BY LAUREN BUTTERLY

On 30 May 2017, the Indigenous Affairs Minister Nigel Scullion announced 7.5 million dollars to help ‘finalise Aboriginal land claims over sea country’ in the Northern Territory (NT). These ‘land claims’, or rather negotiations, relate to the intertidal zone and result from the decision in Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 (widely known as the Blue Mud Bay case). During the High Court hearing, counsel for the NT stated that these issues are ‘of true significance because [this case] applies to some 84 to 88 per cent of the coastline’ of the NT – thousands of kilometres. Given this, the Blue Mud Bay case is one of the most important Aboriginal land rights decisions in Australian history.

The Minister’s funding announcement is significant and represents a positive step in the negotiations that have followed the Blue Mud Bay case. But why has it taken almost a decade to get here?

Refresher: The Blue Mud Bay case

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 including river mouths and estuaries) in the NT could be claimed and recognised as Aboriginal land. Under the statutory land rights system in the NT (which is distinct from native title) Aboriginal land takes the form of inalienable fee simple, which the High Court has confirmed is the practical equivalent of full ownership.

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. Pursuant to the ALRA, in 1980 the Governor-General executed deeds of grant of an estate in land to the Arnhem Land Aboriginal Land Trust (Land Trust). The grant extended to the low water mark. Section 70 of the ALRA provides that a person shall not enter or remain on Aboriginal land. There is a penalty if a person violates s 70. Section 70(2A)(h) sets out that it is a defence to a penalty under s 70 that the person enters or remains on the land in accordance with a law of the NT.

In 2008, an appeal lodged by the NT Government was heard in the High Court as to whether a person holding a licence under the Fisheries Act 1988 (NT) could fish in the intertidal zone, within the boundaries of the Arnhem Land grant, without the permission of the Land Trust. The relevant questions were:

  • whether fishing in intertidal zones (or tidal waters within the area of the grant) is to ‘enter or remain on Aboriginal land’; and
  • whether a person who holds a licence under the Fisheries Act enters or remains on land ‘otherwise in accordance with’ a law of the NT.

The High Court majority (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ, Heydon and Kiefel JJ dissenting) 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 grant. That included the intertidal zone. With respect to the second question, the majority held that the Fisheries Act did not confer power to grant a licence which, without more, would authorise the holder to enter and take fish from areas within the boundary of ‘Aboriginal land’. The practical outcome of the Blue Mud Bay case was that entry into waters over Aboriginal land for a purpose such as fishing requires permission from the relevant land trust.

The case opened the possibility of unprecedented Aboriginal control and involvement in varied marine industries and environmental and cultural conservation. Yet, for many people ‘down south’ this 2008 decision may have appeared to slip from the radar.

The immediate aftermath of the decision

Immediately after the Blue Mud Bay decision was handed down an interim ‘amnesty’ was confirmed, so that nothing changed in practice ‘on the water’. Non-Indigenous fishers, both recreational and commercial, could continue to fish and access the intertidal zone (subject, of course, to the more general legislation and regulations).

In fact, after the earlier unanimous decision of the Full Federal Court in favour of the Land Trust and Northern Land Council in March 2007, a ‘minimalist licensing regime’ was established pending the outcome of the High Court appeal. Interim licences were issued automatically and without fee to commercial and recreational fishers. An NT Government media release in May 2007 noted: ‘In our discussions with the Land Councils we have tried to ensure all Territorians can legally continue to fish, free of charge, in all Territory waters over the coming months. The [Land] Councils have agreed with our position that the temporary permits be free, granted automatically, and fisheries regulations and enforcement processes remain in place.’ At the end of this media release the then NT Attorney-General, Syd Stirling, noted that he himself had already gone and got his permit. There can be no doubt that fishing is ‘dearly regarded’ by the non-Indigenous community in the Territory. The NT Government had in fact applied for a stay of the Full Federal Court’s orders, but was unsuccessful.

The NLC foreshadowed that this arrangement would continue as an ‘amnesty’ for 12 months if they were successful in the High Court and this was confirmed on the day of the Blue Mud Bay decision. The then NT Chief Minister, Paul Henderson, stated on that day: ‘I will agree through a negotiated agreement … I believe there is goodwill on all sides.’ The Chair of the NT Seafood Council said he was ‘relaxed’ about the decision and had ‘had positive talks with the Northern Land Council’. In this sense, as Sean Brennan observed at the time, the media reportage and comments from key players were restrained and the ‘political breathing space provided by the long amnesty and its maintenance of the status quo’ paid some dividends. Although, it is safe to say that, at that stage, no one would have predicted that in 2017 we would still only have partial resolution.

A few months after the High Court decision, in November 2008, the NT Government noted its commitment to working with all ‘stakeholders affected’ by the Blue Mud Bay case and working out an agreement. The Chief Minister at the time of the November media release, the recently re-elected Paul Henderson, stated that, ‘[w]e want to facilitate a negotiated outcome which respects the rights of Traditional Owners and recognises the importance of fishing for all Territorians’. The NT Government committed to negotiating a Fisheries Management Framework which incorporated greater Aboriginal involvement. Further, the Chief Minister noted that the NT Government had sent a ‘fact finding delegation’ to New Zealand/Aotearoa to look closely at Māori involvement in fisheries. The NT Government’s media release also emphasised the ‘fantastic work’ done by Indigenous marine rangers in protecting sea country and indicated that they ‘will play a greater role in the management of our fisheries’.

