Arnhemland Aboriginal Land Trust v Director of Fisheries (Northern Territory) [2000] FCA 165

Arnhemland Aboriginal Land Trust v Director of Fisheries (Northern Territory) [2000] FCA 165

The grant to the Land Trust under the Land Rights Act to the low water mark does not abrogate the public right to fish in tidal waters, which persists as regulated by the Fisheries Act. The grant abolishes the public right to fish landward of the high water mark line in rivers, streams, and estuaries, vesting exclusive rights in the Land Trust. Licenses under the Fisheries Act authorise fishing in the intertidal zone subject to statutory regulation and do not confer proprietary interests in land. Certain activities (e.g., affixing nets temporarily) are within the public right to fish; others dependent on permanence or attachment to the solum may be excluded. Territory legislation can...

Jurisdiction
Australia
Judgment Date
24 February 2000
Procedural Posture
Civil / Determination of Preliminary Questions Before Trial
Outcome
Provisional answers provided to agreed questions; grant does not exclude licensed fishing in tidal waters but abolishes public right to fish in landward rivers, streams, and estuaries.
Legal Topics
['effect of Grant Under Aboriginal Land Rights Act' 'public Right to Fish' 'statutory Fishing Licences' 'interpretation of Boundaries' 'proprietary Interests in Land' 'statutory Regulation and Abrogation of Common Law Rights' 'relationship Between Commonwealth and Territory Legislation']
['aboriginal Land Rights' 'fisheries Law' 'property Law'] ['effect of Grant Under Aboriginal Land Rights Act' 'public Right to Fish' 'statutory Fishing Licences' 'interpretation of Boundaries' 'proprietary Interests in Land' 'statutory Regulation and Abrogation of Common Law Rights' 'relationship Between Commonwealth and Territory Legislation']

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Procedural Posture

Civil / Determination of Preliminary Questions Before Trial

Legal Issues

  1. 1 ['Whether the grant excludes the public or statutory right to fish in tidal and non-tidal waters overlying Aboriginal land' 'Whether licences under Fisheries Act authorise fishing in waters overlying Aboriginal land without permission of the Land Trust or Council' 'Interpretation of Land Rights Act provisions as to extent of grant and public rights' 'Nature and extent of public right to fish, including scope for commercial and non-commercial fishing' 'Whether the public right to fish has been abrogated by Fisheries Act']

Ratio Decidendi

The grant to the Land Trust under the Land Rights Act to the low water mark does not abrogate the public right to fish in tidal waters, which persists as regulated by the Fisheries Act. The grant abolishes the public right to fish landward of the high water mark line in rivers, streams, and estuaries, vesting exclusive rights in the Land Trust. Licenses under the Fisheries Act authorise fishing in the intertidal zone subject to statutory regulation and do not confer proprietary interests in land. Certain activities (e.g., affixing nets temporarily) are within the public right to fish; others dependent on permanence or attachment to the solum may be excluded. Territory legislation can...

Court Disposition

Provisional answers provided to agreed questions; grant does not exclude licensed fishing in tidal waters but abolishes public right to fish in landward rivers, streams, and estuaries.

Orders

  • ["Provisional answers provided to questions as outlined; formal answers to be given after parties' consideration."]