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Bay of Plenty

7 August 2008 - Last week, the High Court of Australia ruled that the Northern Territory government could not grant commercial fishing operators licenses to work in areas that fall within the boundaries of the Aboriginal Land Rights (Northern Territory) Act.

In practical terms, that means that access for commercial and recreational fishers to more than 80 percent of the NT's coast and tidal rivers - some 5,700 kilometres of shoreline - is now at the whim of Aboriginal people. In dollar terms, the decision is staggering. CHRIS GRAHAM reports on the most stunning Indigenous legal win since Mabo.

PURELY in the interests of being provocative, one question you might ask yourself when considering the High Court of Australia's historic Blue Mud Bay decision is this: 'Having won their case and gained controlled of more than 80 percent of the coastline of the Northern Territory, and with it the power to make or break the NT's commercial and recreational fishing industries, what would happen if black Australia behaved like white Australia?'

It's not a tough question to answer. We have many, many precedents, plenty of them involving Aboriginal people prosecuted for practising their culture (by collecting fish).

But for arguments sake, let's look at Australia's response to foreign poachers instead.

Angered by an increasing number of Indonesian vessels stealing fish from Australian waters, in April 2005 the Howard government launched 'Operation Clearwater', a 'whole-of-government' sting that involved the combined resources of Customs, the Australian Defence Force, Australian Fisheries Management Authority (AFMA), Australian Quarantine and Inspection Service, and the Department of Immigration and Multicultural and Indigenous Affairs with support from the Northern Territory Health Department and the Northern Territory Police, plus two Indonesian officials from the Indonesian Directorate General of Customs and the Directorate of Fish Resources Surveillance.

After just 11 days, Operation Clearwater had snagged 29 illegal fishing boats and 258 crew members, 65 of whom were charged under the Commonwealth Fisheries Management Act and/or the criminal code.

Most of the 29 vessels were subsequently burned, and fines for crew members ranged from a two-year $200 behaviour bond to a $90,000 fine handed to the master of a larger boat.

But even that wasn't enough.

Operation Clearwater, rather than quenching our thirst for belting poachers, only seems to have made us even more determined. And more aggressive.

Indeed, the various state and territory jurisdictions seem to be competing with each other for the mantle of 'toughest government on foreign fishermen'.

In May 2006, News Limited reported a new 'get tough' approach from the Howard government.

"Federal Fisheries Minister Eric Abetz said the government would introduce a bill providing jail terms of up to three years and increased fines up to $825,000 to deter the growing armada of fish poachers in Australia's northern waters.

"Illegal operators currently were jailed for token periods and only after failing to pay a fine, Senator Abetz said.

"'These new penalties will be among the toughest in the world and are an important part of the Government's new get-tough measures in its fight against illegal foreign fishing,' the minister said."

Not to be outdone, one month later the West Australian Labor government announced its own even 'tougher' penalties.

"'Fisheries Minister Jon Ford has announced that the State Government will introduce Australia's toughest illegal fishing legislation into Parliament today,' a government press release announced.

"'Many of these foreign pirates are repeat offenders who have not been deterred by existing penalties so today we are sending them a clear message: Come into Western Australian waters or set foot on our land and you will be jailed,' Mr Ford said.

"Under the proposed legislation, individuals convicted of a third or subsequent offence must be sentenced to the maximum period of imprisonment of four years and receive the maximum fine of $150,000."

So there you have it.

That's what white Australia does when people try to steal it's fish. We arrest them (at gunpoint), prosecute them, jail them, fine them, seize their property and burn their boats.

Now here's what black Australia did after the Federal Court ruled last year that commercial and recreational fishers in the Northern Territory have been illegally taking fish from Aboriginal land for the last 30 years.

They gave an immediate amnesty to recreational and commercial fishers, while the Northern Territory government tried to wipe out the case in the High Court.

The three affected Top End land councils - the Northern, Anindilyakwa and Tiwi Land Councils - announced the deal in order to ensure there was no interruption to fishing operations in the Territory.

The land councils promised that the 'status quo' would remain in force while the High Court considered the matter, and in the process ensured that permits to fish were automatically granted free-of-charge to commercial operators.

The existing rights of recreational fishers were also preserved.

The High Court handed down its decision last week in favour of Aboriginal people.

The land councils immediately announced they would extend the interim licensing arrangements for at least 12 months, while they entered into good faith negotiations with affected stakeholders such as government and industry groups.

