 39. 1308 Ibid 40. 1309 First Nation Panel on Fisheries, Our Place at the Table: First Nations in the B.C. Fishery (2004)
Immediately after the Blue Mud Bay Case was handed down, there was a sense that the third parties were reliant on the NT Government for protection and they had related expectations that the NT Government would take a leadership role.1313 However, the role of third parties in the Blue Mud Bay negotiations should not be underestimated.1314 Before exploring that role, it is important to understand who the different parties were. Three fishing interest representative bodies have been involved, at various stages and in different capacities, in the Blue Mud Bay negotiations: the NT Seafood Council (‘NTSC’)1315 (commercial fishing), the Guided Fishing Industry Association (‘GFIA’)1316 (fishing tour operators) and AFANT1317 (recreational fishing).1318 AFANT represents recreational fishers, who are generally not individually profiting from their fishing, but the recreational fishing industry is a major contributor to the NT economy. Seventy percent of recreational fishing occurs in regional areas where it is ‘often the primary economic and development driver’ (through tourism or provision of supplies and accommodation).1319 In this sense, AFANT represents the individual fisher out in their ‘tinnie’ (slang name for a small open aluminium boat) on the weekend, but also a major industry lobby group.
After the Blue Mud Bay Case came down, the NTSC and AFANT made public statements. The NTSC Chairperson stated that they were ‘relaxed’, ‘expecting positive talks’ with the NLC and that he was ‘sure commercial fishermen will still be able to do business’.1320 Further, he noted that the case seemed to require ‘already licenced operators’ to ‘seek permission to fish in those waters, so it’s an additional licence’.1321 This response emphasised the leading place of the Traditional Owners in the negotiations, but also confirmed that the NTSC expected a place at the negotiating table. The NTSC had been a party to all the Blue Mud Bay cases, so their history in the matter underlay their expectation of being a major
1313 See for example, the sentiment expressed by the Guided Fishing Industry Association that they are ‘confident the Territory Government will prevent harm to the industry’: NT News editorial team (no named author), ‘Tourism concern over Blue Mud Bay’, NT News (Darwin, 6 August 2008) 23. 1314 Tehan et al, ‘Sharing Land and Resources’ (n 1216) 16. 1315 ‘About Us’, NT Seafood Council (Web Page)
AFANT had not been involved in the litigation to the same extent as the NTSC, so their involvement was less certain in a formal sense.1322 Just before the Blue Mud Bay Case came down, a spokesperson for AFANT, Chris Makepeace, stated that AFANT wanted to be able to sit down with the government and Aboriginal people ‘to work out the best deal for all of us’.1323 It was clear that AFANT also expected a place at the negotiating table. Immediately after the High Court’s determination, Makepeace stated that the Commonwealth Government should step in to ensure that fishers did not have to pay for access.1324 Makepeace noted that the negotiations were a ‘business sort of situation’ and that a resolution which would benefit the Traditional Owners would involve money.1325
In this sense, AFANT were not rejecting the decision but were registering their concern that their members, who were not fishing for profit, might suffer financial consequences that they felt should be borne by the settler-state. AFANT wanted the state to pay to ‘fix the problem’, without any disadvantage to them, because from their perspective recreational fishers were not at fault in this situation. This approach was influenced by AFANT’s reliance on the NT Government’s guarantee of permit-free recreational fishing to legitimise their interests. AFANT’s approach also seemed to limit the potential outcome of the negotiations to one of money and compensation. It did not contemplate any form of changed governance model that might require them to directly engage with the Traditional Owners.
In the context of the Blue Mud Bay negotiations, it appears that there was a sense from the NLC perspective that keeping the fishing parties in the tent of the negotiations could prove
1322 AFANT was a party to Gumana FC. They applied to the Commonwealth Attorney-General’s Department for funding to be a party to the Blue Mud Bay Case, but their application was rejected: AFANT, 2008 Annual Report (2008) 7
D. Relationships and Bargaining Chips: The Three Eras of the Blue Mud Bay Negotiations
The eleven years of the Blue Mud Bay negotiations can be categorised into three eras. These categories are mainly based on the changes in relationship between the NT Government and the Traditional Owners (represented by the Aboriginal Land Councils). The first era (2008 – 2011), saw the NT Government and the Traditional Owners asserting their ability to make decisions over sea country through a series of initial interactions. These interactions included Tiwi Island Traditional Owners (through the TLC) refusing to participate in interim arrangements and requiring separate permits in their intertidal zone, and Traditional Owners represented by the NLC refusing to sign an ‘enduring access’ agreement that the NT Government proposed.
The second era (2012 – 2014), involved the NT Government taking the lead in the negotiations and targeting specific Traditional Owner groups to negotiate permit-free arrangements for high value areas in exchange for compensation and funding for community projects. The third era (2015 – 2018), saw Traditional Owners represented by the NLC take a leadership role and, following somewhat of a backlash against the permit-free arrangements, push for an agreement that would give Traditional Owners more control and commercial opportunities. Finally, in June 2019, the NT Government, the Traditional Owners represented by the NLC and the three fishing parties came together and signed a Heads of Agreement to guide negotiations towards, what the NT Minister for Primary Industry and Resources described as, a ‘long-term resolution of fishing access issues linked’ to the Blue Mud Bay Case.1327
1326 See for example, comments of Wali Wungunmurra, then NLC Chair, quoted in Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2008, 1101 (Lynne Walker). 1327 Jane Bardon, ‘Permit-free fishing to remain in the NT following “breakthrough” meeting’, ABC News (online, 26 June 2019) As explained in the introduction to this part, the temporary permit arrangements became the operative model of a 12 month post-Blue Mud Bay Case amnesty agreed between the NLC and the NT Government. This amnesty, in the form of temporary permits, was effectively renewed by the NLC approximately annually for eight years, and ended on 31 December 2016.1328 From 2017 onwards there has been a waiver of the permit requirement, which has been renewed at six or 12 month intervals.1329 As will be discussed below,1330 this switch to the permit waiver was used as a way to draw attention to the frustrations of the Traditional Owners given how long the negotiations were taking.1331 In June 2019, the NLC, the NT Government and the fishing parties agreed to continue the permit waiver for a further 18 months.1332 At this stage, this means there will be permit-free fishing until at least the end of 2020. On the surface, this seems to leave the Traditional Owners in much the same position as they were in 2008 when the Blue Mud Bay Case was determined. However, each era of the negotiations demonstrates ways in which the Traditional Owners asserted their ability to make decisions over sea country, and the different ways the NT Government responded to these assertions over time. As discussed in Part B of this chapter, the process is important particularly in relation to Indigenous self-determination. At the end of the eleven years, the negotiating process has changed the relationships between the parties. 1. 2008-2011: Traditional Owners Reject the NT Government’s Process and Proposals There was no framework agreed upon, or proposed by any party, to guide the negotiations at the beginning.1333 Frameworks for negotiating between Indigenous peoples and the settler- state are more developed in Canada and Aotearoa.1334 However, as foreshadowed, these decision-nitmiluk/11248008> and Northern Territory, Parliamentary Debates, Legislative Assembly, 17 October 2019, 51 (Paul Kirby, Minister for Primary Industry and Resources). 1328 ‘Sea Country Rights’, Northern Land Council (Web Page, 2019) During this era, there were two major points of contestation. First, the Tiwi Traditional Owners decided to ‘go it alone’ in early 2009 and restrict access to their intertidal zone.1337 Second, in 2011, the Full Council of the NLC rejected the NT Government’s first agreement proposal. Both situations emphasised the power that the Traditional Owners had to make decisions about their sea country and the related limitations of the NT Government’s authority. (a) Tiwi Traditional Owners: Going it Alone Early on in the negotiations, the Tiwi Traditional Owners represented by the TLC unanimously determined to ‘take control of’ their waters.1338 The Tiwi Traditional Owners ‘Settler Native Title: Pursuing a Comprehensive Regional Agreement in South West Australia’ in Marcia Langton, Odette Mazel, Lisa Palmer, Kathryn Shain and Maureen Tehan (eds), Settling with Indigenous People: Modern Treaty and Agreement Making (Federation Press, 2006) 207, 217-223. 1335 Northern Territory, Parliamentary Debates, Legislative Assembly, 17 September 2008, 277 (Paul Henderson, Chief Minister). Also see: Northern Territory Government, Election Commitments 2008: Tabled Paper 14 (10 September 2008) Initially, the TLC participated in the negotiations with the other two Aboriginal Land Councils. However, in January 2009, the TLC advertised ‘for submissions on how the [intertidal zone] area should be managed, including the allocation of licences’.1341 The TLC stated in a letter to the Commonwealth Minister for Indigenous Affairs that they ‘will not wait for the Territory Government to manage the process’, as it will take too long; instead they would ‘take control’ themselves.1342 A representative of the TLC also submitted that the NT Government was ‘preventing them from establishing an independent economy on the islands’ and, as a result, they ‘were more determined than ever to rely on their own resources and labour’.1343 It seems the TLC were proposing that, in controlling access, they would be actively considering what sort of fishing people wanted to undertake in their intertidal zone. Therefore, it appeared that having an NT Government fishing licence would not be enough to ensure that the licence holder could do that fishing in the intertidal zone. In effect, the Tiwi Traditional Owners were seeking to take over the exercise of those legal powers from the NT in their intertidal zone. In 2010, permits coordinated by the TLC (through their associated body Tiwi Enterprises),1344 that initially cost $55 per annum, were introduced for fishers to enter the Tiwi Islands 1339 TLC, Annual Report 2010-2011 (n 269) 13. 1340 The permission principles were initially described in Chapter III, Part C, Section 3 and have then been examined in every episode of this thesis: in the context of the Gove Land Rights Case (Chapter IV, Part B, Section 1(a)), the Woodward Commission (Chapter IV, Part C, Section 1), the sea closure legislative provisions (Chapter V, Part B, Section 1(a)), the first sea closure hearing (Chapter V, Part C, Section 1), the factual findings in Yarmirr FC (Chapter VI, Part C, Section 2(b)), the legal findings in Yarmirr HCA (Chapter VI, Part C, Section 2(b)) and the claim in Gumana FC (Chapter VII, Part B, Section 3). 1341 Patricia Karvelas, ‘Defiant Tiwis move to control fishing grounds’, The Australian (Sydney, 7 January 2009) 6. Also see: Paul Toohey, ‘Tiwis get their hooks into tidal rights fight’, The Australian (Sydney, 10 January 2009) 22. 1342 Karvelas (n 1341); Nigel Adlam, ‘Tiwi people set hook on island fishing line’, NT News (Darwin, 8 January 2009) 4 and Lex Hall, ‘Land council blames Labor for Tiwi permits’, The Australian (Sydney, 15 May 2010) 6. 1343 Hall (n 1342) 6. 1344 TLC, Annual Report 2009-2010 (n 1338) 5. 233 intertidal zone.1345 This meant that the NT Government’s guarantee of permit-free, no-cost recreational fishing was compromised in the Tiwi Islands. The Tiwi Traditional Owners’ approach had undermined the NT Government’s assertions of governmental authority. The Chief Minister responded to the introduction of the permits by stating that he had extended an ‘olive branch’ to the TLC and invited them ‘back to the [negotiating] table’.1346 The reaction of AFANT was to place the blame, for what they perceived to be a suboptimal situation, on the NT Government. They stated that the NT Government should ‘not wait until land councils become annoyed with the process before responding to concerns’.1347 AFANT went on to note that they had a good relationship with the TLC and would continue to work with them directly.1348 In this sense, the Traditional Owners’ power to control entry over the intertidal zone was confirmed by the reaction of AFANT who were willing to negotiate directly with them in the absence of settler-state leadership. The dynamics between the NT Government, AFANT and the TLC was further tested when AFANT offered to coordinate the permits. AFANT offered to pay the TLC in bulk so that the fishers themselves would not have to apply to the TLC.1349 The NT Government then committed to providing funds to cover the costs of AFANT in this exercise.1350 The TLC refused this arrangement.1351 Instead, fishers had to pay the TLC and then, by application through AFANT, received a refund from the NT Government.1352 The end result may have financially been the same for the TLC, and the administrative burden higher, but this seems to have been additional positioning by the Traditional Owners. This was not just about 1345 Ibid 33; TLC, Annual Report 2010-2011 (n 269) 13; Nick Calacouras, ‘95 percent of NT coast still permit free: Hendo’, NT News (Darwin, 13 July 2010) 4. The annual nature of the fee was noted in: AFANT, Annual Report 2010 (2010) 10 As will be discussed in the next section, the TLC did return to the negotiating table in the second era of negotiations. However, their expression of self-determination was a powerful assertion of their rights to control and their intention to action those rights if they perceived the settler-state was not responding adequately. One of the members of the NT Opposition commented that: ‘The Tiwi Islands took on a self-determining responsibility over the Blue Mud Bay decision, the issuing of permits, and how inter-tidal waters are used on the Tiwi Islands. It is their right.’1353 The Tiwi Traditional Owners’ approach represented not only their power but that of the other Traditional Owners in the NT. (b) Traditional Owners represented by the NLC: Rejecting the NT Government’s Proposal In early 2010, the NT Government provided a comprehensive settlement proposal to the NLC for consideration.1354 It appears that this proposal was developed with the NLC for consultation with Traditional Owners. It was not clear what involvement third-party fishing interests had, if any, in these negotiations.1355 The contents of this agreement were never formally released by the NT Government or the NLC and, in response to this, the NT Opposition regularly submitted that there was unacceptable ‘secrecy surrounding [the Blue Mud Bay] negotiations’.1356 Instead, information about the proposal was revealed through ‘leaked’ documents that were quoted in newspaper articles and by members of the NT Opposition. The proposal apparently involved $30.75 million to fund an Aboriginal Fishing Corporation (that would allow for the purchase of fishing licences and businesses) and a $6.4 million once off payment and $120,000 ongoing annual payments for access to specified recreational 1353 Northern Territory, Parliamentary Debates, Legislative Assembly, 6 May 2010, 5599 (Adam Giles). 1354 Northern Territory Government, Budget 2010-11: Northern Territory Economy (4 May 2010) 139 Between 2008 and 2011, the NLC was involved in negotiations with the NT Government. The NLC had engaged consultants to do assessments on the value of the commercial fishing interests to use in the negotiation process, and had ‘looked at governance structures in terms of a statutory authority … to distribute the benefits of the licences and any compensation payment’.1361 One of the major challenges for the NLC, as compared to the much smaller TLC, was that they represented a large area and hundreds of claim groups. The 2010 proposal from the NT Government, was summarised as being for ‘enduring access based on [NT Government] giving a cash payment to help set up a type of body to hold licences for economic development around industry, aquaculture development, that sort of thing’.1362 This proposal was discussed at several NLC community meetings after which, in June 2011, the Full Council1363 of the NLC reviewed the findings of those consultations and rejected the proposal: ‘enduring access was not an option. It just loses sight of the issue of why Blue Mud Bay went to court in the first place: the right to control access to and manage the intertidal land’.1364 From the NLC perspective, it was felt that the Traditional Owners ‘had little time to digest the potential of the intertidal right and [the] NLC hasn’t had the capacity or resources 1357 Kezia Purick, ‘Muddying the Waters’ (n 1355); James Glenday, ‘Millions could be spent to resolve fishing dispute’, ABC News (online, 11 April 2011) In a more subtle way than the TLC, the Full Council of the NLC demonstrated the power that they had to reject the offer of the NT Government and to keep negotiating. Simultaneously, the NLC (representing Traditional Owners) had negotiated a Memorandum of Understanding (‘MoU’) with the National Australia Bank (‘NAB’) for the commercialisation of any benefits that may flow from the Blue Mud Bay Case.1367 The aim of the MoU was for NAB to ‘provide financial expertise to assist the NLC in developing long-term business enterprises’.1368 Similarly to the TLC, this indicated strong commercial aspirations and willingness to engage with third parties when the settler-state was not adequately responding. At the end of this first era of negotiations, the TLC was operating its own permit system and the NLC had rejected the comprehensive settlement proposal put forward by the NT Government (but their interim arrangements had been renewed and were still in place).1369 This first era demonstrated the power of Traditional Owners, through Aboriginal Land Councils, to determine the relationship between the parties and the course of the negotiations. Yet, the NT Government was concerned to look like they were in control. The Chief Minister publicly insisted that negotiations were ‘progressing in a positive way’.1370 The NLC’s rejection of the comprehensive settlement proposal seemed to cause a change in the NT Government’s strategy and they attempted to find ways in which they could assert their governmental authority. 