Check this!

Talk about bungled boat ramps, net buybacks, marine no-go zones, mining disasters etc here.
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dannett
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Re: Check this!

Post by dannett »

Hi Ronje,

I am going to read the link you sent in more detail when I get a chance.

Did you read the High Court of Australia proceedings also published on the same site? http://www.austlii.edu.au/au/cases/cth/HCA/2008/29.html Because that was pretty clear that the NLC could not prevent people from fishing and taking fish in intertidal zones.

I'm not sure I fully understand either but correct me if I am wrong on this. The Blue Mud Bay decision prevents unauthorised commercial activities in "aboriginal waters" but does not explicitly extend to amateur fishermen. It is intended to allow the Aboriginal people the ability to commercial develop these areas. The High Court Ruling clearly states, "The Land Trust does not have the right to exclude the public from that use" because basically, the Aboriginal Land Act does not cover Waters of the Sea.

Has something changed or is the NLC flexing its muscles to see what it can force upon us all (probably as leverage for other negotiations)?

Daniel


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Re: Check this!

Post by Fruity »

Sounds like the Land council are trying to rewrite the Law,
Read 162.
I would allow the appeal, set aside the declarations, make declarations as to the meaning of the terms "Aboriginal land" and "waters of the sea", make a declaration to the effect that the Land Trust does not have the power to exclude persons from fishing in intertidal zones and declare that the power to do so is contained in Pt III of the Aboriginal Land Act. On the grant of special leave the appellant undertook to pay the costs of the first, second and third respondents. There should be an order accordingly.
Cheers :cheers:
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Re: Check this!

Post by dannett »

They obviously want exclusive use in order to control access and revenue.

If it was an open deal to pay a usage fee of say $100 / year to use all of these areas as they stand I would happily support it.

The only thing is it has to be open, let us know what the deal is. Access could be for a year permit for private individuals only. A per guest / per day rate for the guides with a gross limit on the size and total number of operators allowed. Private access should be for a year licences only, no short periods. This will keep the numbers down. The funds go directly into employing local rangers to maintain the parks, a small royalty is paid to the NLC to manage the permits. The organisation is allowed to run 25 years tax free to get established provided that all tax revenue raised in that period is rebated directly into capital works projects on the reserves.

The deal is in the dark within the court rooms. The NLC should really put in a public proposal that benefits the entire community. Get it out there and get people on board because the legal side will be far easier and quicker.
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Re: Check this!

Post by ronje »

Hi Daniel

That transcript was the second link that I put up.


Fruity wrote:Sounds like the Land council are trying to rewrite the Law,
Read 162.


Hi Fruity.

Paragraph 162 isn't the view of the High Court Bench.

Its the view of the dissenting voice (Kiefel) only. The majority view appears right at the start of the document.

These documents simply allow each participating Justice to give their reasoning. Collectively if they agree or individually if they don't.


Justices Gleeson, Gummon, Hayne and Crennan shared a common view with their collective reasoning outlined in paragraphs 1 - 62 and ended with their conclusion and opinion on what the Orders should be.


Kirby's view and reasoning starts at para 63 -75. Generally he agreed with the first 4 but for slightly different reasons.


Heydon's reasoning along with his conclusion and view on what the Orders should be are in paras 76 - 109.


Paras 110 - 162 contain Kiefel's (the dissenting Justice) opinions, conclusions and what she thinks the Orders should be are contained in 160 -162. Para 162 isn't the majority view.


Tricky little buggers in the legal fraternity eh?

I don't believe that the NLC is trying to re-write history. The Blue Mud Bay High Court decision is pretty clear in their favour. The High Court appeal came about because the NT Govt didn't like the decision in the Federal Court that the commercial fishing licences that they issue didn't allow commercial fishing on inter-tidal zones on aboriginal land.

I also think the map is a genuine attempt to clear up a bit of the mis-information.

