High Court of Australia

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

236 CLR 24; 82 ALJR 1099; 248 ALR 195

30 Jul 2008

Case Number: D7/2007

Before

Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan, Kiefel JJ

Catchwords

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

Statutes – Construction - Whether Fisheries Act, by necessary implication, abrogated any pre-existing common law public right to fish in tidal waters - Whether Fisheries Act permits licensee to enter any place to fish in accordance with licence - "Application" of Fisheries Act - Public rights of navigation - Approach to interpretation - Whether legislation extinguishing Aboriginal rights requires specificity.

Words and phrases – "Aboriginal land", "enter or remain on Aboriginal land", "Estate in Fee Simple", "public right of navigation", "public right to fish", "waters of the sea".

Aboriginal Land Act (NT) – ss 4, 5, 12.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – ss 3(1), 70(1), 70(2A), 73(1).

Fisheries Act (NT) – ss 10(1), 10(2), 11.

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