2. 2012-2014: Change of NT Government Strategy - Targeted Areas rather than Comprehensive Agreement In March 2012, the NT Government announced an agreement had been signed over a specific geographic area that had high levels of non-Indigenous recreational fishing: the Daly River 1365 Ibid. 1366 For example: Bradfield (n 1334) 217. 1367 Northern Land Council, ‘MoU to maximise benefit’, NLC Land Rights News (Nov 2011) 3 (south-west of Darwin).1371 This agreement had been negotiated between the NT Government, the Malak Malak Aboriginal Land Trust (the Traditional Owners) and the NLC. It provided permit-free access for recreational fishers with no boat registration requirements and funding for Indigenous marine ranger programs and to develop a Code of Conduct for ‘responsible fishing practices’.1372 Subsequent to the 2010 proposal for enduring access, a new strategy (‘the 2012-2014 agreements’) appeared to be driven by the NT Government and the target areas were ‘directed at…high fishing value areas’.1373 The NLC was responsible for getting the ‘right’ Traditional Owners together, relevant to its statutory responsibility, to meet and negotiate an outcome with the NT Government.1374 Essentially: ‘government comes in and says this is what we are offering, and TOs [Traditional Owners] say yes or no’.1375 Between 2012 and 2014 several agreements were signed.1376 Initially, the NT Government emphasised that their overall strategy was still working towards a comprehensive agreement by July 2012.1377 This did not eventuate. In August 2012, there was a change in government to the Country Liberal Party, but the strategy of negotiating agreements over specific areas continued.1378 Pursuant to an FOI request (lodged for the purposes of this thesis),1379 eight of the licence deeds associated with these 2012-2014 agreements were made available by the NT Government for the purposes of this research.1380 However, the full Settlement Deeds, which 1371 Rob Knight (Member for Daly), ‘Daly River Fishing Deal A Win For All’ (Media Release, 8 March 2012) The standard 2012-2014 agreements set out that the Aboriginal Land Trusts agreed to allow recreational fishers, fishing tour operators and commercial licence holders to enter and carry out activities, including taking fish, in the intertidal zone.1382 In exchange for this, they would be compensated in monetary terms for that access. The amount of compensation varied and was dependent on how many fishers were accessing the area. For example, it was later revealed by the NT Government that the Daly River agreement had cost $153,000 a year to compensate for recreational fishermen; $13,000 a year to compensate for fishing tour operators and an additional $300,000 for the Aboriginal ranger program.1383 All the agreements, bar one, were for a period of twenty years.1384 The Mini Mini/Murgenella FOI request. One agreement, the Tiwi and Vernon Islands Agreement, did not have a Licence Deed so no information on this was released pursuant to the FOI request. 1381 Interview with Dr Lorrae McArthur (n 1361). 1382 For example: Licence Deed between Northern Territory of Australia and Malak Malak Aboriginal Land Trust and Northern Land Council (2014), Clause E (Background) and Clause 4 (Grant of Licences). The agreements also provided that the Land Trust could grant a ‘licence, lease, or other estate or interest’ to another person in the intertidal zone, but they must notify the NT Government of the impact, if any, on fishing. The NT Government, in cases where such a grant would ‘materially adversely impact on access’ can reject or consent to the grant ‘at its discretion, provided that consent will not be unreasonably withheld’: Clause 5 (Future Third Party Interests). The agreements specified that the deed did not derogate or detract from the Traditional Owners’ rights to fish (pursuant to the Fisheries Act), did not extinguish or otherwise affect native title and specified that all fishers must comply with sacred sites legislation: Clause 4.5 (Traditional Owners Continued Use and Access), Clause 6(c) (Terms, Conditions and Reservations) and Clause 8 (Native Title). The agreements also stated that within three years, the NT Government would draft legislation that provided for the Director of Fisheries to consider any conviction pursuant to sacred sites legislation or any submission by the Traditional Owners when determining the grant or renewal of a licence under the Fisheries Act: Clause 10.2 (Cancellation or failure to renew a licence or permit under the Fisheries Act). This was done by implementing a broad ‘fit and proper person test’ which references Ministerial Guidelines that, from the inquiries conducted for this thesis, appear to not yet have been promulgated: ss 17A(2)-B Fisheries Act. There is nothing in the legislation or regulations that requires the Director to consult with Aboriginal Land Councils. 1383 Nigel Adlam, ‘Owners to cash in on new deals’, NT News (Darwin, 17 October 2012) 6. 1384 For example: Licence Deed between NT and Malak Malak Aboriginal Land Trust and NLC (n 1382) Clause 3 (Term). 239 Agreement was only for three years as they took a ‘precautionary approach’.1385 This gave the Traditional Owners at Mini Mini/Murgenella room to re-negotiate in the short term. There was a clause in both the three year and 20 year agreements that, prior to the expiry, the parties would meet and ‘negotiate in good faith’ with a view to extending the agreement.1386 This commitment to negotiate in good faith would not prevent the Traditional Owners from refusing to extend the agreement in the future. One of the standard benefits was a payment to Indigenous marine ranger groups to take an increasing role in sea country management.1387 This benefit was not always easy to implement.1388 For example, some of the Aboriginal Land Trusts under agreement did not have functioning ranger groups.1389 As noted by Dr Lorrae McArthur, NLC Sea Country Policy Officer (2015 to 2018), this ‘created significant front-end challenges with implementation for the NLC’.1390 There was also a potential clash here between the self- determining elements of Indigenous rangers managing sea country and the potential for the settler-state to have a level of control over how that role was undertaken.1391 In response to these agreements, but several years later in 2016, a new class of fisheries inspector was introduced (‘Class One inspectors’).1392 These Class One inspectors had lesser powers than previous fisheries inspectors and were limited to asking fishers for their name, address and 1385 Interview with Dr Lorrae McArthur (n 1361). Also see: Licence Deed between Northern Territory of Australia and Arnhem Land Aboriginal Land Trust and Northern Land Council (Mini Mini/Murgenella) (2014), Clause 3(a) and Willem Westra van Holthe (NT Minister for Primary Industry and Fisheries), ‘Blue Mud Bay Deal Done’ (Media Release, 14 April 2013) In this context, it is useful to reflect on the discussions in Hansard during debate on the Fish and Fisheries Act 1979 about the potential for Aboriginal involvement in enforcement of fisheries1395 and the concerns of the police about enforcement of sea closures.1396 In 2015, even prior to the formal changes to allow rangers to have the role of fisheries inspectors, Simon Xuereb, the Marine Ranger Manager (at the NT Department of Primary Industry and Fisheries) noted that: ‘We’ve got 16 police officers – to do water police and fisheries compliance monitoring around the coast – at the moment I’ve got 135 trained rangers in compliance alone to do that work for us - they value add on reports, we value add with other licensing details, intel, they go out and get the evidence, police fly in and do statements and things like that…’.1397 It is clear that decades after these enforcement issues were first raised they were still relevant. As Simon Xuereb added: ‘Let’s do the maths – divide that by 16 or so police – can’t be everywhere at once’.1398 There was the potential here for the NT Government to request the rangers to undertake roles that were meeting government requirements in terms of surveillance and conservation. In this context, there was a fine line between the rangers using the money from the 2012-2014 agreements to undertake functions directed by their community and rangers taking on responsibilities that the NT Government may have otherwise engaged in additional ‘fee for service’1399 arrangements for such requirements. The practical reality demonstrated potential for the NT Government to be directing how this money was spent instead of allowing Traditional Owners to determine how they will manage their sea country. However, it appears that the distinction between money for rangers that Traditional Owners should be 1393 Fisheries Regulations (n 1392) regs 2AB-2AC. 1394 The NT Department of Primary Industry and Fisheries website noted that Aboriginal rangers were able to qualify for ‘fisheries inspector level 1’ powers: ‘Fisheries compliance training for Aboriginal rangers’, Department of Primary Industry and Resources (NT) (Web Page, 6 November 2017) The agreements made between 2012-2014 appear to demonstrate strong assertions of settler- state governmental authority and, arguably, corresponding weakened assertions of Indigenous authority to control who enters their sea country. However, there is a complex balancing act between negotiating concrete benefits, such as these agreements provided, and seeking control. An important contrast to these agreements was the determination of the Traditional Owners of the upper Finniss River. After negotiating with the NT Government, they did not sign an agreement and no longer permitted any fishers in their intertidal zone.1401 The Finniss River (including the upper part) was an area of high recreational fishing value. The NT News reported that the Traditional Owners of the upper Finniss River took this tough stance because fishers were doing the ‘wrong thing’.1402 This is reminiscent of the evidence put forward during the first sea closure hearing.1403 Similarly to that earlier evidence, it was not clear in the Finniss River context whether doing the wrong thing related to Aboriginal law or settler-state law; both were just as powerful. The NT Fisheries Minister stated that, while he was disappointed, ‘we do have to abide by their decision at this point in time’1404 because the Traditional Owners can ‘simply turn around … and say “no”.’1405 1400 Interview with Steve Roeger (Executive Officer of Dhimurru Aboriginal Corporation from 2002 to 2017) and Vanessa Drysdale (Sea Country Facilitator of Dhimurru Aboriginal Corporation from 2008 to 2015). Vanessa stated that: ‘Turned out there was payment that wasn’t attached to any outcomes as long as we were managing sea country – TOs [Traditional Owners] were happy that the money was being used for that. Prior to that we were of the understanding that fisheries wanted us to conduct patrols, report – very specific…’. Steve then added: ‘So what has come out now – is when we thought we were negotiating part of a deal with the Territory government, NLC has clarified that in fact that is not the case. Territory government has got responsibilities and contributions it has to make. TOs have expectations around what they think Dhimurru will do with some of those funds or in fact all of those funds. That is part of what Vanessa is talking about – something to be celebrated that TOs have actually said we want Dhimurru to have all of these funds.’ 1401 Northern Territory, Petition to Parliament, Legislative Assembly, ‘Petition No 21: Relating to permits for fishing on the Finniss River (Gary Higgins, Member for Daly) Similarly to the situation of the Tiwi Traditional Owners’ approach, the NT Government had to recognise Indigenous control of entry to the intertidal zone. This did mean that the Traditional Owners of the upper Finniss River did not get any potential benefit from the NT Government agreement offered, but they were also free to negotiate with third parties to grant them access. As foreshadowed above, the Tiwi Traditional Owners, through the TLC, also signed one of the 2012-2014 agreements but they negotiated it so that certain areas were restricted.1406 The Tiwi Traditional Owners had leveraged their previous refusal to get the best of both worlds. They negotiated the benefits from the agreement but also stipulated ‘no go’ areas that they still controlled. AFANT did not play a major role in this era of agreement making. In fact, the AFANT 2014 Annual Report stated that they had been ‘specifically requested by the NT Government not to get involved or hold discussions with traditional owners’.1407 Given the standard nature of the agreements on offer, it seems that the NT Government wanted to streamline the process and avoid involving third parties that might complicate the situation. The approach of AFANT to the NT Government started to change over this period. AFANT seemed to start acknowledging that they did not think the NT Government would be able to deliver on their permit-free fishing guarantee across the whole of the NT.1408 This put the interests of AFANT’s members at risk. The language of the NT Government also started to change from securing permit-free access Territory-wide, to securing access to ‘as much of the Territory coastline as possible’.1409 From the NT Government’s perspective, there appeared to be a realisation that the Traditional Owner groups had individual negotiating power and wanted more localised agreements. 1406 Adam Giles (NT Chief Minister) and Francis Xavier Kurrupuwu (Member for Arafura), ‘Historic deal for fishing access on the Tiwi Islands’ (Media Release, 26 November 2014) In this context, the standard agreement approach of 2012-2014 seemed to come to a halt in 2015.1410 The NT Government noted that there were a number of other communities that had ‘a keen interest in holding negotiations with government over individual agreements for those areas’.1411 However, no further standard agreements were negotiated after 2014.1412 The three year Mini Mini/Murgenella agreement was extended annually until at least July 2018.1413 It appears that it was not further renewed and that, therefore, that intertidal zone is now again part of the general permit waiver area.1414 It may be that three years, which was effectively extended to five, was quite a short turnaround to be able to implement programs and determine if they were beneficial. Alternatively, it may be that the community did not see the benefit in these predominantly financial agreements that limited their ability to control access to their sea country. The standard agreements made between 2012-2014 were the only agreements springing directly from the Blue Mud Bay negotiations that have led to concrete outcomes for Traditional Owners.1415 Those outcomes were monetary compensation and ranger funding. The Traditional Owners who signed these agreements have at least benefitted from the financial elements, whilst other Traditional Owners have not seen any direct financial benefit over eleven years. However, the agreements allowed for enduring access (generally for 20 years) to specific areas, and a corresponding loss by Traditional Owners of the ability to control who accessed their intertidal zone. Further, although there was economic gain, there was no sustainable, supported commercial benefit unless the compensation money was invested in such activities. The terms of the agreements appeared to be driven by the settler- state. It seems that the NT Government presented a firm proposal which was generally only open to negotiation around the monetary values and not the broader governance 1410 In 2015, AFANT accused the NT Government of stalling negotiations: La Canna (n 1405). Also see: Northern Territory, Parliamentary Debates, Legislative Assembly, 18 June 2015, 6778 (Ken Vowles). 1411 Northern Territory, Parliamentary Debates, Legislative Assembly, 18 June 2015, 6782 (Willem Westra van Holthe, Deputy Chief Minister). The areas identified were Baniyala, Ramingining, Millingimbi and Ngukurr/Numbulwar. 1412 This was even though in September 2017, in an interview for this thesis, a Chief of Staff to the NT Minister for Primary Industry and Resources stated that: ‘At the moment, the current policy, is that the NT Government has a pro forma offer which is always on the table…in an ideal world we would be happy if the entire coastline was covered by agreements, that is pretty much our policy at the moment’: Interview with Chief of Staff to the NT Minister for Primary Industry and Resources (from August 2016 to November 2017) (n 1274). 1413 Northern Land Council, Access to Tidal Waters on Aboriginal Land (15 November 2017) 1 3. 