Currently, there are more than 500 commercial fishers operating in Top End region, plus tens of thousands of recreational fishers.

The combined industries are worth several hundred million dollars a year.

As to the size of the area affected by the decision, the mainland coastline of the Northern Territory is about 5,100kms long. Of that, approximately 72 percent of it is currently Aboriginal land under the Aboriginal Land Rights Act.

Offshore islands in the Territory add a further 2,100kms of coastline. Of them, 95 percent is Aboriginal land.

So about 5,670 kms - over 80 percent of the total NT coastline - is owned by Aboriginal people.

But wait, there's more.

Most of the remaining 20 percent of the NT coastline is also subject to Aboriginal land claim, some of which has already been heard and recommended for grant.

So how long will negotiations take?

As a guide, the Bonaparte Gas Pipeline deal (near Port Keats) took just over a year to finalise, and it only had to traverse a few hundred kilometres of land.

The Blue Mud Bay decision affects more than 5,000 kilometres of coastline and tidal riverbanks, so it will take several years to resolve.

While it does, there's plenty of time to keep pondering more questions, like: What has white Australia done for the past 220 years, whenever it feels its interests have been threatened?

What did white Australia do when black Australia won Mabo?

What did white Australia do when black Australia won Wik?

And how the hell did black Australia pull this one off?

THE story of the Blue Mud Bay High Court decision has its roots, believe it or not, in England during the Middle Ages. Even Robin Hood and the Magna Carta have a place in this tale. But before we go back there it's helpful to understand the more recent background.

In 1963, Yolngu clans from Arnhem Land submitted two bark petitions to the Commonwealth parliament objecting to a proposed Nabalco bauxite mine at Nhulunbuy (also known as Gove).

The protest was followed by the 1971 Gove Land Rights Case (Milirrpum v Nabalco), heard by Justice Richard Blackburn in the NT Supreme Court.

Blackburn ruled, controversially, that the Yolngu could not prevent mining on their lands.

Although the blackfellas lost the case, in the process they highlighted a ridiculous and unsustainable position in Australian law - namely that there was no such thing as 'native title'. Mabo, 20 years later, overturned this legal myth, but in the meantime the unsuccessful Gove Land Rights Case led to the establishment of a Royal Commission in Aboriginal land rights.

Overseen by Justice Woodward, a series of reports were delivered to then Prime Minister Gough Whitlam.

Woodward recommended that Aboriginal people in the Territory be given land rights as a form of compensation for lands already lost. His strategy: "The doing of simple justice to a people who have been deprived of their land without their consent and without compensation."

In 1974, the Whitlam government developed the Aboriginal Land Rights (Northern Territory) Act. But shortly after its completion, of course, the government was dissolved by the Governor General.

It came to the new Liberal Prime Minister, Malcolm Fraser, to deliver on Whitlam's promise of land rights.

Fraser delivered a watered down version of the Act. Literally.

In his final report, Woodward had recommended that Aboriginal land grants should proceed two kilometres out to sea, past the low tide line. Woodward's reasoning was that Aboriginal people needed a 'buffer zone' and an additional capacity to create some form of economic development.

It was, in no uncertain terms, a reference to commercial fishing.

Fraser was unconvinced, and instead delivered land grants to the low water mark. Even so, land grants elsewhere in Australia (such as freehold land on Sydney harbour) are almost exclusively granted to the high water mark.

The NT Aboriginal land grants, with few exceptions, are quite unique in Australia.

Fraser was probably aware that at some point down the track, the grant to the low water mark might create some uncertainty about fishing rights on Aboriginal land. But that wasn't really the central issue of the day - the legislation was fundamentally about land rights.

So everything went ahead as planned by Fraser. Aboriginal people got land rights, and the NT government for the next 30 years pretended that there was no problem with issuing commercial fishing licenses to white operators to take fish between the high and low water marks of Aboriginal land.

It turned out to be a big mistake.

In 1994, a young lawyer named Ron Levy joined the Northern Land Council. On his first day at the NLC, Levy floated the idea of challenging the government's practice of issuing commercial fishing licenses over Aboriginal land.

The seeds of a lengthy court battle were sown.

In 2001, the High Court of Australia upheld the findings of the Federal Court in what's known as the Croker Island case.

