At the time of writing, Northern Territory recreational anglers are again dealing with another recreational angler lockout by traditional owners under the Blue Mud Bay High Court ruling, this time in the upper tidal reaches of the Finniss River. This latest closure came on top of the closure of a vast stretch of coastline across the top of Bathurst and Melville islands in the Tiwi Islands.
The recent closures are a result of the Aboriginal Land Rights (Northern Territory) Act 1976 which was passed by the Commonwealth Parliament under the Fraser Government. This legislation granted title to Aboriginal Land Trusts for most of the traditional lands in the Northern Territory. These grants extended to the mean low water mark and covered 80% of the NT coastline. The legal view at the time was that the grants did not extend to the waters overlying the Aboriginal controlled intertidal land. In 2008 the High Court Blue Mud Bay ruling overturned that view and determined that the control and Aboriginal ownership did extend to waters overlaying Aboriginal Land to the mean low water mark.
With all Aboriginal owned land in the Northern Territory, access is restricted and visitors will need a permit or permission to enter from traditional owners.
AFANT has been involved in these land rights and access issues from before the Blue Mud Bay ruling and this issue is one of the most complex and difficult issues facing recreational angling in the NT. The Blue Mud Bay ruling and the ability for traditional owners to restrict access to the intertidal waters is a Northern Territory specific problem because of the Commonwealth legislation and the way the original land grants were made. This issue is extremely unlikely to have any flow-on to similar situations interstate.
The major challenge and risks demonstrated by the Tiwi and Finniss access issues are on land (intertidal area) grants that predate the Blue Mud Bay ruling. Land grants that were made after the Blue Mud Bay ruling or areas that are still before the courts are easier for government to resolve. Significant areas are still up for land (water) claim including some of the most important fishing areas of the NT. With all unresolved land grants the issue of detriment and access to existing users is addressed through either the courts (Aboriginal Land Commissioner) or the Commonwealth or Territory Governments who have the final sign-off on each land claim.
So while a large number of new and unresolved land (intertidal waters) claims are still before the courts and being negotiated, the government is rightfully focusing on those areas of high recreational fishing pressure that were part of the original land grants.
At this stage agreements have been reached for most of the tidal reaches of the Daly River and the MacArthur River and Sir Edward Pellew group of islands in the gulf. Both of these agreements are for 20 years.
Agreements have also been reached for the Mini Mini/Murgenella area near Coburg (3 year trial) and the Kenbi area including Bynoe Harbour and parts of Darwin Harbour.
AFANT is extremely concerned with the limited timelines of some of the agreements as this will require future governments, land councils and TO’s to renegotiate and reach new agreements at some time in the future. Only the Kenbi claim has been settled in perpetuity which is AFANT’s preferred outcome.
A large number of intertidal waters claims are also still before the courts or yet to be settled by government and traditional owners. These claims cover coastal areas of Kakadu, Cape Hotham, Chambers and Finke Bays and river systems including the Mary, Roper, Victoria, Fitzmaurice Rivers and sections of the Daly and Finniss. AFANT is recognised as an interested party in these hearings.
In the five years since the Blue Mud Bay decision and despite the assurances from successive governments, only a very small portion of the Territory’s intertidal waters access has been resolved. The complexity, confusion and lack of clarity on the issue only make the issue harder for recreational fishers to understand.
AFANT’s aim is to protect the spectacular fishing the NT has on offer and ensure that government honour their commitments on negotiating permit free access to fishing across the NT. What is clear is that the issue will be an ongoing one, for all the above reasons. We would encourage anglers to keep informed through the NT Government or AFANT websites for all developments.
With good luck, good will and some hard work, AFANT believes that this issue will be resolved and anglers will continue to have access to all Blue Mud Bay waters including the great fishing in the upper Finniss River and the Tiwi Islands.