2015-2018: High Tensions - Towards the Ten Year Mark Between 2015 and 2018, the Traditional Owners, represented by the NLC, appeared to take the lead in the negotiations. The latter part of this era saw the NLC make several announcements suggesting that they would not renew the interim permit waiver arrangements if the NT Government did not respond to their negotiating requests. This led to a high level of tension between the NLC, the NT Government and the fishing parties which came to a head in late 2018. This time of high tensions coincided with upheaval within both the NLC and the NT Government. The NLC had three changes of Chief Executive Officer over late 2018/early 2019.1417 It did not appear that the changes in CEO were directly related to the Blue Mud Bay negotiations but, at this time, it was reported that there were internal disagreements around several issues including the Blue Mud Bay negotiations.1418 In terms of the NT Government, there had been a change of government at the election in August 2016 to a Labor Government. The responsibility for the Blue Mud Bay negotiations had been given to the Minister for Primary Industries and Resources, who later also became the Minister for Aboriginal Affairs, Ken Vowles. Vowles was stripped of both his ministries in December 2018.1419 The reason for the 1416 NLC, ‘Sea Country Working Group’ (n 188). 1417 One CEO, Joe Morrison, resigned in November: ABC editorial team (no named author), ‘Northern Land Council’s Joe Morrison resigns after four years of Indigenous advocacy’, ABC News (online, 14 November 2018) (a) Change in NLC Negotiating Strategy From 2015, the Traditional Owners, represented by the NLC, appeared to change the way that they were approaching the negotiations. Instead of the NT Government coming to Traditional Owners with standard agreements, the NLC started to re-emphasise the aspirations of Traditional Owners to control the intertidal zone and gain economic benefit. In June 2015, the NLC set up an internal Sea Country Working Group of Traditional Owners that would advise on resolving the intertidal zone access issues.1422 Initially, they engaged in consultation with five groups of Traditional Owners to ascertain their aspirations for the Blue Mud Bay negotiations.1423 These consultations led to the development of sea country plans that, inter alia, defined future permit zones for fishing in intertidal waters and outlined ‘specific aspirations for management of the intertidal zone and beyond’.1424 It appears this was a process of defining what ‘control’ looked like, and the decision making capacity that was required to action that. These plans would then inform the comprehensive Blue Mud Bay negotiations. This appeared to be the first time, in the context of the Blue Mud Bay Externally, in 2017, the NLC set up a Sea Country Negotiating and Consultative Committee of which the NT Government, AFANT, NTSC and GFIA were members.1426 This was the first time ‘for many years [that] user groups with interests in the NT’s intertidal zone had met.1427 All ‘parties agreed that a new, cooperative and productive approach [was] needed to implement matters outstanding from’ the Blue Mud Bay Case.1428 The NLC was demonstrating a leadership role here, setting up the consultative committee and inviting the other parties to participate. As noted above, the interim arrangements changed in 2017 from the minimalist licensing regime of free, automatically issued permits to the permit waiver arrangements. These were easier for fishers to comply with, but the change was used by the Traditional Owners to indicate that interim arrangements could no longer be presumed to continue to roll over. The Public Notice1429 announcing the permit waiver stated that the interim arrangements had ‘continued for too long without any significant benefit to Traditional Aboriginal Owners, especially management rights over their sea country’.1430 Further, the extension would allow the NLC to develop a long term permit system.1431 This was a strong indication that Territory-wide permit-free fishing was not on the table from the Traditional Owners’ perspective. It appears that the NT Government was still publicly advocating Territory-wide permit-free fishing as late as August 2018, however, the potential for other options was also being 1425 Ibid. 1426 AFANT, ‘Media Release from AFANT’ (Media Release, 17 November 2017) If you look at it, from 2008-2017, it has not been anywhere near as effective as the government would have wanted so I think it is time to start examining other alternatives…It could very well be…and I stress the word could, that the government could relax its position on permit free access at any cost, so to speak, and that there could be an acceptance that if TOs [Traditional Owners] want an access permit system then the government may facilitate that.1433 The NLC stated in April 2017 that there was ‘an overwhelming desire by Traditional Owners to control access to their sea country’.1434 There was an emphasis on management of sea country and ability to control access, rather than the compensation that was seen in the 2012- 2014 standard agreements. The NLC and Traditional Owners were also telling recreational and commercial fishers not to panic, but to get ready for permits and engagement with Traditional Owners in positive and constructive ways.1435 The NLC was effectively negotiating directly with third parties in ways that were not necessarily subject to the NT Government’s oversight. The NLC suggested that one of the ways to resolve the Blue Mud Bay issues would be to set up a new statutory body to govern sea country that would ‘manage [the marine area] according to good science not the whim and fancy of a politician according to a popular vote’.1436 This suggestion seemed to be broader than the intertidal zone and stretch into other marine areas. It also appeared to contemplate a collaborative approach between the Traditional Owners and the NT Government through establishment of a new legal mechanism. Such an approach challenged the NT Government’s position as the overarching organisation formally governing NT waters. It appears in this era that the NLC’s strategy was to pursue a comprehensive settlement that would have local nuance informed by documents like the sea country plans.1437 This 1432 Matt Garrick, ‘Tides turn to fishing permits’, NT News (Darwin, 18 August 2018) 26. 1433 Interview with Chief of Staff to the NT Minister for Primary Industry and Resources (from August 2016 to November 2017) (n 1274). 1434 NLC, ‘Sea Country Working Group’ (n 188). 1435 For example: Garrick, ‘Tides turn to fishing permits’ (n 1432). 1436 Dias (n 192). 1437 In September 2017, Chief of Staff to the NT Minister for Primary Industry and Resources stated: ‘Potentially, if we look back, it [the response to BMB] has been a little bit piecemeal. I think, if you ask the NLC, they would prefer a more strategic and holistic approach to be taken [to the intertidal zone]…I think there 248 comprehensive approach, and the length of time it would likely take, caused frustrations for some communities.1438 For example, Traditional Owners at Maningrida stated publicly that they were considering closing their intertidal zone to commercial barramundi fishers because the commercial fishers were taking too much.1439 The Maningrida community did not go through with closing the waters, but the history of the upper Finniss arrangements made this proposition a significant threat to fishers. The NTSC began a series of meetings with the community about managing commercial fishing in their sea country.1440 Given the amount of Traditional Owner groups involved, and the length of the Blue Mud Bay negotiations by this point, such disagreement is not surprising. Conflict between Indigenous communities is common in broader settler-state/third-party negotiations involving Indigenous peoples in Australia.1441 Sometimes that conflict is driven by the third parties to weaken the power of Indigenous negotiators, whereas here the third parties and the NT Government were keen to avoid any breakaway groups and appeared to support the NLC as the representative negotiating body. However, this apparent support for the NLC, by both the NT Government and fisheries parties, was not as clear-cut as it might have seemed. A review commissioned by the Commonwealth Government into outstanding ALRA land claims revealed another set of interactions between the parties that did not necessarily match with the concurrent Blue Mud Bay negotiations. is an opportunity to look at something on a broader level; what that might look like, I don’t know. I actually had a discussion with the NLC CEO only on Friday, where he raised that issue with me again, and I asked him, what is your thinking, how do you see it looking and asked him to send me through some information which he has undertaken to do. So, that is something that is emerging at the moment that we are looking at.’: Interview with Chief of Staff to the NT Minister for Primary Industry and Resources (from August 2016 to November 2017) (n 1274). 1438 The Blue Mud Bay community also raised some frustrations: Sara Everingham, ‘Land rights: Arnhem Land traditional owner in landmark talks to take over local jobs, development’, ABC News (online, 5 October 2017) (b) A Preamble to the Flashpoint? The Review of Detriment In May 2017, the then Commonwealth Indigenous Affairs Minister (in the Liberal-National Government that had been elected in 2013, and again in 2016) announced Commonwealth funding of $7.5 million was to be granted to the NLC to ‘help…finalise Aboriginal land claims over sea country’.1442 There were several unresolved Aboriginal land claims, lodged between 1981 to 2004, that generally related to ‘beds and banks of rivers and/or the intertidal zone’.1443 These claims had been recommended to the Minister for grant but had not been finalised because detriment had not been considered.1444 As noted in Chapter V,1445 s 50(3)(b) ALRA required the Aboriginal Land Commissioner to comment on ‘the detriment to persons or communities … that might result if the claim were acceded’.1446 In 2017, the Commonwealth Government commissioned a review (the ‘Review of Detriment’) into these outstanding claims by the Aboriginal Land Commissioner (then Justice Mansfield).1447 It appears that the $7.5 million was to assist the NLC to prepare the legal arguments about detriment in relation to these ongoing claims. However, there was controversy when the Commonwealth Government also gave grants to non-Indigenous third parties, including the AFANT and the NT Seafood Council, to get legal advice in preparation for the Review of Detriment.1448 Justice Mansfield explained that ‘a range of political, legal and procedural factors are likely to have contributed to the delayed resolution of detriment issues’ and that, notably, the Blue Mud Bay Case had ‘impacted on the consideration of detriment in relation to 1442 Nigel Scullion (Cth Minister for Indigenous Affairs), ‘$7.5 million investment in NT Sea Country’ (Media Release, 30 May 2017) 250 beds and banks and [intertidal zone] claims not yet finalised’.1449 In this context, it was noted by both Mansfield J and the NLC that the Blue Mud Bay negotiations would benefit from the information provided by the review and the finalisation of these claims.1450 The review commenced in mid-July 2017 and ran until Justice Mansfield produced his final report in December 2018.1451 In effect, the NT Government and the fishing parties were able to present evidence about what detriment they would face from granting of these intertidal zone claims and the NLC was able to respond. As part of their submissions on detriment, the NT Government raised concerns about their ‘capacity to properly conduct fisheries management’ both in the context of preserving fish stocks and securing ‘fishing access for its citizens’.1452 However, it was clear that these concerns did not emanate from these specific intertidal zone claims but had, in fact, confronted the NT Government after the Blue Mud Bay Case.1453 In particular, the NT Government argued that its Fisheries Harvest Strategy1454 would be impacted if areas of the intertidal zone were controlled by Traditional Owners (for example, if fishing could not take place in certain areas, more fishers might congregate in other areas, affecting fish stocks).1455 Justice Mansfield stated that it appeared the Fisheries Harvest Strategy could be refined to take into account the Aboriginal land grants and that, given the strategy was published in 2016, it was of significance that the implications of the Blue Mud Bay Case did ‘not appear to have been taken into account in the development’ of the strategy.1456 This suggests that the outcome of the Blue Mud Bay Case effectively required a new marine legal and governance paradigm. The settler-state could no longer act unilaterally on legal or policy issues in sea country. It appears the NT Government was either not willing to implement this new paradigm or did not understand what they might need to do to change 1449 Report on Review of Detriment (n 1088) ii. 1450 Ibid iii and NLC, ‘Report into detriment review tabled in Parliament’ (n 1443). 1451 Report on Review of Detriment (n 1088) i. 1452 Ibid 72-73. 1453 Ibid 73. 1454 Department of Primary Industry and Resources (NT), Northern Territory Fisheries Harvest Strategy Policy (December 2016) Recreational and commercial fishing parties also made submissions about detriment. AFANT submitted that if a permit system was introduced for recreational fishers this would be a detriment.1458 In response, the NLC presented evidence of the development of a new permit system.1459 Justice Mansfield determined that the detriment concerns of recreational fishers were likely to be met by the updated permit system.1460 His Honour did note that detriment would arise on the basis of permit fees, but that ‘such detriment [was] likely to be slight’.1461 The NTSC submitted that any loss of commercial fishing area would be a loss ‘of economic opportunities for the Northern Territory including for people who wish to participate in the commercial sector’.1462 Justice Mansfield noted that there might be detriment to commercial fishers, given there were no proposed agreements; however, Mansfield J also stated there was no reason why agreement making might not be adopted whereby commercial fishers could be ‘subject to a negotiated fee and suitable other terms of agreement’.1463 Further, his Honour stated that there was no reason why Traditional Owners ‘would not wish to benefit from the economic opportunities presented by commercial fishing in those areas’.1464 In this context, Justice Mansfield emphasised that it was ‘reasonable to expect that there would be payment for the commercial use of privately owned Aboriginal land’.1465 His Honour was clearly equating Aboriginal private interests with any other private interests in that respect. As part of the Review of Detriment, the NLC submitted that agreements were a key way to resolve some of the concerns (or potential detriment, as the review was focused on) of recreational fishers. In particular, the NLC provided the example of one of the standard agreements from 2012-2014.1466 The NT Government submitted that ‘negotiation of agreements [was] time consuming and resource intensive for Land Councils and…there [was] 1457 This theme will be seen again at Chapter IX, Part C, Section 1 with respect to the NT Coastal and Marine Management Strategy. 1458 Report on Review of Detriment (n 1088) 89-92. 1459 Ibid 92. 1460 Ibid 94. 1461 Ibid 96. 1462 Ibid 99. 1463 Ibid 101. 1464 Ibid. 1465 Ibid 83. 1466 Ibid 77. They referred to this as the Anson Bay Deed. Anson Bay is adjacent to the Daly River mouth, so it appears that they were referring to the Licence Deed between Northern Territory of Australia and Daly River/Port Keats Aboriginal Land Trust and Northern Land Council (Daly River Mouth) (2014). 