Briefly, Croker was an attempt by Traditional Owners north of Darwin to assert their rights to exclusive possession, ownership, occupation, use and enjoyment of the sea and seabed surrounding their land.

Federal Court Justice Olney ruled that native title did exist in relation to the sea and seabed within the claimed area. But, he also found that those native title rights and interests were not exclusive and were 'non commercial' - ie. Aboriginal people had to share the sea-bed with everyone else; they could not prevent commercial fishing over their seabeds; and nor could they derive a commercial benefit from the sea-beds without first obtaining a commercial license from the government.

Even so, it was a partial victory - at least there was a recognition that native title did indeed exist over sea-beds.

Emboldened, the following year (2002) the NLC launched the Blue Mud Bay case on behalf of Traditional Owner Gawirrin Gumana, and the Yolngu people.

Broadly speaking, the High Court was asked to determine whether or not the Northern Territory Fisheries Act had the power to give someone a license to fish in waters that fell within the boundaries of land covered by the Aboriginal Land Rights (Northern Territory) Act.

The Northern Territory government - which had tried to knock the case over since its inception - won the first round before a single judge of the Federal Court in 2005.

The NLC appealed, and in April 2007, three judges of the Federal Court found in favour of the Yolngu. So the NT government - with the backing of the Commonwealth - appealed to the High Court.

After 14 years in the making, on 31 July, 2008 the High Court handed victory by a majority of 5-2 to Aboriginal people.

Ron Levy it's worth noting, is still the NLC's principal legal officer today.

So how did they do it, and what does it all mean for Aboriginal people?

It's off to the Middle Ages.

LAWS governing the ownership of wild animals (including fish) date back to England in the 12th century.

In 1199, John of England became King John of England. He inherited the thrown from his older brother, King Richard I (later known as Richard the Lionheart).

John, however, was not so well thought of.

In fact, he was roundly despised. So disliked was King John that he spawned the beginning of the rise of the modern democracy, and the demise of the ancient monarchy.

King John, it's worth noting, is the guy routinely depicted as the 'baddie' in the story of Robin Hood. While that's largely a fictional story, it does help understand last week's High Court decision quite well.

As the story of Robin Hood goes, King John had a bad habit of claiming everything he saw for his own.

The land, the waters, the crops - everything, he claimed, belonged to the King. Even the wild animals. In one modern version of the story, Robin Hood first clashes with the Sheriff of Nottingham after 'poaching the King's deer' in Sherwood Forest.

The British people eventually grew tired of King John's excesses and there was a rebellion against his rule.

In exchange for having some of his rights as King preserved, John was forced to agree that he, and all future Kings, would be subject to some of the laws that also governed British subjects.

This agreement was sealed in the Magna Carta, a document on which most modern democracies today are founded.

Over time, the Magna Carta led to a gradual transfer of powers from British Kings and Queens to parliaments. And this is where Aboriginal Territorians and commercial fishing rights re-enter the story.

British common law - thanks to the Magna Carta - eventually settled on the notion that 'ferae naturae' (or 'wild animals') are not owned by Kings at all, at least not while they're alive and roaming the landscape.

But once a wild animal is captured or killed, everything changes.

Ownership is then determined by the land on which the capture or killing occurred.

So, for example, if a kangaroo hops through your backyard in the Canberra suburb of Mawson, he is a 'free Kangaroo' - he belongs to no-one (not even the Queen).

But if you catch or kill him on your land, then you own him (provided, of course, it's legal to do so at the time - parliaments can occasionally decide that animals, such as crocodiles, are protected species).

Similarly, a fish that swims through the river (which passes through your backyard) is not owned by you. But you do own the right to catch that fish in the overlying tidal waters of your freehold lands.

And if do catch him, you own him.

Importantly, if someone else catches that fish on your land, then the fish is still yours - ownership of the fish is retained by the owner of the land.

But, if the fish is caught on land that is not freehold - ie. public land - then you are entitled to keep the fish for yourself.

That common law is called the 'public right to fish', and it stems from King John's signing of the Magna Carta.

Until last week, it was thought that this common law right - which has existed for hundreds of years, still existed in the Northern Territory.

Well, not any more.

What the High Court found in the Blue Mud Bay case is that the 'public right to fish' was extinguished several decades ago by the actions of successive Commonwealth governments.

Like fish, the irony of how that happened is delicious.

One role of the High Court is to determine the intent of laws made by parliaments.