The interim agreement made immediately following the Blue Mud Bay decision has been extended each year since and, in its current iteration, has been extended until December 2017. However, the last five years have seen the negotiation of more specific ‘permit free access’ agreements in particular locations of high non-Indigenous fishing interest (such as Nhulunbuy in east Arnhem Land). There are more, and bigger, negotiations to come.

How did we end up in 2017 with only partial resolution?

The tone of the Chief Minister’s media release in November 2008 was ambitious, but so far only very modest steps have been taken. Between 2008 and 2012, publicly it appeared that not much was going on other than the interim agreement being extended and, by default, the negotiation period being extended. However, there were ripples beneath the surface and negotiations continued.

As with anything of this magnitude, cultural and strategic decisions would have had to be made about the approach to the negotiations. For example, was it possible to have a ‘whole of Territory’ approach, or was it more appropriate for individual Traditional Owner groups to negotiate? These are complex cultural questions that would have involved sensitive and careful negotiations ‘behind the scenes’. Further, such negotiations require time, personnel and funding to enable travel in remote areas. Even allowing for these complications, Traditional Owners have grown frustrated at the lack of progress, as Minister Scullion acknowledged in his May 2017 announcement. This underpins why the money for negotiations is such a positive and timely step. Stakeholders in commercial and recreational fishing are also keen at this stage for resolution and certainty; although Daniel Kimberley, the chairman of NT Seafood Council, recently stated that requiring fishers to obtain multiple permits would not be an ‘easy solution’.

Since 2012, a number of agreements have been made between the NT Government, relevant Aboriginal land trusts and the NLC. These agreements have been made over seven discrete areas (sometimes more than one agreement covers larger areas) where a higher level of non-Indigenous commercial and recreational fishing interests might be expected. These areas include Wadeye, Nhulunbuy, Daly River (and Daly River mouth), Borroloola/Sir Edward Pellew Islands and the Tiwi Islands. Most of these agreements are for 20 years, but there are some that are for a shorter period. Each of these agreements provide, broadly, for:

  • permission for recreational fishers and other recreational users to access these waters without individual permits or permit fees;
  • permission for commercial fishers and other commercial uses to access these waters; and
  • a variety of benefits to the communities.

This last point is the one that varies most across the agreements. These benefits include funding to support local marine ranger programs, enhancement of Aboriginal Coastal Fishing Licences, investment into infrastructure, environmental studies, the establishment of governance bodies (such as a Regional Management Consultative Committee or Aboriginal Regional Fisheries Committee) and support to develop local codes of conduct for visitors to the area.

The variety of benefits provided also gives an insight into the various mechanisms and tools that relate to sea country in the NT. Indigenous marine ranger programs are taking on an increasing role, including in monitoring compliance with fisheries regulations. Three of the agreements include commitments for ‘funding as cash payments’ to recognise the level of recreational and commercial fishing (including Fishing Tour Operators) in the region (see for example the Daly River mouth agreement, McArthur River/ Sir Edward Pellew Islands agreement and Tiwi and Vernon Islands agreement). The full copies of these agreements are not available publicly; rather a synopsis is available on the NT Fishing Arrangements website.

Watch this (sea country) space

The 7.5 million dollars will make a positive contribution towards resolving sea country issues by negotiation in the wake of the Blue Mud Bay decision. It is trite to say that negotiations require substantial funding, particularly for travel to remote areas. Use of the term ‘finalise’ in Minister Scullion’s statement – to suggest that this is just a case of ‘tidying up’ or ‘finishing off’ – seems to undersell, however, how much is still on the table and the opportunity to negotiate innovative, Indigenous-led outcomes. Recently, the CEO of the Northern Land Council, Joe Morrison, stated that: ‘The consensus is they [the Traditional Owners] want to maintain control and management over their sea country.’ It must be emphasised that both the contemporary and historical context of sea country rights in the NT (back to the first sea country inquiries in the early 1980s) has always revealed that Traditional Owners do not seek to exclude others on a blanket scale. As John Christopherson, who is a traditional owner in the Coburg Peninsula region and deputy chairman of the NLC, recently stated: ‘It’s not about exclusion or pushing people away. We’re still having that discussion.’

Whilst the NT Government has ‘stressed’ that they want ongoing ‘permit-free access’, the additional funding opens up new possibilities in these negotiations, particularly on the more global, ‘Territory-wide’ level. For example, NLC deputy chair John Christopherson stated recently that: ‘People want a real say in how that environment is managed, one of the things we’ve put on the table is the likes of a statutory authority which makes decisions about the marine environment and the harvesting of resources on sound science.’ This is a time and opportunity for innovation and the Traditional Owners and the NLC have a strong hand on the back of the Blue Mud Bay case. It is worth reminding ourselves that the Blue Mud Bay decision held that entry into waters over Aboriginal land for a purpose such as fishing, requires permission from the relevant land trust. This powerful affirmation of the existing legal rights of Traditional Owners on the NT coastline is the back-drop to these negotiations.

Lauren Butterly is a lecturer at UNSW Law.  Lauren researches in the areas of environmental law and environmental governance, native title, Indigenous rights and administrative law.

Suggested citation:  Lauren Butterly  ‘A decade on: What happened to the historic Blue Mud Bay case (and why is it in the news again)?‘ on AUSPUBLAW  (20 June 2017) <https://auspublaw.org/2017/06/what-happened-to-the-historic-blue-mud-bay-case/>