252 no certainty that agreements for the areas under claim [would] be reached’.1467 Justice Mansfield summarised that both the NT Government’s and AFANT’s submissions questioned ‘whether the NLC intends to negotiate agreements in respect of the current claim areas’.1468 In this context, Mansfield J further noted that: ‘It is impossible to know the negotiating positions of those who, apparently recently, have come to some roadblock in relation to extending the Blue Mud Bay access arrangements’.1469 It appears this roadblock, from the perspective of the NT Government and AFANT, might relate to the new approach of the Traditional Owners in this third era to take the lead on the negotiations. In considering his Honour’s recommendation to the Minister, Mansfield J stated that the NLC was not committing to any particular form of agreement, nor was it appropriate for that to occur in the context of the Review of Detriment, and that the Commonwealth Minister (who was making final decisions about ALRA claims) should not wait until such agreements are made. Rather, the Minister ‘should take the NLC’s general proposal into account on the basis that access agreements may offer a real means of addressing detriment issues …’.1470 Justice Mansfield gave two reasons why the Minister should not wait until agreements are made: ‘it removes from the traditional owners the capacity to make such agreements as they consider appropriate in terms that they consider appropriate’; and if it was a condition of the grant, the Minister would be ‘removing from the traditional owners the opportunity of being in an equal bargaining position with those who seek access to their traditional land’.1471 These comments are affirmations of the strong bargaining position that the Blue Mud Bay Case gave the Traditional Owners and the importance of ensuring it is respected by both the settler-state and third parties. The positions of the parties, as articulated in the Review of Detriment, revealed high tensions between the parties. Justice Mansfield recommended to the relevant Commonwealth Minister 1467 Report on Review of Detriment (n 1088) 74. Further, that any agreement: ‘may not be permanent and not provide certainty and security for commercial development in the areas. It will have an ongoing costs [sic] for the Territory Government and taxpayers, as well as resourcing implications for Government agencies and Land Councils to review and renegotiate agreements on an ongoing basis’: Department of the Attorney-General and Justice (NT), ‘Invitation to participate: Review of detriment issues - Garrwa (Wearyan and Robinson Rivers Beds and Banks) Land Claim No. 178; McArthur River Region Land Claim No. 184 and Mariangoora Region Land Claim No. 185’ (16 March 2018) 12 The submissions of the NLC to the Review of Detriment emphasised the potential for future agreement making. At the same time, the NT Government noted in its submissions that, although seven standard agreements had been made, ‘little progress has been made with regard to negotiating agreements over remaining areas’.1475 This demonstrated the different mindsets of the parties. Of course, these mindsets were presented in the context of the review. The NLC were seeking to minimise any claim to detriment and the NT Government (and third-party fishers) wanted to emphasise all potential detriment. However, these submissions revealed high tensions between the parties as well as frustrations about the negotiating process. These reached a flashpoint in late 2018 (about a month before Mansfield J handed down his final report). (c) Flashpoint: NLC Threaten to Introduce Permits In November 2018, the NLC stated that permits would be introduced on 1 January 2019 if the NT Government did not provide a ‘satisfactory and comprehensive response’ to a submission 1472 In November 2019, a media release stated that: ‘Minister for Indigenous Australians, the Hon Ken Wyatt AM MP, today announced he would move to prioritise grants of land to finalise 15 Indigenous land claims in the Northern Territory’: Ken Wyatt (Cth Minister for Indigenous Australians), ‘Delivering land and economic security in the NT’ (Media Release, 8 November 2019) By these comments, the Minister was acknowledging the power of the Traditional Owners, while also deflecting blame aimed at the NT Government from third parties. The NTSC publicly expressed their frustrations about being left out of the negotiations during this period.1483 They emphasised that they wanted to work with the NLC towards an outcome that would benefit both parties.1484 The third parties were relying on the settler-state to protect their interests. However, the message of the Minister and the NLC was that, into the future, the Traditional Owners would be the people that would determine if, and the extent to which, these interests would be recognised in the intertidal zone. Another theme that started to come across from the third parties and the NT Government was an accusation that the NLC was asking for ‘benefits beyond Blue Mud Bay’.1485 The NTSC 1476 Northern Land Council, ‘Blue Mud Bay: Conditional Waiver Extension’ (n 14). 1477 Ibid and Bardon, ‘Traditional owners threaten to close majority of NT coastline to all fishing’ (n 14). 1478 NLC, ‘Blue Mud Bay: Conditional Waiver Extension’ (n 14). 1479 NT Seafood Council, ‘Unknown conditions not yet met’ (Media Release, 15 November 2018) In late November 2018, the NT Government made an offer of $10 million to ‘develop economic opportunities, create jobs and support work with the NLC and other fishing stakeholders, such as the NT Seafood Council and AFANT, to review the management of … coastal fisheries’.1490 Even though this offer seemed squarely aimed at preventing the permit system being introduced in January 2019, the NT Government insisted that this $10 million was separate to the resolution of the Blue Mud Bay issues.1491 The $10 million was about providing opportunities for Traditional Owners to be involved in fisheries management and growing their involvement in fisheries (including beyond the intertidal zone).1492 In response, the NLC stated that they would extend the permit waiver to June 2019 while negotiations continued.1493 These continuing negotiations were to involve the NLC, NT Government, NTSC and AFANT.1494 A joint media release, of all four of those organisations, stated that the NT Government had proposed a sum of $10 million to ‘facilitate Aboriginal involvement in the commercial fishing sector’ and agreed to negotiate principles to ‘recognise Indigenous 1486 Aikman (n 44) 1487 Jason Walls, ‘Different kettle of fish’, NT News (Darwin, 22 November 2018) 9. 1488 See discussion at: Part B, Section 2 of this chapter. 1489 Aikman (n 44). 1490 Ken Vowles (NT Minister for Primary Industry and Resources), ‘Media Release’ (Media Release, 22 November 2018) This era of high tensions emphasised the Traditional Owners’ aspirations for greater control. However, exactly what control might encompass was not defined on an overarching level. The method for defining what control might look like was to start developing local sea country plans that could then inform the comprehensive settlement. One element of the aspiration that was clear was that it was not limited to the intertidal zone. There was an aspiration for the ability to have some control, and decision-making capacity, in NT waters more broadly. This era also highlighted the commercial aspirations of the Traditional Owners. The relationship between aspirations for control and commercial development could be complex. For example, if the permit system had been enforced on 1 January 2019, there was a risk that neither the NT Government, nor the fishing parties, would support the commercial aspirations of Traditional Owners. In this context, Vowles noted that the ‘imposition of a permit system cannot be considered as a driver of Aboriginal economic development’.1496 The strategy of the NLC to threaten to introduce a permit system, but then accept an initial offer from the NT Government, meant that the NLC gained both the $10 million commercial offer and the continuance of the negotiations around control. 4. Conclusions and Contemporary Negotiations The extension of the permit waiver at the end of 2018 had a calming effect after the high tensions. In July 2019, with a new NLC CEO and a new responsible Minister, all parties signed a Heads of Agreement that set the framework for further negotiations and included a further 18 month permit waiver. The terms of this Heads of Agreement were not publicly available and an FOI request for the purpose of this thesis was unsuccessful.1497 The media 1495 Ibid. 1496 Matt Garrick, ‘Northern Territory fishing permit system could be delayed, verdict expected this week’, ABC News (online, 14 November 2018) It was reported that the Heads of Agreement also set out that Traditional Owners would be actively involved in the commercial industry, and that there would be a comprehensive review of fisheries legislation and policy with the involvement of all parties (including a regional focus that would give Traditional Owners ‘real input’).1500 These were broad terms and none of these ideas were unique at this stage in the process. The potential points for agreement appeared to go beyond the intertidal zone and made clear that such broader negotiations were possible. The NT Government appeared to have ceased trying to uphold a distinction between Blue Mud Bay and non-Blue Mud Bay negotiations. At the end of eleven years of negotiation, the NT Government has not been able to deliver on its original guarantee of Territory-wide permit-free recreational fishing (essentially to non- Indigenous Territorians). Through the negotiations, the Traditional Owners, represented by Aboriginal Land Councils, have challenged the NT Government’s authority as the overarching governance body of the marine area. The negotiating process demonstrates several times when the TLC and NLC, or particular Traditional Owner groups, have enforced their rights to control entry by either requiring permits or threatening to require permits. This enforcement of rights appears to have led to two opportunities in relation to the potential final outcome: that the agreement will reach beyond the intertidal zone and will include involvement in management of NT waters more generally; and the agreement will include some sort of commercial fishing package. These opportunities appear to flow directly from the outcome of the Blue Mud Bay Case, but they go beyond the legal rights that were determined in the case. In that context, this analysis of the negotiations, over the three eras, 1498 Chris McLennan, ‘Fishing deal moves closer with Nitmiluk agreement’, Katherine Times (Katherine, 27 June 2019) [available through Factiva database]. 1499 NLC, ‘New NLC permit system: A stronger system for a stronger country’ (n 1431). 1500 McLennan (n 1498). 258 demonstrates how the outcome of the case has been leveraged and how the relationships between the parties have changed over the course of the negotiations. E. Conclusion After eleven years of negotiations, Aboriginal people are still not controlling entry to the intertidal zone across the NT. However, throughout the Blue Mud Bay negotiations, the Traditional Owners emphasised their legal right to control entry to the intertidal zone. This was actioned, or threatened to be actioned, in practical ways. During the negotiating process, Traditional Owners, and the Aboriginal Land Councils representing them, were challenging the NT Government’s monopolistic authority to govern the marine space. This included negotiating directly with third-party fishing organisations. Arguably, this was stepping into the traditional role of the settler-state to negotiate between interests of their ‘citizens’. The legal right to control entry to the intertidal zone was also used as a bargaining chip to negotiate further opportunities. The two opportunities that the Traditional Owners particularly sought were involvement in management of NT waters (beyond the intertidal zone), and support to build an Indigenous commercial fishing industry. It appears that both of these opportunities are still prominently on the negotiating table. As noted in the introduction to this chapter, after focusing on specific legal elements in Yarmirr HCA and the Blue Mud Bay Case, the political negotiations presented the opportunity to put broader Indigenous aspirations, which were first articulated during the Woodward Commission,1501 onto the negotiating table. These aspirations have been on the table now for eleven years and have become clearer since the change in the NLC’s negotiating strategy from 2015 onwards. It took the NT Government some time to accept that they would not secure permit-free recreational fishing Territory-wide, and that they would need to negotiate beyond the intertidal zone. Negotiating beyond the intertidal zone was necessarily more complicated and required an integrated approach with broader marine strategic planning. In this context, this chapter also revealed, particularly through the comments of Mansfield J in the Review of Detriment, that the outcome of the Blue Mud Bay Case effectively required a new marine legal and governance paradigm. The settler-state could no longer act unilaterally on legal or policy issues in sea country. Traditional Owners 1501 See discussion at: Chapter IV, Part C, Sections 1 and 2(c). 259 had recognised property rights in the intertidal zone and these had to be taken into account by the settler-state. As of mid 2020, Traditional Owners in the NT have secured three main legal rights, in the settler-state law context, over sea country: the two sea closures still exist in the NT;1502 native title rights can be claimed (Australia-wide) over sea country on a non-exclusive basis;1503 and the right to control entry to the intertidal zone, pursuant to the ALRA, as determined by the Blue Mud Bay Case with the accompanying unresolved negotiations analysed in this chapter. Looking across all these legal rights, perhaps the outcome that holds the most potential is the changed legal and governance paradigm post the Blue Mud Bay Case. Further, it appears that for the Blue Mud Bay negotiations to work towards some form of resolution, both Traditional Owners and the settler-state need to engage with broader questions about Indigenous aspirations for involvement in marine governance. In this context, the final chapter draws together the underlying Indigenous assertions of sovereignty, and how they have been reconciled with settler-state assertions of sovereignty, across the episodes. It then turns to consider the ways in which the settler-state and Indigenous peoples are currently functioning within the new, post-Blue Mud Bay Case, legal and governance paradigm. 1502 Coupled with all their limitations discussed at Chapter V, Part B, Section 3. 1503 Even though, arguably, as discussed at Chapter VI, Part C, Section 3(b), this does not give many rights above and beyond what Indigenous peoples could do prior to any native title determination. 260 IX. CONCLUSION: BEYOND THE BLUE MUD BAY NEGOTIATIONS— RECONCEPTUALISING THE SEA COUNTRY LAW AND GOVERNANCE PARADIGM A. Introduction More than a decade ago, the High Court handed down its decision in the Blue Mud Bay Case. Traditional Owners in the NT are still not currently controlling access to the waters of the intertidal zone as the Blue Mud Bay Case determined was their legal right. However, the ongoing, and sometimes tumultuous, negotiations demonstrate that the Traditional Owners are powerful actors in possession of strong legal rights. The Traditional Owners are challenging the NT Government’s authority as the only and ultimate decision maker in relation to sea country. Both Aboriginal people and the settler-state are asserting sovereignty and their co-existing authority to govern sea country in the NT. This thesis demonstrates the reconciling of these sovereignties began well before the Blue Mud Bay Case and continues to shape the way the contemporary negotiations have progressed. This final chapter has two parts. Part B presents a brief recapitulation of the historical narrative of reconciliation of Indigenous and non-Indigenous sovereignties in the context of sea country. This summary focuses on how the six assertions of sovereignty1504 draw together the otherwise relatively unconnected episodes. Part B concludes by arguing that the outcome of the Blue Mud Bay Case effectively required a new marine law and governance paradigm. The settler-state could no longer unilaterally make decisions about sea country. This then leads into Part C that discusses the different approaches that the settler-state and Indigenous peoples have taken, so far, in response to this new paradigm. In this context, Part C analyses two contemporary examples of marine strategic planning that have been implemented concurrently with, but outside of, the Blue Mud Bay negotiations: the NT Government’s implementation of its inaugural Marine Management Strategy and the establishment of the Indigenous-led Dhimurru Sea Country IPA. The discussion of these examples leads to an examination of how Indigenous-led governance models, that already exist within the settler- state framework, might assist with moves towards a type of reconciling of assertions of sovereignty that would recognise Indigenous peoples and the settler-state as equal partners in decision-making about sea country. 1504 See discussion at: Chapter II, Part D. 261 B. Historical Narrative of Reconciling Indigenous and Non-Indigenous Sovereignties in the Context of Sea Country The episodes presented in Chapters IV to VIII of this thesis reveal a historical narrative of reconciling of Indigenous and settler-state assertions of sovereignty in the context of sea country. It is clear from the brief recapitulation presented in this chapter that what draws these episodes together is these assertions of sovereignty over time. The recognition of Indigenous sea rights by the settler-state through separate legal mechanisms (sea closures, native title, intertidal zone in the ALRA) and the emergence of Indigenous involvement in sea country governance mechanisms (particularly seen in the context of the CZ Inquiry and the Blue Mud Bay negotiations) could appear disjointed. However, the assertions of sovereignty have ranged across the episodes. Each of the assertions have not necessarily been strongly asserted in all of the episodes (though, the Indigenous concept of permission was raised across all episodes), but all of the assertions have appeared in more than one episode across the narrative. Drawing out these assertions of sovereignty makes these otherwise unconnected episodes part of an overarching narrative that leads us to the ongoing Blue Mud Bay negotiations. Before moving on to consider the episodes, it is important to reflect on why these episodes seem disjointed. In this context, it is useful to ask: what does this narrative reveal about law, governance and the law/governance divide?1505 Legal recognition of Indigenous relationships to the sea in the NT has been piecemeal. The settler-state (sometimes NT and sometimes Commonwealth) seemed to lurch from one legal mechanism to the next. There was no sense of the settler-state systematically looking to develop the recognition of sea country rights by, for example, learning from the identified inadequacies of some of the legal mechanisms (like sea closures) or seeking feedback from Indigenous peoples. Meanwhile, understandably, Indigenous peoples were trying to use any state law legal mechanisms available to them to achieve recognition of their sea rights. In the process of attempting to claim legal rights, Indigenous peoples were able to voice their aspirations for control over their sea country either through the apparatus related to these legal mechanisms, such as sea closure hearings and evidence in the trial of Yarmirr FC, or through broader conversations about governance. In particular, the conversations in the context of the CZ Inquiry and the Blue Mud Bay 1505 See discussion at: Chapter II, Part D, Section 1. 