In the case of Blue Mud Bay, the High Court looked at the issue of government-imposed regulations on fishers, such as bag limits and fishing methods for recreational fishers, and licence provisions for commercial fishers.

The court decided that in heavily regulating and controlling fisheries in the Northern Territory, the intent of parliaments was to extinguish the 'public right to fish'. You can't, after all, place substantial restrictions on an activity but at the same time claim that it's a 'free and unfettered' public right.

So the act of successive governments piling fishing regulation upon fishing regulation in a bid to try and ensure that fishing remains a sustainable, public pursuit has actually made it less 'public', and less accessible.

What's even more ironic is that this same legal principle - the High Court determining what was intended by an act of parliament - is precisely what led to the extinguishment of native title rights of Aboriginal people following the Mabo decision. Namely, that while successive parliaments up until 1992 never actually said they wanted to extinguish native title, their many actions related to land (such as granting freehold title) had that intention.

Essentially, the High Court has ruled that if native title is easy to extinguish - and it is - then so is the common law 'public right to fish'.

That doesn't really go close to even approaching equality - the right to hold 'native title' is obviously far more important than the right to fish. But for black Australia at least, it's nice to know that occasionally its not only black interests that get belted by white laws.

It's also comforting for black Australia to know that in a legal sense, there's nothing particularly special about the Blue Mud Bay decision.

It is not controversial. It's not 'judicial activism'. It's not even remarkable. And it's not going to be knocked over by a 10-point plan from a racist Prime Minister. The only way Blue Mud Bay can be knocked down is with legislation, and that would trigger 'just terms compensation' in the billions (and billions) of dollars. It's one piece of black justice that will probably outlive all of us.

In addition to the finding that the actions of governments can extinguish a 'public right to fish', the High Court also found that while a commercial fishing license gives someone the right to catch fish for commercial gain, it doesn't give them a 'right of access'.

In other words, just because someone holds a commercial fishing license from the NT government does not mean they can go wherever they like to catch fish.

If they could, then commercial fishers might, in theory, enter private property whenever they liked, remove your goldfish from its bowl and sell it to a fishmonger.

More broadly, in the case of Blue Mud Bay - and by association all Aboriginal land in the Territory - it means that commercial fishers cannot enter Aboriginal land without permission.

And that means they can't fish there either, which is particularly bad news for commercial operators who target three specific species.

You'll recall that when the Aboriginal Land Rights Act was created, it was legislated that Aboriginal land extend all the way to the low tide mark.

When the tide is in, lots of different fish and marine life can be caught by fishers between the high and the low water mark (known as the inter-tidal zone).

But three species in particular are almost always caught there - barramundi, mud crabs and trepang (also known as Beche-de-Mer or sea cucumber, a popular Asian delicacy also used in Chinese medicine).

So what the Blue Mud Bay decision means for Aboriginal people is that they now control access to the waters of a major fishery, and in effect, they have a monopoly over more than 80 percent of the water where barramundi, mud crabs and trepang are caught.

While the exact financial worth of that monopoly (as it relates to barramundi, mud crabs and trepang) is unknown, the good news is that for at least the past 15 years the NT government - as part of its management of the fishery resource - has forced the fishing industry to keep detailed records on what was caught, and where.

These are the same records that formed part of the process that has led to the extinguishment of the 'public right to fish'. More irony for you.

And they're the same records, presumably, that might form the basis of a compensation claim should Traditional Owners decide to pursue governments for having been forced to endure 30 years of commercial plundering of their fishing stocks.

There are, of course, some bigger questions that arise out of the Blue Mud Bay decision. Chief among them is whether or not such a stunning legal victory can have implications outside the Northern Territory.

Will Aboriginal people in Tasmania, for example, have a greater claim to controlling their states' fisheries industry?

Sean Brennan is a senior lecturer in law at the University of New South Wales and a Project Director at the Gilbert & Tobin Centre of Public Law.

"There's a strict legal answer to that question, and a broader policy one," Mr Brennan says.

"The strict legal answer is that the High Court decision relates to the Land Rights Act and how it interacts with the Northern Territory Fisheries Act.

"In strict legal terms, the decision has affirmed the strength of the rights held by Traditional Owners to control access to their traditional country.

"That goes to the low water mark, whether or not it's covered by tidal waters at different times of the day.

"In the land rights context, hopefully as the High Court has suggested it should lead to negotiations about permission to enter that country between Traditional Owners and fishermen.

