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The Blue Mud Bay Decision
Background
How This Effects The Fishing Community
The Affected Areas
In Summary
"The situation is that if you are planning to visit and fish the affected areas, then by law you should have a free temporary fishing permit which you can obtain from the NLC website. "
(Back Ground From: www.fishing.nt.gov.au )
On 2 March 2007, in the Blue Mud Bay case, the Federal Court held on appeal that the licensing system under the Fisheries Act (NT) does not apply regarding commercial fishing in tidal waters overlying Aboriginal land (ie freehold) – being the inter tidal zone and tidal rivers.
The court held that the power to grant commercial (and recreational) fishing licenses regarding tidal waters overlying Aboriginal land was instead vested in Aboriginal Land Trusts under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
This outcome flowed from the court’s finding that a grant of Aboriginal land includes the right to take fish from overlying tidal waters, with the public right to fish being abrogated.
The decision has broad implications, since over 80% of the Northern Territory coastline (including islands) is Aboriginal land to the low water mark, in circumstances where both Aboriginal and non-Aboriginal people engage in commercial and recreational fishing.
On 16 March 2007 the court declined to stay or suspend its decision pending a High Court appeal since, having declared the law, it had no power to order that the law was not in effect.
On 30 March 2007 the NT Government filed an application for special leave to appeal to the High Court, which will be heard later in 2007.
In conjunction with the NT Government and the NT Seafood Council, the Northern Land Council has identified a temporary commercial and recreational licensing regime which, insofar as feasible, will maintain the status quo until at least two months after the High Court decision.
If the Government’s legal action is successful, then the law will be overturned and go back to the way it was before.
If the legal action is not successful, then a new arrangement for fishing will be required.
How This Effects The Fishing Community
If the High Court's decision goes in favour of the Northern Land Council, fishing in the Northern Territory will never be the same. The freedom to fish many of our rivers without permits will be an asset lost, both to us and future generations. It seems that the chance of closures to some currently fished areas will be in the sole control of the NLC.
If the High Courts decision favors the NLC, Fishing Permits will be required by law. Those fisherman who choose not to hold a permit and fish in the effected area’s may be prosecuted under the NT Land Rights Act.
I spoke with Assistant Commissioner Mark McAdie of the NT Police in a meeting held by the NT Government. I asked him a series of questions regarding the Blue Mud Bay decision. This is what he had to say.
Did the federal courts decision make the NT Fisheries Act null and void on the freehold area's in question?
Mark McAdie "The effect of the decision was to renew the NT Fisheries Act invalid on aboriginal land. "
If I didn't have a permit as an amateur fisherman and I broke the NT Fisheries Act inside the freehold area, what legally could happen to me under the NT Fisheries Act?
Mark McAdie "There are other laws, unaffected by this decision, which would be broken. For instance, one of the conditions of the permits issued by the NLC will be that you obey the applicable NT Fisheries laws and regulation as if they applied on that land. The offences you might commit carry substantial penalties of their own and the NT Police are committed to ensuring that the effect of this decision is minimised by enforcing those laws appropriately.
Secondly, it can be difficult for the layperson to be certain whether the exact spot they are on is aboriginal land or not as each land trust which has a river boundary might have one of four different situations pertaining to it. This means that the boundaries are in subtly different locations. In addition, most of the laws which regulate amateur fishing are laws of possession and these remain valid when you leave aboriginal land. In the end, you would need to be very certain about what you are dong, the thing you are betting is your catch and your boat.
The sensible thing to do is to have the permit and continue to obey the law. Finally, one of the possible outcomes of the High Court Appeal may re-instate the NT Fisheries Act which would mean that it does, in fact apply now. Police will gather evidence of offences and if the law is re-instated by that outcome people can expect to be prosecuted."
Are there going to be amendments to the NT Fisheries Act. If so what will the amendments entail?
Mark McAdie "What might need to be done in the long term is dependent on the outcome of the High Court Appeal. It is however, unlikely that the solution will lie in changes to NT legislation, the most likely change will be to Commonwealth legislation as the situation arises from the combined effect of NT legislation and Commonwealth legislation"
If the High court's decision is in favour of the NLC is the NT Police in a position where they can police the new permit system with effect?
Mark McAdie "The permit system is based on legislation that has been in existence for about 30 years, it has been and will continue to be effectively enforced. Again, so that your readers can understand completely, it is not simply a case of "The law is not effective and I can do as a I want". Some legislation is not presently enforceable, but much of the law relating to amateur fishing has not changed. The fact is that this situation only changes the methodology of enforcement, it has not rendered the police powerless to Act. If you break the law you run the same risks as before, hefty fines and loss of your boat and equipment. On the other hand, police will act with good sense, where people are making an effort to obey the law and have made a mistake which means they are breaking the law they will be informed of what they need to do to correct the situation and are not likely to be prosecuted. If you deliberately break the law you can expect to be prosecuted."
So I wonder. Will the NT police dedicate sufficient time and resources to policing this new permit system or will they utilize their efforts on more important matters in the community. Of the fisherman I have spoke to the vast majority sound as though they would like to boycott the permit and choose to fish the areas without the permit. Mark MaCadie clearly counsels against this. However, if there is a grass roots protest, I wonder how many anglers will be prosecuted as an example to the rest of the fishing community?
I spoke to AFANT CEO Chris Makepeace who said AFANT have been fighting the decision to the best of their ability. "AFANT are totally against any form of a permit system." he said. "AFANT believe that their members are also against the permit system and don’t intend on giving their details to the NLC." Chris also expressed concern that Map 1, which was presented to AFANT, does not clearly show where their members can legally fish without the permit. He said that the map had no reference points, making it hard to decipher the areas in question. He was also concerned about the Finness River area saying AFANT believes there is a public boat ramp affected by the freehold decision.