262 negotiations have allowed discussion of Indigenous involvement in commercial fishing and sea country management beyond the intertidal zone. Returning to the episodes, as seen in Chapter IV, it appears that the first opportunity for Aboriginal people to provide evidence about Indigenous relationships to the sea, in a formal settler-state context, was as a result of Aboriginal people raising those issues during the Woodward Commission.1506 The NLC raised the spiritual and economic relationship that Indigenous peoples had with sea country and advocated that people who were not Traditional Owners should require a permit to enter sea country. The notion that, pursuant to Indigenous laws, people (Indigenous and non-Indigenous) who were not Traditional Owners required permission to enter Aboriginal country first emerged, in the non-Indigenous research context, from anthropological work.1507 The Gove Land Rights Case and then the Woodward Commission led to the emergence of permission as a legal concept beyond its anthropological significance.1508 The concept of permission then featured in all the episodes going forward: the notion of strangers was included in the sea closure legislative provisions as a way of recognising the permission principle;1509 the permission principle was emphasised in evidence, particularly in relation to the factual findings, in the Yarmirr cases1510 and the claim in Gumana FC;1511 and it was then specifically referenced by the TLC in relation to their decision-making about their intertidal zone.1512 Yet, at almost every turn, there was a way for the settler-state to read down these permission requirements so as to ensure the prioritisation of non-Indigenous, third-party rights. The exception to this was, to some degree, in relation to the limited context of the intertidal zone and the TLC’s negotiations. Following the Woodward Commission, the examination of the initial legislative debates about land and sea rights demonstrated that there was a genuine sense, from the settler-state perspective, that Indigenous interests were valid and worthy of recognition.1513 However, the drafting of the first land rights bill by the NT Legislative Assembly and the submissions to, 1506 See discussion at: Chapter IV, Part C. 1507 See discussion at: Chapter III, Part C, Section 3. 1508 See discussion at: Chapter IV, Part B, Section 1(a) and Part C, Section 1. 1509 See discussion at: Chapter V, Part B, Section 1(a). 1510 See discussion at: Chapter VI, Part C, Section 2(b) and 3(b). 1511 See discussion at: Chapter VII, Part B, Section 3. 1512 See discussion at: Chapter VIII, Part D, Section 1(a). 1513 See discussion at: Chapter IV, Part D. 263 and recommendations of, the Joint Select Committee on Aboriginal Land Rights in the NT, saw the emergence of assertions of governmental authority (by requiring Aboriginal people to apply for sea closures, and not allowing automatic grants) and obligations to provide certain classes of people with open third-party access without requiring permission. The final recommendations of the Committee revealed the choice made to ensure settler-state control of marine areas and prioritise non-Indigenous third-party interests.1514 Chapter V then explored the settler-state’s first attempt at a state law legal mechanism that recognised Indigenous interests in sea country in the NT. Sea closures only provided a restricted form of control to Indigenous peoples; the ability to control entry of limited classes of persons into the sea closure.1515 The exemptions (general and commercial fishing) to the sea closure significantly undermined the ability of Indigenous communities to control who entered the sea closure and, in the process, did not respect the permission principle. Further, there was a practical lack of ability for the settler-state to enforce sea closures, and no consideration was given to allowing Aboriginal people to undertake an enforcement role.1516 In effect, the settler-state was providing a legal mechanism to recognise Indigenous rights but was then not able to ensure delivery of that protection. However, the first sea closure hearing gave the Yolngu community the opportunity to articulate Indigenous laws relating to sea country (and their interaction with settler-state laws), contemporary Indigenous use rights (both subsistence and commercial) and the type of control the Yolngu community were seeking.1517 From the Yolngu perspective, it seemed that control was about having decision- making authority to determine who entered the sea closure and for what purposes. The beginning of Chapter VI then focused on the evolving legal, policy and academic conversation post-sea closure (and post-Mabo but pre-Yarmirr HCA) about recognising Indigenous relationships to sea country through law or governance mechanisms. In the context of the CZ Inquiry, much of this conversation focused on Indigenous involvement in sea country governance and emphasising that the settler-state should not be the only, and ultimate, decision maker in relation to the marine space.1518 The CZ Inquiry also revealed the start of Indigenous-led governance bodies, such as Dhimurru, that had sea country governance aspirations. The commentators in the context of the CZ Inquiry (generally non- 1514 See discussion at: Chapter IV, Part D, Section 3(d). 1515 See discussion at: Chapter V, Part B, Section 2. 1516 See discussion at: Chapter V, Part B, Section 3. 1517 See discussion at: Chapter V, Part C. 1518 See discussion at: Chapter VI, Part B. 264 lawyers who worked in sea country governance), were careful not to rely too much on what native title might provide. In particular, there was a sense that native title might not be able to deliver the type of control that Indigenous communities were seeking over sea country. This cautious approach was warranted. Yarmirr HCA limited native title rights to sea country to non-exclusive rights due to the competing international right of innocent passage and public rights to fish and navigate.1519 Therefore, the Indigenous claimants could use their sea country, but they could not prevent others from using those seas (nor could they require people to ask permission). The majority in Yarmirr HCA described the settler-state’s assertion of sovereignty as a right to legislate (somewhat akin to the assertion of governmental authority),1520 but the outcome relied heavily on the settler-state’s asserted obligation to provide open access. This was a prioritisation of third-party, non-Indigenous rights in the sea. The Aboriginal claimants and Justice Kirby (in his separate judgment) offered up a form of ‘qualified exclusivity’ whereby the claimants were willing to accept that third-party rights would have priority over their otherwise exclusive rights.1521 However, the majority were not open to considering this form of more sophisticated reconciliation. The finding of non- exclusive rights in Yarmirr HCA could have had a dampening effect on the broader conversation about sea country rights and governance. In this sense, while recognition of legal rights can provide a bargaining chip, the corollary was that when exclusive rights were not recognised this had the potential to limit what the settler-state felt compelled to negotiate with Indigenous peoples. As described in Chapter VII, a legal turning point came with the Blue Mud Bay Case. The legislative context of the ALRA meant that the public right to fish went from being an all- encompassing reason to reject exclusive Indigenous rights in the Yarmirr cases, to a historical doctrine that was abrogated in the contemporary context.1522 Although the Yolngu people presented their assertions of sovereignty over sea country (including the permission principle) to the trial judge, the legislative context of the ALRA meant that, in terms of the intertidal zone, the Yolngu people were in fact relying on an inter-societal form of legal recognition of their rights. The outcome in the Blue Mud Bay Case effected a legal reconciliation of 1519 See discussion at: Chapter VI, Part C, Section 3. 1520 See discussion at: Chapter VI, Part C, Section 3(a). 1521 See discussion at: Chapter VI, Part C, Section 3(b)(iii). 1522 See discussion at: Chapter VII, Part C. 265 Indigenous interests with third-party interests that disturbed the contemporary structure of authority in the intertidal zone.1523 Yet, the outcome of this case did not precipitate any immediate practical response in the intertidal zone. Chapter VIII revealed the extent of the protracted Blue Mud Bay negotiations and the different eras of relationships between the parties. The legal control over the intertidal zone, emanating from the Blue Mud Bay Case, was used as a bargaining chip to negotiate broader legal and governance opportunities. The two opportunities that the Traditional Owners have sought are involvement in management of NT waters, beyond the intertidal zone, and support to build an Indigenous commercial fishing industry. It appears that both these opportunities are still on the contemporary negotiating table. Further, it became clear, and it was to some extent usefully articulated by Justice Mansfield in the Review of Detriment, that the outcome of the Blue Mud Bay Case effectively required a new marine law and governance paradigm.1524 The settler-state could no longer unilaterally make decisions. Traditional Owners had recognised rights in the intertidal zone and these had to be taken into account by the settler-state in all decision-making about sea country. Even if not explicitly stated, across all the episodes, spiritual authority over sea country has been at the base of Indigenous assertions of sovereignty (most evidently seen in the trial evidence of Gumana FC).1525 Use rights, both in terms of subsistence and commercial fishing, also featured across the episodes. The notion that Aboriginal people had aspirations of involvement in the commercial fishing industry was first raised during the Woodward Commission,1526 and then again during the CZ Inquiry.1527 However, it was Indigenous assertions of the ability to control who enters sea country, most often expressed through the permission principle, that have been most prominent throughout all the episodes and across evidence in royal commissions and litigation, submissions to legislatures and negotiations. The permission principle was almost always presented in nuanced ways. The communities did not seek to exclude people on a blanket level, but they wanted to be able to know who entered and for what reasons so as to determine if there were appropriate grounds to give permission. The reason for the ‘almost always’ was the example of the upper Finniss River 1523 See discussion at: Chapter VII, Part D. 1524 See discussion at: Chapter VIII, Part D, Section 3(b). 1525 See discussion at: Chapter VII, Part B, Section 2. 1526 See discussion at: Chapter IV, Part C, Section 2(c). 1527 See discussion at: Chapter VI, Part B, Section 2. 266 during the Blue Mud Bay negotiations.1528 When communities were pushed by non- Indigenous people doing the ‘wrong thing’ they would ban people, but there was a reason for that: wrongs, whether they be against Indigenous or settler-state law, had consequences. Finally, the assertion of the ability to make broader governance decisions about sea country was often brought up in the context of the permission principle (such as the evidence of Mary Yarmirr),1529 but were voiced more so outside the context of litigation. The conversations in the context of the CZ Inquiry and then the Blue Mud Bay negotiations revealed assertions of the place of Indigenous peoples in wider involvement in marine governance. These assertions of Indigenous sovereignties have been put before the settler-state since at least the Woodward Commission. In this context, the challenge for the new law and governance paradigm is to assist the settler-state to acknowledge, and appropriately respond, to these assertions of sovereignty in sea country. C. Contemporary Settler-State and Indigenous Approaches to the New Law and Governance Paradigm In the contemporary context, the settler-state and Indigenous peoples have taken different approaches to this new paradigm. This section will analyse two examples that demonstrate these contrasting approaches: the NT Government’s implementation of its inaugural Marine Management Strategy and the establishment of the Dhimurru Sea Country IPA. Both examples have been implemented concurrently with, but outside of, the Blue Mud Bay negotiations. Further, both examples provide opportunities for recognition of assertions of sovereignty and co-existing authority in sea country. 1. Coastal and Marine Management Strategy In 2018, consultations took place on the inaugural NT Marine Management Strategy, and it was finalised in 2019.1530 The Marine Management Strategy emphasised Aboriginal control 1528 See discussion at: Chapter VIII, Part D, Section 2. 1529 See discussion at: Chapter VI, Part C, Section 2(b). 1530 Lauren Moss (NT Minister for Environment and Natural Resources), ‘Public consultation begins on inaugural Coastal and Marine Management Strategy’ (Media Release, 25 January 2018) The aim of the Marine Management Strategy is to develop marine spatial planning1534 in the NT over the next ten years (2019-2029).1535 This new planning strategy has the potential to significantly change the way marine governance operates in the NT; it will be integrated, across different legal and governance regimes and stakeholders, and more localised (split into regions). The NT had been criticised for not adopting a more strategic approach to marine planning earlier and there were some unsuccessful attempts, particularly in relation to marine protected areas.1536 The Marine Management Strategy is to be commended for starting the move towards integrated marine planning, which is a difficult, but important, goal that can have social, economic, environmental and cultural benefits. It could be argued that the Blue Mud Bay Case, and associated negotiations, produced uncertainty that made such strategic planning harder from a settler-state perspective.1537 In this context, perhaps it was the continuing Blue Mud Bay negotiations, and the settler-state’s approach to them, that led to a in this plan that were relevant to sea country. However, the plan did not contain a high level of detail. Action One was to ‘resolve all outstanding land claims’: at 9. This links to the discussion at Chapter VIII, Part D, Section 3(b). Action Two was to ‘[r]esolve the Blue Mud Bay access agreements’: at 10. However, the only detail proposed pursuant to this action was: ‘The NT Government will work with the Northern Land Council and key industry groups to resolve issues arising from the 2008 Blue Mud Bay High Court decision with a view to providing long-term certainty for Traditional Owners, key stakeholders, industry and business operators, and the general public.’: at 10. Action Four was to ‘[d]evelop an NT Government Native Title Policy Framework’ and this included developing ‘a strategic whole-of-government policy framework’ with respect to native title rights and interests over sea country: at 11. Action Eight was to ‘[s]upport economic development and employment on Aboriginal land’ and this included ‘support’ for land councils to secure Australian Government/corporate assistance for ‘economic development agencies or corporations including pilot projects’: at 15. 1531 NT Government, Coastal and Marine Management Strategy (n 8) 2. 1532 Ibid. 1533 Northern Territory Government, Coastal and Marine Management: Discussion Paper – Our Coasts and Seas (2018) 3 Although the Marine Management Strategy acknowledged the ‘ownership and rights’ of Aboriginal people in the ‘coast and intertidal zone’ (not sea country),1538 in the Discussion Paper Aboriginal people were identified as one of the groups that had ‘shared responsibility’ for managing marine and coastal environments alongside the NT Government, ‘industry and community’ and the Commonwealth Government.1539 Similarly, the Marine Management Strategy identified the importance of Aboriginal interests at the beginning,1540 but the first guiding principle of the strategy was that ‘[a]ll Territorians have a role in the management of our coasts and seas’.1541 Whilst it may be accurate that all Territorians do have a role to play, listing that as the first principle could be interpreted as putting an emphasis on formal equality. This arguably has a corresponding emphasis on the notion that Aboriginal people do not have special interests that put them above others in terms of governance of the seas. There were three guiding principles associated with Aboriginal people, but only one that was specific. The fourth principle was that ‘Aboriginal land-owner rights and interests are recognised and … [Traditional Owners] supported to participate in decision-making processes’.1542 The use of the term ‘land-owner’ could be read as not inclusive of Indigenous peoples’ relationships with sea country. The other two principles were broader, and related to both Indigenous and non-Indigenous interests: that ecologically sustainable development was fundamental, including in relation to ‘customary practices of Aboriginal custodians and society’ (this harks back to the potentially problematic Indigenous/conservation relationship highlighted in Chapter II);1543 and that ‘management decisions should be based on the best available evidence’ including traditional (Indigenous) knowledges.1544 This places Indigenous knowledges amongst other knowledge sources without any sense of priority. The guiding principles of the Marine Management Strategy gave Aboriginal people a role as one of the key parties involved in marine planning and governance, but this role was arguably not commensurate with what the new law and governance paradigm required. 1538 NT Government, Coastal and Marine Management Strategy (n 8) 2. 1539 NT Government, Coastal and Marine Management: Discussion Paper (n 1533) 3. 