"If we follow some of the positive examples from places like New Zealand and North America, that could very well lead to much greater participation by Traditional Owners in the lucrative commercial activities that take place in and around their country, including their sea country."

So the answer, in legal terms at least, is no. The High Court decision in Blue Mud Bay is unlikely to have legal implications outside the NT.

But what of the political implications?

"The broader policy answer is that it's a great opportunity for a new government which says it wants to take a more flexible and less litigious approach to native title and land issues, to do exactly that.

"To date, off-shore native title claims have not progressed very far in the courts, or in mediation.

"Although this High Court decision relates to the Land Rights Act, there's no reason in policy terms why the Commonwealth government can't use the decision as an opportunity to change course more broadly in the way it deals with Indigenous economic aspirations.

"There's an obvious chance for coastal Aboriginal people around Australia to participate more extensively in the commercial fishing industry and we should be capitalising on those opportunities.

"It's likely that that kind of progress would be welcomed across the country, or at least there would be a very strong constituency to support it politically."

Professor Jon Altman, from the Centre for Aboriginal Economic Policy Research (CAEPR) at the Australian National University agrees that the decision is legally restricted to the Territory, but that there is a moral case to expand it to other jurisdictions.

Above all else, Prof Altman - an economist and anthropologist - believes the decision provides opportunities for Aboriginal people to create their own economic base, on their own country.

"It opens up certain avenues for people, in terms of having a role and regulating access to the seas, and creating joint ventures with commercial or recreational operators.

"Aboriginal sea rangers are going to start filling exactly the same role as marine rangers in NSW.

"They're going to become the regulators, because it's their sea and their resource.

"They will be out to protect species, to manage them sustainably.

"It will be just like in the Great Barrier Reef Marine Park, no different.

"In a developmental sense, it could give us an impetus for closing some of the gaps."

Nicole Watson, a Murri lawyer based at the Ngiya Institute, a think-tank within the Jumbunna Indigenous House of Learning at the University of Technology, Sydney believes the decision is a wonderful victory for Indigenous Territorians.

But Ms Watson is keenly aware of how hard Indigenous people have had to fight to have their basic rights recognised.

Ms Watson doesn't believe it should be so hard.

"In Alexis Wright's book (Taking Power: Like This Old Man Here) she talks about the first two decades of living under land rights legislation.

"Everyone in the Northern Territory, from the man in the street to government ministers, developers, pastoralists - everyone - vehemently opposed the Act, and on occasions violently did so.

"But Aboriginal people fought in spite of all of that, and they're still fighting today.

"When are non Indigenous Territorians going to finally acknowledge their rights? "When are they going to acknowledge that Aboriginal people have a right to land, a right to somewhere to live?"

Ms Watson said the belief among some white Australians following the High Court decision appeared to be that Indigenous people would destroy commercial fishing in the Top End.

"I saw one article about a man who was thinking about buying a $500,000 [commercial fishing] license, but now is not going to.

"How ignorant is this assumption that Indigenous people don't know anything about negotiation?

"We've been negotiating our existence for the last 220 years.

"We invented the word."

Those negotiations are likely to be ongoing for some time. It could be as long as two to three years before the issue is settled.

Likely outcomes include popular fishing areas (like Daly River) requiring no permit for recreational fishing, while less popular areas might require a land and fishing permit.

As for commercial negotiations, joint ventures are inevitable, and so is Indigenous dominance of parts of the fishing industry within 20 years.

But despite her anger at the hostility of governments and white interests to Aboriginal rights, Ms Watson does not advocate Indigenous Territorians flexing their new found rights muscle simply because they can.

"I think you have to respect the wishes of Traditional Owners," she says. "If it's their wish to negotiate, so be it.

"Personally, I think there's a lot of bravery in that approach as well... sitting down at the negotiating table with people who have a history of not respecting your rights.

"I think that's brave and it demonstrates a lot of foresight. They're not only thinking of themselves, but of their children.

"Aboriginal people are the only ones genuinely committed to peaceful co-existence, but it would be refreshing if the Northern Territory government and the Northern Territory fishing industry actually took pause and learnt by example."

Or they could burn another Indonesian fishing boat. Time will, of course, tell.

bigread@nit.com.au

* Chris Graham is the editor of the National Indigenous Times newspaper.

Source: National Indigenous Times

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