I also talked to Jamie Gallacher who is the Deputy Chief of Staff for the Chief Ministers Office. Jamie emphasised that the Government is opposed to the Federal Court’s decision and are doing everything in their power to fight the decision.
This was his response to my questions:.
Besides an area in Canada, are we the only country in the world to grant ownership to waters other than the drying area of a tidal river?
Jamie Gallacher ” The Federal Court decision does not grant ownership of water. It grants
ownership to the land that lies between the high and the low watermark
(commonly called the inter tidal zone) where that land abuts Aboriginal Land.
For access to that land (and therefore water that covers it) a permit is
required from the Northern Land Council. There are many examples throughout the
world where private landowners control access to their land for fishing. There is the example of Scotland where permission is required from landowners to fish in
the lakes and rivers. There are also other examples of this in the Inuit Lands
in Canada and Alaska. New Zealand also officially recognizes Maori ownership of
marine resources”.
There is a concern that this arrangement is but one string of many to be played by the NLC?
Jamie Gallacher "The Government does not know what the intention of the NLC is after the High Court has made its decision"
Ninty percent of my customers are concerned about applying for a Free Fishing Permit because they believe it won’t continue to be a free permit system. They feel it will more than likely go on to become a permit that will encounter costs to obtain?
Jamie Gallacher "The Northern Territory Government is opposed to any form of fishing licenses."
Once I obtain a license if friends were to come fishing with me would they need to apply for a license to accompany me to the licensed area or will it be covered under my license. For e.g if my relatives come up from down south or if I was to take my boss out fishing to the Daly River would they need permits as well?
Jamie Gallacher "Everybody who wants to fish in the areas affected by the decision will need to have a license/permit (unless they are fishing with a tour operator, when they will be covered by the tour operator's commercial license). The Application form allows an applicant to nominate other people who reside at the same address to be additional persons covered by the license/permit, which could include interstate relatives if they are staying with you. The application
form is very easy to fill out, and can be completed on line, by e-mail or fax or post. The Land Councils have advised that they understand that sometimes people decide to go fishing on the spur of the moment. If, for example, your
boss accepted an invitation on Friday night to go fishing with you on Saturday, your boss could lodge an application form on the Monday with Friday's date, and the license/permit will be issued from the Friday. "
I only had one question for Alastair Shields who is currently the Solicitor for the NT Government. My question was simple.
If the NLC wins the appeal in the high caught is do they have to power to deny access to anglers to any of the freehold area in purple on Map 1?
Alastair Shields "Yes, that will give them the authority but I doubt that will take place. "
THE AFFECTED AREAS
The main areas on Map 1 affected by the decision are the Daly River system and the Finniss River area. The Moyle River was always an area where permits were permitted and there is a small area at the top of Woods Inlet and an area along the Adelaide River which is also affected.
If you take a closer look at the map when it is blown up, there are several areas along the Daly which are manly pastoral areas such as Elizabeth Downs and Litchfield Downs which are not included in the free hold areas. This makes the effected area hard to decipher from the none effected areas. The advice from both the NT government and the NT Police is to just have a permit to be sure you are covered in the eye of the law. We also have to remember this decision has affected 80% of the NT coastline and inland waters. Map 1 is only the first of several Maps to be made to show the effected area once the high court has made its decision.
IN SUMMARY
A decision has already been made in favor of the NLC. The NT Government is taking steps, (whether they are large steps or small steps is debatable) to appeal the Decision. The NLC now have the power to apply a permit system to freehold areas shown in purple on Map 1.
According to the NT Police it is an offence to fish the area without a permit. The NLC have the power to deny access to freehold areas if they feel it’s necessary. (Which they haven’t yet suggested doing.)
When asked by members AFANT if they should obtain temporary permits, prior to July 31st 2007 they have replied “No we don’t recommend that!”
There is a mood amongst the wider fishing community who at this point in time are reluctant to obey the new permit system thus leaving a “Catch 22” situation for them and the NT Police to deal with.
On top of all this, many people feel that we seem to be dealing with a powerful and so far hidden agenda of both the Northern Territory Government and the Northern Land Council that could produce a snowball effect of ill will, decisions made on the run, and significant and permanent damage to the recreational fishing industry.
Many people whom I have spoken to over this matter feel the NT Government are not doing enough to oppose the Federal Courts decision. A number of people say the NT Government do not wish to step on the toes of their aboriginal voting community.
Some I have spoken to say the Federal Government could quite easily fix this problem overnight! Many people have said this won’t stop with the so called Blue Mud Bay project.
This is a touchy subject with all stakeholders. Perhaps a simple compromise could be made with the NLC to put legislation in place in the affected area that would have an effect similar to the Mary River Systems policy. That entails and lesser bag limit of 2 barramundi instead of 5, and could be extended to include other species.
A closure period for breeding is already in place for the Daly River. If the NLC are truly concerned about fish stock management and not revenue raising they should be very approachable when it comes to permits and closures of rivers that have always been made accessible to the fishing community.
This is one of the most significant happenings to the recreational fishing community for many years, and the downstream affects could be vital to our future.
What amazes us in this situation is the lack of enthusiasm and input from our Federal politicians. This whole affair “is a Federal affair!” triggered by a Federal court case. We understand that the Federal Government could easily have an immediate and favourable affect on this outcome with a very simple piece of legislation virtually returning the legislative framework back to where it was.
Judging by the deafening silence coming out of Canberra about this, it would seem that they have decided it is an issue best left until after the Federal election. We beg to differ, and would encourage people to lobby their federal members and seek clarification of where they stand in this mess!
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