1540 NT Government, Coastal and Marine Management Strategy (n 8) 2. 1541 Ibid 7. 1542 Ibid. 1543 See discussion at: Chapter II, Part D, Section 1(b). 1544 NT Government, Coastal and Marine Management Strategy (n 8) 7. 269 At the very least the new paradigm requires the NT Government to reach out to Indigenous peoples specifically during the drafting process. Indigenous peoples need to be seen as equal partners and more than stakeholders. The NLC’s submission in response to the Discussion Paper noted that there had been ‘limited involvement of, or attempts to engage’ Traditional Owners during the formulation of the draft Marine Management Strategy.1545 The mere fact that the NLC felt that it was not included in the drafting of such an important overarching strategy indicates that Traditional Owners are still not being recognised by the settler-state as performing a high level role in governance of sea country. Further, the NLC appears to be the only Indigenous organisation that provided a written submission.1546 The reason other Indigenous organisations did not provide written submissions, and whether they had any other contact with the NT Government as part of the process, is unclear. However, the new paradigm requires the NT Government to prioritise specific consultation with Traditional Owners, Aboriginal Land Councils and other Indigenous land and sea management organisations. The Marine Management Strategy proposes implementing, and to some extent experimenting, with marine spatial planning over the next ten years (and likely beyond). This gives the NT Government the opportunity, right now, to reconceptualise the Marine Management Strategy to focus on reconciling assertions of sovereignty and co-existing authority over sea country. Immediately prior to this thesis being submitted, on 29 April 2020, the NT Government announced that the management plan for its second marine park was operational: the Limmen Bight Marine Park Management Plan (‘Limmen Bight Plan’).1547 Even though the Limmen Bight Marine Park was declared in 2012,1548 the Limmen Bight Plan was a ‘key deliverable’ 1545 NLC, Submission to Northern Territory Government Department of the Environment and Natural Resources on Coastal and Marine Management Strategy 2018 (2018) 2 The Limmen Bight Plan appears to represent the Marra Traditional Owners as more akin to partners with the settler-state in sea country management than the overarching Marine Management Strategy expressed.1553 The Media Release announcing the Limmen Bight Plan had several quotes from each of the relevant Minister and representatives of the Marra Traditional Owners.1554 The Marra Traditional Owners’ representative endorsed the Limmen Bight Plan, noted they were ‘grateful to the [NT] Government for their investments and engagement’ and stated that the plan ‘reflects many of our aspirations and values for country and enshrines the Government’s commitment to respect these and support Marra to sustain [their] pivotal role in the management of Marra land and sea for future generations’.1555 Further, the Marra Traditional Owners’ representative stated: ‘We expect the Northern 1549 NT Parks and Wildlife Commission, Limmen Bight Marine Park: Plan of Management (n 905) 5. 1550 Territory Parks and Wildlife Conservation Act 1976 (NT) s18. 1551 Ibid and s19. Also see: Northern Territory, Minutes of Proceedings, Legislative Assembly, 11 February 2020 (the Limmen Bight Plan was a ‘deemed paper’ and there was no reference to it in the Hansard of that day) and Minister for Tourism, Sport and Culture (NT), ‘Territory Parks and Wildlife Conservation Act 1976 Notice of Operation of Plan of Management Limmen Bight Marine Park’ in Northern Territory, Government Gazette, No G18, 6 May 2020, 5. 1552 NT Parks and Wildlife Commission, Limmen Bight Marine Park: Plan of Management (n 905) 3. Interestingly, one of the challenges they brought up in the Limmen Bight Plan was the ‘unclear tenure boundaries, especially in the intertidal zone’. See discussion at: Chapter V, Part B, Section 3 and Chapter VIII, Part D, Section 3(b). 1553 It is notable that the Limmen Bight Marine Park is not formally co-managed in the way that the other NT marine park (the Cobourg Marine Park) is. Joint management arrangements are set out in the Territory Parks and Wildlife Conservation Act 1976 (NT) Part 3. Also see discussion at: Chapter VI, Part B, Section 2. There is also no indication in the Limmen Bight Plan that formal (statutory) joint management is a future goal. Formal joint management includes legislation that sets out the decision-making body for the marine park. For example: Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1996 (NT). The advantage of such formality is that the governance model is set out in legislation; whereas, the disadvantage is that there is no flexibility in how a governance model might develop. Such a legislative process would also be required to be passed by the Legislative Assembly (rather than just laid before the Legislative Assembly as with the Limmen Bight Plan) and would be likely to be more contentious. 1554 Moss, ‘Limmen Bight Marine Park Plan of Management Operational’ (n 905). There was also a much shorter section with only two quotes from one environmental conservation body. 1555 Ibid. 271 Territory Government will honour the agreed conditions…in good faith’.1556 This statement indicates a sense that the Traditional Owners are putting the settler-state on notice that there is an element of compliance required on their behalf in this ongoing relationship. The Limmen Bight Plan states that the Marra Traditional Owners are ‘well positioned to play an important role in the day-to-day management of the Marine Park’ and that they have a ‘strong desire to be involved in decision-making’.1557 There were four objectives presented as part of the Limmen Bight Plan. The first was to ‘establish regional cooperation and good governance’, and the second to ‘respect Marra cultural and employment aspirations’.1558 The good governance objective, similarly to the Marine Management Strategy, did use the word ‘stakeholders’ in relation to who should be involved in decision-making.1559 It listed a wide range of groups including Traditional Owners, commercial fishers and recreational fishers.1560 However, it did then identify, immediately following the list, that Marra Traditional Owners should be ‘providing a lead role in decision-making’ (which was something the Marine Management Strategy did not do).1561 Beneath the four overarching objectives, there were several principles including ‘respect for customary law’: Customary Marra law is strong in Limmen Bight and all collaborations, programs and projects will be better served if this is respected. Decisions should be made in consultation with Marra Minirringki, Jungayyi and Darlyin [descriptions of different kinds of Traditional Owners],1562 inclusive of customary law and with free, prior and informed consent.1563 1556 Ibid. 1557 NT Parks and Wildlife Commission, Limmen Bight Marine Park: Plan of Management (n 905) 3. They also noted that the Marra Traditional Owners had developed their own Sea Country Access and Use Plan in 2018, partially in response to the Blue Mud Bay Case, in relation to managing the intertidal waters and coastline: at 6. This was part of the planning process undertaken by the NLC referred to at (n 1424) and the associated text. 1558 NT Parks and Wildlife Commission, Limmen Bight Marine Park: Plan of Management (n 905) 7. 1559 Ibid 9. 1560 Ibid. 1561 Ibid 9-10. The Limmen Bight Plan noted that the NT Government committed to ‘“Right way” Traditional Governance’ for decision-making about sea country: at 18. However, the term ‘right way’ was not further defined and it is not a common term more broadly. It appears likely to be an interpretation of an expression that may have been adopted by some of the people involved in the drafting of the Limmen Bight Plan. 1562 These concepts are translated and defined in the Limmen Bight Plan. They are described as ‘semi-moieties that define responsibility and which country a person belongs to: Minirringki (often translated as ‘owner’) - belong to land and sea through their father’s father; Jungkayi (often translated as ‘guardian’ or ‘policeman’) - speak for the country of their mother or mother’s father; Darlyin - these are people who can speak for the country of their mother’s mother’s brother.’: Ibid 10. Also see discussion on moieties at: Chapter III, Part C, Section 1. 1563 NT Parks and Wildlife Commission, Limmen Bight Marine Park: Plan of Management (n 905) 9. 272 The Limmen Bight Plan has three pages detailing Marra Law relating to Sea Country.1564 This is quite substantial for a settler-state government document and, in some respects, reads more like an IPA management plan that was written by an Indigenous organisation. However, it is noticeable that the substantive sections on the remaining two objectives in the Limmen Bight Plan – conserving and protecting biodiversity and enabling sustainable recreational and resource use – have less of a focus on the Traditional Owners and are not focused on Marra law in the same way.1565 Further, the reference to ‘free, prior and informed consent’1566 does not have any substance to it, as yet, beyond the ‘good governance’ objective that the framework provide for Traditional Owners to play a leading role.1567 It is significant that the Limmen Bight Plan identifies that Marra Traditional Owners ‘expressed an interest in developing ways to benefit socially and economically from Limmen Bight’ through commercial fishing (directly or indirectly through leasing/licensing), tourism operations and the ‘emerging ecosystem services industry’.1568 Mara Traditional Owners were asserting their aspiration to benefit from their sea country as part of the marine park. These aspirations were perhaps in tandem with, or in addition to, any discussions they may have had in relation to the Blue Mud Bay negotiations. The main mechanisms for Aboriginal participation that the Limmen Bight Plan proposes are partnerships with an Aboriginal Sea Country Ranger program1569 that will be formed and the establishment of a Sea Country IPA by the Traditional Owners.1570 The establishment of the 1564 Ibid 11-13. 1565 In terms of conserving biodiversity, the Limmen Bight Plan proposes an integrated management strategy that involves partnerships with a range of people/organisations including the NLC and Traditional Owners (and notes that this should maximise employment and economic opportunities for Traditional Owners): Ibid 30. There was also a focus on encouraging a range of industry partnerships related to Aboriginal rangers and Traditional Owners more broadly: at 33. 1566 ‘Free, prior and informed consent’ is a phrase that is used in Article 19 of the UNDRIP (n 239): ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.’ 1567 For a general discussion of ‘free, prior and informed consent’ see: Stephen Young, Indigenous Peoples, Consent and Rights (Routledge, 2020) 78-91. 1568 NT Parks and Wildlife Commission, Limmen Bight Marine Park: Plan of Management (n 905) 31-33. For a brief explanation of ecosystem services see: ‘Ecosystem Services’, Department of Agriculture, Water and the Environment (Cth) (Web Page) IPA is only mentioned briefly. It is noted that the Marra Traditional Owners want an IPA and that the development of an IPA (by the Traditional Owners) that encompasses the marine park would be supported by the NT Government.1571 As will be discussed in the next section, one of the features of IPAs is that their development has been Indigenous-led. It appears that having a pre-existing NT Government authored marine park management plan in place over the same area has the potential to produce conflict between an IPA management plan and the marine park management plan, or restrain what Traditional Owners feel that they can include in their IPA management plan. If there was any conflict between the two plans, the IPA management plan (that has no legal underpinning) would not have the same legal status as the marine park management plan that is a statutory document. On the other hand, a marine park management plan may set out an appropriate, from the point of view of the Traditional Owners, base from which an IPA management plan could be developed. In that case, it could be that the statutory security of that marine park management plan, underlying the IPA, is to the benefit of the Traditional Owners. Additionally, the reference to the IPA in this context demonstrates that the NT Government supports IPAs. However, in many respects they are advantageous to the NT Government in that they attract Commonwealth funding (which would be additional to any NT funding) and they have no settler-state legal status. The Limmen Bight Plan appears to have placed the Aboriginal Traditional Owners in a relationship more akin to being a partner with the settler-state in sea country governance as compared to how the Marine Management Strategy was presented. However, the Limmen Bight Plan was still authored by the settler-state and, it seems, was not Indigenous-led. Further, the financial and personnel resources needed to implement the plan are considerable and, it seems, still need to be sourced. For example, the Limmen Bight Plan notes that the NT Government will be encouraging local industry and non-government organisations to contribute to resourcing Aboriginal ranger organisations (which is a key pillar of the plan) as well as to fund research of Marra cultural sites, contribute ‘seed funding for Aboriginal enterprises’ and contribute to the costs of regional governance meetings.1572 Given all these important aspects of the Limmen Bight Plan are still to be finalised, the implementation stage is going to take significant time. Whether the Marra Traditional Owners play more of a 1571 Ibid. 1572 Ibid 18, 33. 274 partnership role in the long run is going to depend not only on resourcing but the attitude of the NT Government and other stakeholders such as commercial and recreational fishers. The Marine Management Strategy was finalised in 2019 and the Limmen Bight Plan was operationalised in April 2020, but Aboriginal communities were already working towards localised integrated and collaborative marine management for nearly two decades prior to these developments. As was highlighted in the individual submission (in response to the Discussion Paper about the Marine Management Strategy) of Jackie Gould, an anthropological researcher who works directly with communities on sea country planning, ‘Indigenous led marine planning is well developed along significant sections of the NT coast’ in the context of Sea Country IPAs.1573 Further, as Edyvane and Blanch argue, Sea Country IPAs are a major component of contemporary marine management in the NT even though they are driven and led by Indigenous peoples, not by the NT Government.1574 In this context, Aboriginal people have been working within the new law and governance paradigm since before the Blue Mud Bay Case. 2. Sea Country Indigenous Protected Areas1575 The Dhimurru IPA, which is managed by the Dhimurru Aboriginal Corporation (‘Dhimurru’),1576 in north-east Arnhem Land was the first IPA in Australia to incorporate sea country.1577 The original Dhimurru IPA was declared in 2000 and included 9000 hectares of sea country.1578 This was expanded significantly in 2013 to cover 450,000 hectares of sea 1573 ‘Coastal and Marine Management Strategy Public Submissions’, Department of Environment and Natural Resources (NT) (Web Page) The previous Executive Officer of Dhimurru, Steve Roeger, noted that when he started at Dhimurru in 2002, there was a ‘[f]eeling of some powerlessness’ in relation to the way that the sea country legal rights did not seem to be delivering marine governance opportunities.1581 Roeger went on to state: ‘So I put to our guys that we can sit back and wait forever for there to be some legal recognition, or some effective recognition of Yolngu rights and responsibilities, or we can just get on with the job. That was a significant turning point for us’.1582 The first Dhimurru Indigenous Protected Area Sea Country Plan released in 2006 made clear that while the Traditional Owners would continue their legal fight, the IPA would function separately to develop relationships and strengthen Dhimurru’s surveillance and enforcement capacity.1583 1579 Dhimurru, Indigenous Protected Area Management Plan 2015-2022 (n 47) 30-31. An interesting aspect of the 2013 expansion of the Dhimurru Sea Country IPA was that it ‘now overlaps with a Commonwealth marine reserve - the Wessel Commonwealth Marine Reserve’: Butterly, ‘Changing Tack’ (n 200) 13. The previous Executive Officer of Dhimurru, Steve Roeger, noted in an interview for this thesis: ‘Fundamentally what we have suggested [to the Commonwealth officers involved in the reserve] is that the overlap should be zoned to reflect the same zoning arrangement as we have. All the criteria we are managing for and that Dhimurru should be the one to draft the plan for the Wessel marine reserve…. Be interesting to see where all of that finally ended up. I think the Commonwealth’s intention had always been to write a plan for all of the marine reserves, but that it would be a plan rather than several. In other words, it would be written out of Hobart [Tasmania] which is where that unit was based [division of Commonwealth scientists associated with marine environmental science] and they would be almost identical for all of the marine reserves. That is what we understood…. So what we’d imagine if they were to take us up on that proposal would be that we would be writing the plan according to their specifications. Also made it clear that we would need to consult with our neighbouring ranger groups because we don’t have responsibility for the entirety of the reserve but we have the capacity to manage that process and we would like to be doing that.’: Interview with Steve Roeger and Vanessa Drysdale (n 1400). The preparation and drafting of Commonwealth marine park management plans is highly formalised in Australia. These plans also cover large areas. For example, the management plan that includes the marine reserve that overlaps with the Dhimurru IPA covers parts of the Queensland and WA territorial waters as well as the whole of the NT’s territorial waters and contains eight marine reserves: ‘North Marine Parks Network’, Australian Marine Parks (Web Page) Sea Country IPAs are voluntary plans and have ‘no legislative basis’.1584 They are, in effect, a ‘policy construct’ of the Commonwealth Government,1585 but they invert the traditional engagement process of co-management: ‘rather than government agencies consulting and engaging with indigenous people regarding government‐declared MPAs [Marine Protected Areas], [I]ndigenous people are consulting and engaging with government agencies and other parties with respect to indigenous‐declared coastal and marine IPAs’.1586 Mandaka ‘Djami’ Marika, Managing Director of Dhimurru referred to it as ‘our IPA’: ‘My sea country – we got, I don’t know how far, how many hectares we run, our sea country is, but it’s with Dhimurru sea country management that we look after our sea country’. 1587 It may seem contradictory that a mechanism that is a construct of the settler-state could be viewed as Indigenous led. However, the IPA construct is just a frame and ‘[w]ithin the IPA framework, the role of traditional owners is to plan, dedicate and manage IPAs; the role of government is to provide recognition and ongoing support’.1588 It is perhaps because IPAs do not give settler-state legal rights that such an approach can be taken. In effect, the IPA program appears to be set up in a way that once the Traditional Owners propose their management plan it is then ‘recognised’ by the settler-state (the Commonwealth) and this then provides funding by the government and any other organisations that might invest in IPA management.1589 It is also important to identify that many of the Sea Country IPA planning processes are facilitated by specialist consultants and academics (many of whom are non-Indigenous) who have been engaged by Indigenous organisations.1590 The management plans are drafted by Indigenous organisations and set out the ways in which they govern their sea country through mechanisms such as building Indigenous ranger capacity, developing Codes of Conduct with commercial and recreational fishers, and The Dhimurru Sea Country management plan sets out the collaborating organisations. These include NT Government,1593 NTSC and AFANT.1594 The plan identifies the commitment of each organisation to the IPA, their authority (their powers and responsibilities) and their capacity.1595 In effect, the plan is a comprehensive outline of how all the organisations fit together in the marine area of the Dhimurru Sea Country IPA. Dhimurru is listed first, but what the outline suggests is that every organisation is a partner in this exercise that has something to contribute.1596 Dhimurru is acting as the leader here to bring together all the relevant parties (which includes government) in one region. The Sea Country IPA is not an assertion by Dhimurru that they can (or want to) control sea country or make unilateral decisions about sea country. In fact, it is quite the opposite. The language is based on partnerships and collaboration, rather than control, but it puts Dhimurru and the Traditional Owners at the centre of those relationships. It gives the Traditional Owners the chance to voice their aspirations in ways that they may not have been able to do if 1591 Dhimurru, Indigenous Protected Area Management Plan 2015-2022 (n 47) 37. 1592 Ibid 38. 1593 Dhimurru has a ‘section 73 agreement’ pursuant to the Territory Parks and Wildlife Conservation Act 1976 (NT). This was the first section 73 agreement made in relation to an IPA and it agrees to ‘management and administration arrangements for the IPA’: ‘Dhimurru Section 73 Agreement’, Agreements, Treaties and Negotiated Settlements Project (Web Page) We need to look after our own area, to be strong, but not try and stop everyone to come through, you know. But to show the world, show the people that we are generous people. If we invite you to come and do such things, you must do it in our terms – look after what is down there. Don’t try and mess everything up.1597 The limitations of Sea Country IPAs are evident. They do not have a legislative basis and are, therefore, vulnerable to changes in law or government policy.1598 However, the lack of legal underpinning also gives flexibility. As Smyth and Isherwood have noted, IPAs’ ‘collaborative nature provides unparalleled opportunities for diverse rights-holders and stakeholders to come together, exchange perspectives, share knowledge and use their collective authorities and commitments to agreed protected area objectives that can result in area-based management outcomes’.1599 Further, in a jurisdiction such as the NT where there has been substantial resistance to formal marine protected areas, predominantly due to the ‘fishing vote’,1600 IPAs have grown without significant resistance. IPAs appear to be more readily acceptable to the non-Indigenous public because they are collaborative.1601 Of course, there could be an element here that because Sea Country IPAs have no legislative basis (as compared to legislated marine protected areas), they also do not have any legal impact on third-party rights, meaning that third parties are less likely to resist. Another aspect of Sea Country IPAs that might be seen as a limitation is that they are classified as protected areas. This means that they are evaluated, when they are declared by the Commonwealth, according to the ‘conservation and sustainability goals’ that are set by the Protected Area Categories of the International Union for the Conservation of Nature (‘IUCN’).1602 As discussed in Chapter II,1603 conservation from a western standpoint might not always meet the aspirations of Indigenous peoples. However, commentators, including some from Dhimurru, have observed that the Indigenous-led nature of the Sea Country IPAs 1597 Interview with Mandaka ‘Djami’ Marika (n 2). 1598 In terms of the Blue Mud Bay negotiations, one of the 2012-2014 permit-free agreements applies over part of the Dhimurru IPA: Licence Deed between Northern Territory of Australia and Arnhem Land Aboriginal Aboriginal Land Trust and Northern Land Council (Nhulunbuy) (2014) and ‘Fishing in Gove Peninsula area’, NT Government (Web Page) In terms of resources, IPAs are approved and funded through a Commonwealth Government program and, in this sense, are subject to changes in government funding allocations.1608 Funding for IPAs has tended to be allocated for a certain number of years (currently 2017- 2021)1609 and then there is a concern about renewal.1610 The funding is particularly important 1604 Rist et al (n 2) 149. In fact, ‘the IUCN’s Guidelines for Applying the IUCN Protected Area Management Categories to Marine Protected Areas… specifically identifies Dhimurru IPA as an example of a marine protected area established through ‘effective means’ by agreement with Indigenous groups’: Smyth et al, ‘Indigenous-Driven Co-Governance of Sea Country’ (n 235) 18. 1605 Ibid 144 and ‘Category V: Protected Landscape/Seascape’, International Union for the Conservation of Nature (Web Page) The Dhimurru Sea Country IPA was conceived as a response to lack of progress in relation to legal rights to the sea and has continued to develop in the shadows of the Blue Mud Bay negotiations. The Sea Country IPA planning process, and resultant documents, are the most comprehensive, publicly available, articulations of Indigenous aspirations to manage sea country in Australia. As was noted by the former NLC Sea Country Policy Officer (from 2015-2018): ‘everyone is trying to match that [Dhimurru Sea Country IPA]. Everyone’s saying: I want one of those as it looks like it works really well for Aboriginal led sea country management.’1613 This collaborative Sea Country IPA model is an assertion by Traditional Owners that they should have a leading role in making decisions about their sea country. Further, it demonstrates that Aboriginal organisations, like Dhimurru, have the capacity to productively bring together parties that have a role in sea country governance in their region in a way that is currently lacking across the NT. In this context, Sea Country IPAs provide a potential model that could be reconceptualised to implement the marine spatial planning approach that the NT Government is advocating in its Marine Management Strategy. ‘cause then all of a sudden we have a broken system, where we have pockets of IPAs, would lose its steam – it may not happen, but if it does happen – we’re [NT Government] still here’: Interview with Simon Xuereb (n 1391). 1611 Rist et al (n 2) 149. This paper notes that the relationships between neighbouring Indigenous groups are also important. 1612 However, ‘evaluations of Sea Country IPAs, conducted in 2006 and 2011, found that Sea Country IPAs needed further recognition and support’: Butterly (n 200) 14. 1613 Interview with Dr Lorrae McArthur (n 1361). 281 D. Conclusion The legal rights of Aboriginal people recognised in the Blue Mud Bay Case have given rise to a new law and governance paradigm in the Northern Territory. This paradigm requires that the settler-state acknowledge that Aboriginal people have co-existing authority in relation to sea country and that underlying this are assertions of Indigenous sovereignty. The overarching nature of the Marine Management Strategy, and the early stage of its implementation, make now a productive time to start adopting the new paradigm. In this context, the NT Government should indicate that it intends to start again with a partnership approach with Aboriginal people. The first thing the NT Government should do is bring together a forum of Traditional Owners, Land Councils and sea management organisations so that Aboriginal people can determine the best way to participate in decision- making initially about the Marine Management Strategy, and then more broadly about sea country governance in the NT. As part of the forum, the NT Government should first seek to learn from Traditional Owners about their current experiences of the legal and governance mechanisms relating to sea country, and ask: what is already working and what could be improved? The NT Government should then commit to trialling the first marine spatial planning framework in an area that already has strong Indigenous governance, such as an area with a Sea Country IPA. This approach will allow the best possible reconciling of interests in the first framework so that subsequent regions can follow that lead. The Blue Mud Bay negotiations are unlikely to be effectively resolved until both Aboriginal people and the settler-state can address how their co-existing assertions of sovereignty will operate together to govern the sea country of the NT. Resolution is not going to be a neat, once-off agreement that deals only with issues to do with the intertidal zone. It will involve an ongoing process that starts with the settler-state listening to, and learning from, Aboriginal people. The key to recognising Indigenous assertions of sovereignty will be the re-framing of the attitude of the settler-state. The first principle of a revised Marine Management Strategy, informed by the new paradigm, should read: Aboriginal people and the NT Government are equal partners in making all decisions about sea country. 282 X. APPENDIX I: CHRONOLOGY OF IMPORTANT CASES 6 July 1998: Yarmirr FC Yarmirr v Northern Territory (1998) 82 FCR 533 3 December 1999: Yarmirr FullFC Commonwealth v Yarmirr (1999) 101 FCR 171 10 November 2000: Risk FullFC Risk v Northern Territory (2000) 105 FCR 109 24 February 2000: Land Trust FC Arnhem Land Aboriginal Land Trust v Director of Fisheries (NT) [2000] FCA 165 23 February 2001: Land Trust FullFC Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 11 October 2001: Yarmirr HCA Commonwealth v Yarmirr (2001) 208 CLR 1 30 May 2002: Risk HCA Risk v Northern Territory (2002) 210 CLR 392 7 February 2005: Gumana FC Gumana v Northern Territory (2005) 141 FCR 457 2 March 2007: Gumana FullFC Gumana v Northern Territory (2007) 158 FCR 349 20 July 2008: Blue Mud Bay Case Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 283 XI. BIBLIOGRAPHY A. 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International Law Instruments United Nations Convention on the Law of the Sea, signed 10 December 1982, 1833 UNTS 3; 21 ILM 1261 (entered into force 16 November 1994) United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) 309 F. Commonwealth and State/Territory Government Reports, Documents and Media Releases ‘Aboriginal Land and Sea Action Plan’, Department of the Chief Minister (NT) (Web Page) ‘Apology to Australia’s Indigenous peoples’, Commonwealth Government (Web Page) Attorney-General’s Department (Commonwealth), Offshore Constitutional Settlement: A Milestone in Co-Operative Federalism (1980) Australian Bureau of Agricultural and Resource Economics and Sciences (Department of Agriculture and Water Resources, Commonwealth) Australian Fisheries and Aquaculture Statistics 2016 (December 2017) ‘Barramundi Fishery and Licences’, NT Government (Web Page) Commonwealth, Aboriginal Land Rights Commission, First Report (1973) Commonwealth, Aboriginal Land Rights Commission, Second Report (1974) Commonwealth, Australia’s Ocean Policy (1998) Commonwealth, Office of the Aboriginal Land Commissioner, Annual Report: Report for the year ended 30 June 2005 (21 September 2005) Commonwealth, Office of the Aboriginal Land Commissioner, Final Report: Closure of Seas: Castlereagh Bay/Howard Island Region of Arnhem Land (1988) Commonwealth, Office of the Aboriginal Land Commissioner, Final Report: Closure of Seas: Milingimbi, Crocodile Islands and Glyde River Area (1981) Commonwealth, Office of the Aboriginal Land Commissioner, Report on Review of Detriment: Aboriginal Land Claims Recommended for Grant But Not Yet Finalised (2019) 98 310 ‘Crown Lands Amendment (Public Ownership of Beaches and Coastal Lands) Bill 2014’, Parliament of New South Wales (Web Page) Department of the Attorney-General and Justice (NT), ‘Invitation to participate: Review of detriment issues - Garrwa (Wearyan and Robinson Rivers Beds and Banks) Land Claim No. 178; McArthur River Region Land Claim No. 184 and Mariangoora Region Land Claim No. 185’ (16 March 2018) 12 Department of the Chief Minister (NT), Annual Report 2007-2008 (30 September 2008) Department of Primary Industry and Resources (NT), Northern Territory Fisheries Harvest Strategy Policy (December 2016) Director of National Parks (Cth), North Marine Parks Network Management Plan (2018) ‘Fisheries compliance training for Aboriginal rangers’, Department of Primary Industry and Resources (NT) (Web Page, 6 November 2017) ‘Fisheries inspectors appointed’, Department of Primary Industry and Resources (NT) (Web Page, 18 May 2018) ‘Fishing on Aboriginal land’, Northern Territory Government (Web Page) ‘Fishing in Gove Peninsula area’, NT Government (Web Page) Giles, Adam (NT Chief Minister), and Francis Xavier Kurrupuwu (Member for Arafura), ‘Historic deal for fishing access on the Tiwi Islands’ (Media Release, 26 November 2014) Knight, Rob (Member for Daly), ‘Daly River Fishing Deal A Win For All’ (Media Release, 8 March 2012) 311 Westra van Holthe, Willem (NT Minister for Primary Industry and Fisheries), ‘Blue Mud Bay Deal Done’ (Media Release, 14 April 2013) Lawler, Eva (NT Minister for Environment and Natural Resources), ‘Moratorium on Seamed Mining in the NT’s Coastal Waters Extended’ (Media Release, 17 May 2018) Licence Deed between Northern Territory of Australia and Arnhem Land Aboriginal Land Trust and Northern Land Council (Mini Mini/Murgenella) (2014) Licence Deed between Northern Territory of Australia and Arnhem Land Aboriginal Aboriginal Land Trust and Northern Land Council (Nhulunbuy) (2014) Licence Deed between Northern Territory of Australia and Daly River/Port Keats Aboriginal Land Trust and Northern Land Council (Daly River Mouth) (2014) Licence Deed between Northern Territory of Australia and Malak Malak Aboriginal Land Trust and Northern Land Council (2014) Macklin, Jenny (Cth Minister for Aboriginal Affairs), ‘Blue Mud Bay Case’ (Media Release, 30 July 2008) Macklin, Jenny, ‘Statement on the United Nations Declaration on the Rights of Indigenous Peoples’ (3 April 2009) Minister for Tourism, Sport and Culture (NT), ‘Territory Parks and Wildlife Conservation Act 1976 Notice of Operation of Plan of Management Limmen Bight Marine Park’ in Northern Territory, Government Gazette, No G18, 6 May 2020, 5 Moss, Lauren (NT Minister for Tourism, Sport and Culture), ‘Have Your Say on the Limmen Bight Marine Park Draft Plan of Management’ (Media Release, 17 September 2019) Moss, Lauren (NT Minister for Tourism, Sport and Culture), ‘Limmen Bight Marine Park Plan of Management Operational’ (Media Release, 29 April 2020) Moss, Lauren (NT Minister for Environment and Natural Resources), ‘Public consultation begins on inaugural Coastal and Marine Management Strategy’ (Media Release, 25 January 2018) 312 ‘Mud Crab Fishery and Licences’, NT Government (Web Page) ‘North Marine Parks Network’, Australian Marine Parks (Web Page) ‘Northern Prawn Fishery’, Australian Fisheries Management Authority (Web Page) NT Government, ‘Blue Mud Bay Announcement’ (Media Release, 21 May 2007) NT Government, ‘Blue Mud Bay Update’ (Media Release, 16 March 2007) NT Government, Budget 2010-11: Northern Territory Economy (4 May 2010) NT Government, Coastal and Marine Management: Discussion Paper – Our Coasts and Seas (2018) NT Government, Coastal and Marine Management Strategy 2019-2029 (2019) NT Government, Election Commitments 2008: Tabled Paper 14 (10 September 2008) NT Government, Election Commitments – Progress Report: Tabled Paper 144 (25 November 2008) NT Government, Northern Territory Aboriginal Land and Sea Action Plan (2019) NT Government, Recreational Fishing Development Plan 2012-2022 (undated) NT Parks and Wildlife Commission (NT Government), Limmen Bight Marine Park: Plan of Management (2020) Parliament of Australia, Report of the Joint Select Committee on Aboriginal Land Rights in the Northern Territory (1977) Resource Assessment Commission, Coastal Zone Inquiry Final Report (November 1993) ‘Role of the Administrator’, Government House: Northern Territory (Web Page) Scullion, Nigel (Cth Minister for Indigenous Affairs), ‘$7.5 million investment in NT Sea Country’ (Media Release, 30 May 2017) Statehood Steering Committee, Parliament of the Northern Territory, Information Paper: What Might the Terms and Conditions of Northern Territory Statehood be? (2010) Stirling, Syd (NT Attorney-General), ‘Statement from Attorney-General - Blue Mud Bay (No 2) Native Title Appeal’ (Media Release, 2 March 2007) Task Force on Marine Protected Areas, Guidelines for Establishing the National Representative System of Marine Protected Areas (December 1998) Tiwi Land Council and NT Government, Fishing the Tiwi Islands (2017) Tollner, David (NT Minister for Mines and Energy), ‘Seabed Mining Moratorium Extended for Three Years’ (Media Release, 5 March 2015) Vatskalis, Kon (NT Minister for Resources), ‘Moratorium on Exploration and Seabed Mining in Northern Territory Coastal Waters’ (Media Release, 6 March 2012) Vowles, Ken (NT Minister for Primary Industry and Resources), ‘Media Release’ (Media Release, 22 November 2018) 314 Wyatt, Ken (Cth Minister for Indigenous Australians), ‘Delivering land and economic security in the NT’ (Media Release, 8 November 2019) Wyatt, Ken (Cth Minister for Indigenous Australians), ‘Progressing land claims to unlock economic opportunity’ (Media Release, 20 December 2019) Wyatt, Ken (Cth Minister for Indigenous Australians), ‘Voice Co-Design Senior Advisory Group’ (Media Release, 8 November 2019) G. Media articles ABC editorial team (no named author), ‘The Coffs Harbour Aboriginal Land Council says it was made a ‘scapegoat’ in a land claim stoush’, ABC News (online, 7 November 2014) ABC editorial team (no named author), ‘Compensation for Blue Mud Bay decision unlikely: Macklin’, ABC News (online, 20 July 2008) ABC editorial team (no named author), ‘Court went too far in Blue Mud Bay case, barrister says’, ABC News (online, 4 December 2007) ABC editorial team (no named author), ‘Key ruling due on NT fishing rights’, ABC News (30 July 2008) [available through Factiva database] ABC editorial team (no named author), ‘Northern Land Council’s Joe Morrison resigns after four years of Indigenous advocacy’, ABC News (online, 14 November 2018) Adlam, Nigel, ‘Boat IDs back door licensing’, NT News (Darwin, 9 March 2011) 5 Adlam, Nigel, ‘Fishos face Finniss ban by traditional owners’, NT News (Darwin, 7 April 2013) 5 Adlam, Nigel, ‘Owners to cash in on new deals’, NT News (Darwin, 17 October 2012) 6 Adlam, Nigel, ‘Tiwi people set hook on island fishing line’, NT News (Darwin, 8 January 2009) 4 315 Aikman, Amos, ‘NT makes $10m bid to avert fishing closures’, The Australian (22 November 2018) [available through Factiva database] Allam, Lorena, ‘Aboriginal land rights claims unresolved despite all-clear from independent review’, The Guardian (online, 29 March 2019) < https://www.theguardian.com/australia- news/2019/mar/29/aboriginal-land-rights-claims-unresolved-despite-all-clear-from- independent-review> Bardon, Jane, ‘Arnhem Land fishermen prohibited from selling their barramundi threaten coastal closure’, ABC News (online, 17 May 2019) Bardon, Jane, ‘“Broken, shattered” Northern Land Council faces internal revolt after chief executive dismissed’, ABC News (online, 4 February 2019) Bardon, Jane, ‘Native title sea rights claim to protect unique Groote Eylandt marine environment’, ABC News (online, 18 December 2018) Bardon, Jane, ‘Permit-free fishing to remain in the NT following “breakthrough” meeting’, ABC News (online, 26 June 2019) Bardon, Jane, ‘Traditional owners threaten to close majority of NT coastline to all fishing’, ABC News (online, 15 November 2018) Betts, Alyssa, ‘Concerns aired at AFANT meeting’, NT News (Darwin, 2 March 2009) 5 Betts, Alyssa, ‘Hook, line and stinker: Fishing rights resolution is months away’, NT News (Darwin, 30 November 2011) 7 Bevege, Alison, ‘No fight with CLP, says land council’, NT News (Darwin, 29 August 2012) 2 Calacouras, Nick, ‘95 percent of NT coast still permit free: Hendo’, NT News (Darwin, 13 July 2010) 4 Calacouras, Nick, ‘Blue Mud Bay Access Issue could cost Territory $40m’, NT News (Darwin, 12 April 2011) 7 Crawford, Sarah, ‘It’s all a bit fishy’, NT News (Darwin, 12 March 2013) 5 Cunningham, Matt, ‘Fishing licence buy bid’, NT News (Darwin, 23 November 2018) 9 316 Davidson, Helen, ‘Indigenous Protected Areas get five-year funding extension in budget’, The Guardian (online, 12 May 2017) Dias, Avani, ‘Blue Mud Bay decision: NT traditional owners extend free access to Aboriginal waters amid dispute’, ABC News (online, 1 June 2017) Dillon, Meagan, ‘Fisho’s excuse was a croc’, NT News (Darwin, 2 August 2012) 9 Everingham, Sara, ‘Land rights: Arnhem Land traditional owner in landmark talks to take over local jobs, development’, ABC News (online, 5 October 2017) Fitzgerald, Daniel, ‘Maningrida meeting over commercial fishing fails to settle dispute in remote Arnhem Land’, ABC News (online, 19 October 2017) Garrick, Matt, ‘Northern Territory fishing permit system could be delayed, verdict expected this week’, ABC News (online, 14 November 2018) Garrick, Matt, ‘Tides turn to fishing permits’, NT News (Darwin, 18 August 2018) 26 Garrick, Matt, and Jacqueline Breen, ‘Top End fishos breathe sigh of relief as Blue Mud Bay waiver extended until June 2019’, ABC News (online, 4 December 2018) Gibson, Jano, ‘Indigenous advancement funds given to lobby groups impacted by Aboriginal land claims’, ABC News (online, 31 Oct 2018) Gibson, Jano and Neda Vanovac, ‘Northern Territory Labor “manufactured” leaks to drive out dissenters over budget crisis, politician says’, ABC News (online, 23 December 2018) Glenday, James, ‘Millions could be spent to resolve fishing dispute’, ABC News (online, 11 April 2011) Hall, Lex, ‘Land council blames Labor for Tiwi permits’, The Australian (Sydney, 15 May 2010) 6 317 Hawke, Sarah, ‘High Court hands control of much of NT coastline to traditional owners’, ABC PM (Web Page, 30 July 2008) Heaney, Chelsea, ‘NT Signs Historic Barunga Agreement to Begin Indigenous Treaty’, NT News (online, 8 June 2018) Howden, Saffron, ‘NSW moves to ban Aboriginal land claims over beaches and coastal land labelled racist’, Sydney Morning Herald (online, 2 November 2014) James, Felicity, ‘Limmen Bight photographic art depicts remote NT marine park’s scars and beauty’, ABC News (online, 1 December 2019) Jones, Ruby, ‘Fishos left up creek in Finniss River tangle’, ABC News (online, 5 April 2013) La Canna, Xavier, ‘NT Government denies stalling on anglers’ access to traditional Blue Mud Bay waters’, ABC News (online, 8 March 2015) Lysaght, Gary-Jon, ‘Indigenous leaders welcome ALP’s federal election 2019 commitment to double IPA funding’, ABC News (online, 9 May 2019) Karvelas, Patricia, ‘Defiant Tiwis move to control fishing grounds’, The Australian (Sydney, 7 January 2009) 6 Marich, Gina, ‘Leaked Report Shows Push for Boat Rego’, ABC News (online, 22 September 2010) McLennan, Chris, ‘Fishing deal moves closer with Nitmiluk agreement’, Katherine Times (Katherine, 27 June 2019) [available through Factiva database] NT News editorial team (no named author), ‘Barra poachers busted’, NT News (Darwin, 19 June 2009) 4 NT News editorial team (no named author), ‘Tourism concern over Blue Mud Bay’, NT News (Darwin, 6 August 2008) 23 Radio National Breakfast, ‘A voice to Parliament, not just to government: Thomas Mayor’, ABC Radio (online, 30 October 2019) 318 Ravens, Tara, ‘Landmark native title claim in Darwin Federal Court’, Australian Associated Press General News (2 March 2007) [available through Factiva database] Ravens, Tara, ‘NT coast belongs to Aborigines: court’, Sydney Morning Herald (online, 30 July 2008) Safi, Michael, ‘New South Wales tries to block Aboriginal land claims on coastal areas’, The Guardian (online, 3 November 2014) Sorensen, Hayley, ‘Fishos dump licences’, NT News (Darwin, 20 November 2018) 2 Toohey, Paul, ‘Fishing for votes ends as a dream becomes reality’ (The Australian, 6 August 2008) 9 Toohey, Paul, ‘Tiwis get their hooks into tidal rights fight’, The Australian (Sydney, 10 January 2009) 22 Walls, Jason, ‘Different kettle of fish’, NT News (Darwin, 22 November 2018) 9 Watkins, Emily, ‘“Sacred” river fisho fined’, NT News (Darwin, 17 April 2010) 8 Wilson, Ashleigh, ‘Coastline win for Aborigines’ (The Australian, 3 March 2007) [available through Factiva database] Wood, David, ‘Fish rights extended’, NT News (Darwin, 20 June 2011) 5 Vanovac, Neda, and Jano Gibson, ‘Sacked Northern Territory minister Ken Vowles to file FOI request to own Government over leaked emails’, ABC News (online, 24 December 2018) Zillman, Stephanie, ‘Arnhem Land community calls for ban on commercial fishing in its waters’, ABC News (online, 22 September 2017) H. Interviews Conducted for This Thesis Interview with Chief of Staff to the NT Minister for Primary Industry and Resources (from August 2016 to November 2017) (Lauren Butterly, Darwin, 28 September 2017) 319 Interview with Dr Lorrae McArthur, NLC Sea Country Policy Officer (from 2015 to 2018) (Lauren Butterly, NLC Office Darwin, 26 November 2015) Interview with Mandaka ‘Djami’ Marika, Managing Director of Dhimurru Aboriginal Corporation (Lauren Butterly, Dhimurru Aboriginal Corporation offices in Nhulunbuy, 17 November 2015) Interview with Mark Dreyfus QC, a member of the NLC team during the first sea closure hearing (Lauren Butterly, Offices of the Honourable Mark Dreyfus QC, Mordialloc (Melbourne), 5 June 2017) Interview with Ron Levy, barrister (Lauren Butterly, Darwin, 27 November 2015) Interview with Simon Xuereb, Marine Ranger Manager, NT Department of Primary Industry and Fisheries (‘DPIF’) (Lauren Butterly, DPIF Offices, Berrimah (Darwin), 26 November 2015) Interview with Steve Roeger (Executive Officer of Dhimurru Aboriginal Corporation from 2002 to 2017) and Vanessa Drysdale (Sea Country Facilitator of Dhimurru Aboriginal Corporation from 2008 to 2015) (Lauren Butterly, Dhimurru Aboriginal Corporation offices in Nhulunbuy, 23 November 2015) I. Other ‘About Us’, AFANT (Web Page) ‘About Us’, Northern Land Council (Web Page) ‘About Us’, NT Seafood Council (Web Page) ‘Aboriginal Fisheries Consultative Committees’, Agreements, Treaties and Negotiated Settlements Project (Web Page) Aboriginal Land Councils and NT Government, The Barunga Agreement: A Memorandum of Understanding to Provide for the Development of a Framework for Negotiating a Treaty with the First Nations of the Northern Territory of Australia (8 June 2018) AFANT, 2008 Annual Report (2008) AFANT, Annual Report 2009 (2009) 320 AFANT, Annual Report 2010 (2010) AFANT, Annual Report 2011 (2011) AFANT, Annual Report 2012 (2012) AFANT, Annual Report 2014 (2014) AFANT, ‘Media Release from AFANT’ (Media Release, 17 November 2017) Anindilyakwa Land Council, Anindilyakwa Indigenous Protected Area Plan of Management (2016) Anindilyakwa Land Council, Annual Report 2010/2011 (19 December 2011) Anindilyakwa Land Council, Annual Report 2012/2013 (30 September 2013) Bush-Blanasi, Samuel, ‘A word from the Chair’, NLC Land Rights News (January 2017) 2 ‘Category V: Protected Landscape/Seascape’, International Union for the Conservation of Nature (Web Page) ‘Coastal and Marine Management discussion paper’, Department of Environment and Natural Resources (NT) (Web Page) 321 ‘Coastal and Marine Management Strategy Public Submissions’, Department of Environment and Natural Resources (NT) (Web Page) Dhimurru Aboriginal Corporation, Dhimurru Yolŋuwu Monuk Gapu Wäŋa Sea Country Plan: Yolŋu Vision and Plan for Sea Country Management in North-east Arnhem Land (2006) Dhimurru Aboriginal Corporation, Indigenous Protected Area Management Plan 2015-2022 (August 2015) ‘Dhimurru Section 73 Agreement’, Agreements, Treaties and Negotiated Settlements Project (Web Page) ‘Dhimurru Staff’, Dhimurru Aboriginal Corporation (Web Page) ‘Ecosystem Services’, Department of Agriculture, Water and the Environment (Cth) (Web Page) Email from Manager of FOI and WHS, NT Department of Primary Industry and Resources to Lauren Butterly, 16 October 2019 First Nation Panel on Fisheries, Our Place at the Table: First Nations in the B.C. Fishery (2004) ‘Gapu-Monuk Saltwater: Journey to Sea Country’, Australian National Maritime Museum (Web Page) Ginytjirrang Mala, An Indigenous Marine Protection Strategy for Manbuyŋa ga Rulyapa or the Arafura Sea (November 1994) Haida Nation and Province of British Columbia, Kunst’aa guu – Kunst’aayah Reconciliation Protocol (Agreement, 14 December 2009) ‘History’, Northern Territory Treaty Commission (Web Page) ‘Home’, Dhimurru Aboriginal Corporation (Web Page) ‘Homepage: Northern Territory Treaty Commission’, Northern Territory Treaty Commission (Web Page) 322 ‘Indigenous Parliamentarians, Federal and State: A Quick Guide’, Parliament of Australia (Web Page, 2017) ‘Jabiluka Long-Term Care and Maintenance Agreement’, Agreements, Treaties and Negotiated Settlements Project (Web Page) ‘Kakadu National Park, The Northern Territory of Australia, Memorandum of Lease (3 November 1978)’, Agreements, Treaties and Negotiated Settlements Project (Web Page) Letter from NT Department of Primary Industry and Fisheries to Lauren Butterly, 17 February 2016 Mills, Terry (Deputy Opposition Leader), ‘Fishing for a Compromise’ (Media Release, 1 February 2008) Mills, Terry, ‘Fishing for Votes Backfires for Labor’ (Media Release, 12 July 2010) Mills, Terry (Deputy Opposition Leader), ‘Legislating for access to the Intertidal Zone’ (Media Release, 10 April 2007) ‘Native Title Determination Details: Juru People (QC2013/010)’, National Native Title Tribunal (Web Page) ‘Native Title Determination Details: QCD2009/001 - Kuuku Ya’u’, National Native Title Tribunal (Web Page) ‘Native Title Determination Details: WCD2011/001 - Uunguu Part A’, National Native Title Tribunal (Web Page) ‘Native Title Determination Details: WCD2011/002 – Dambimangari’, National Native Title Tribunal (Web Page) 323 ‘Native Title Determination Details: WCD2018/015 – Kariyarra’, National Native Title Tribunal (Web Page) ‘Native Title Determination Details: Yaegl People #2 Part B’, National Native Title Tribunal (Web Page) NLC, Access to Tidal Waters on Aboriginal Land (15 November 2017) NLC, ‘Blue Mud Bay: Conditional Waiver Extension’ (Media Release, 15 November 2018) NLC, ‘Our History’ (Web Page) NLC, Living on Saltwater Country: Goulburn Island to the QLD Border Sea Country Management Needs and Issues (Consultation Report prepared for the National Oceans Office, 2004) 27 NLC, ‘Meet NLC CEO Marion Scrymgour’ (Media Release, 29 March 2019) NLC, ‘MoU to maximise benefit’, NLC Land Rights News (Nov 2011) 3 NLC, ‘New NLC permit system: A stronger system for a stronger country’, NLC Land Rights News (April 2019) 16 NLC, ‘Report into detriment review tabled in Parliament’, NLC Land Rights News (April 2019) 4 NLC, Sea Country Access Arrangements in the Northern Land Council region (17 July 2019) NLC, ‘Sea Country Planning Finalised For Pilot Areas’, NLC Land Rights News (April 2019) 14 NLC, ‘Sea Country Working Group to advise on intertidal fishing access’, NLC Land Rights News (April 2017) 12 NLC, Submission to Aboriginal Land Rights Commission (January 1974) NLC, Submission to Joint Select Committee on Aboriginal Land Rights in the Northern Territory (1977) NLC, Submission to Northern Territory Government Department of the Environment and Natural Resources on Coastal and Marine Management Strategy 2018 (2018) NLC, NT Government, NTSC and AFANT, ‘Intertidal zone permit waiver extended for 6 months’ (Joint Media Release, 4 December 2018) ‘NLC Rangers among first NT Fisheries Inspectors’, Northern Land Council (Web Page, 1 June 2018) ‘Northern Territory Guided Fishing Industry Association’, Northern Territory Guided Fishing Industry Association (Web Page) NTSC, ‘Unknown conditions not yet met’ (Media Release, 15 November 2018) NTSC, ‘Win-win-win solutions are needed for fisheries’ (Media Release, 21 November 2018) ‘Northern Territory Votes’, ABC News (Web Page, 25 August 2012) ‘Our Council’, Northern Land Council (Web Page) Purick, Kezia (Member for Goyder), ‘Fishing for a Back Flip’ (Media Release, 24 August 2011) Purick, Kezia (Member for Goyder), ‘Muddying the Waters’ (Media Release, 11 April 2011) PwC Indigenous Consulting, Sacred Sites Processes and Outcomes Review (Report for Department of the Chief Minister (NT), 26 April 2016) 325 Referendum Council, ‘Uluru Statement from the Heart’ (Statement, First Nations National Constitutional Convention, 26 May 2017) Report of the Royal Commission on Aboriginal Peoples (Canada) (Final Report, October 1996) ‘Sea Country Rights’, Northern Land Council (Web Page, 2019) ‘Settlement Agreement, South West Aboriginal Land and Sea Council’, South West Aboriginal Land and Sea Council (Web Page) Simpson, Audra, ‘Reconciliation and its Discontents: Settler Governance in an Age of Sorrow’, University of Saskatchewan Youtube Channel (Video, 15 March 2016) TLC, Annual Report 2007-2008 (16 September 2008) TLC, Annual Report 2009-2010 (30 September 2010) TLC, Annual Report 2010-2011 (7 September 2011) ‘Treaties and Agreements’, Government of Canada (Web Page) Westra van Holthe, Willem, ‘Labor’s Thin Edge of the Wedge’ (Media Release, 22 September 2010) Wood, Gerry, ‘Recreational Fishing - A Right or a Privilege’ (Media Release, 29 March 2007) ‘Yolngu Culture’, Dhimurru Aboriginal Corporation (Web Page) ‘Yolŋu Matha Dictionary’, Charles Darwin University (Web Page) ‘2008 Northern Territory Election’, ABC Elections (Web Page) 326 327