However, I do believe that having control of access to the inter-tidal zones gives the NLC a strong negotiating position with the NT Govt on lots of matters like a single Govt payment to allow public access to TO land (including waters), jobs, training, services etc.

The only bones of contention are whereabouts and how much.

One other thing that I noted in the transcripts (not sure if it was in the Federal or High Court) was the reference to low water mark. One of the Justices/Judges referred to Mean Low Water Springs. Usually its Lowest Astronomical Tide (LAT).
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Ronje
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Re: Check this!

Post by dannett »

Hi Ronje,

I didn't realise the transcript was broken down like that and just expected that was the final word. So I will read on again, but that explains a lot. As you say, tricky.

Dan
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Re: Check this!

Post by ronje »

Dan

Do you know the relationships between the Commonwealth Govt's Aboriginal Land Rights (Northern Territory) Act - 1976, the Northern Territory Land Rights Act and the NT Fisheries Act?

They deal with different things and there is a pecking order in how Commonwealth and State/Territory legislation interact especially when they seem to be in conflict.

Am happy to give a quick simple (as possible) rundown if you think it might be useful.

I found the other thread about this stuff and you seem to know your way around the Austlii site.
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Re: Check this!

Post by Chubbs93 »

Why not make a yearly permit take a lot of confusion out fishing meant to be fun getting a permut all rhe time is a joke
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Re: Check this!

Post by dannett »

Ronje,

That's the pecking order as I understand it.

And in simple terms my understanding is the Aboriginal Land Act is the law, the constitution if you like. The NLC is an administrative body who can apply to the NT government to gazette areas of use based on the frame work that the Aboriginal Land Act allows. The Fisheries act has nothing to do with this but but rather legislates where, how and when you can fish based upon a range of factors. The Fisheries Act would have no obligation to apply nor enforce a ban that the NLC put forward unless that has been legislated in parliament.

Yes, it would be good to get your thoughts on where it is all at and where it is likely to head. You are probably better informed than most of the keyboard warriors here, most definitely myself included.

Dan
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Post by ronje »

Sure Dan

My thoughts on how this all hangs together.

I guess the real starting point is this Commonwealth Act....... Northern Territory (Administration) Act ranging from 1910 to 1978. Being a territory of the Commonwealth, the Commonwealth Govt had responsibility which it delegated to the South Australian Govt for many years.

That all changed when the Whitlam govt was elected in 1972 with its agenda of social reforms.

In 1976, the Whitlam Commonwealth Govt introduced the Aboriginal Land Rights (Northern Territory) Act which became the centrepiece of later legislative disputes. It hadn't been passed by the Senate when Whitlam was sacked. The incoming Fraser Govt didn't like certain aspects of the ALR(NT) Act and amended it.

One particular amendment was the change to the mandated buffer zone in waters adjacent to aboriginal land. Whitlams plan was for a buffer zone of something like 6-8km (alzheimers coming in here) and Fraser reduced that to 2 km, made it optional rather than mandatory BUT left it to the NT Govt to decide if/when to introduce the option.

In the Northern Territory (Self Government) Act of 1978, day to day legislative powers of the Commonwealth were delegated to the NT Legislative Assemby.

However certain powers were retained by the Commonwealth and not delegated. Aboriginal land rights was one of them along with industrial relations and 1 or 2 others.

The NT's Aboriginal Land Act was introduced to complement the Commonwealth's ALR(NT) Act 1976 and went further to empower Land Councils to issue permits etc. In addition, it allowed for introduction of the closed water buffer zones by the NT Govt. Part 111 of the Act deals with control of entry onto seas adjacent to aboriginal land.

Hence the importance of the Blue Mud Bay bunfight about exactly what was aboriginal land.

In the definitions within the NT Aboriginal Land Act, the references are all directed back to the Commonwealth's ALR(NT) Act.

I believe that is to ensure that there would be minimum chance of inconsistency between the Commonwealth's Act and the NT's Act.

If an inconsistency arose, then the Commonwealth's Act would prevail over the NT's Act to the extent of the inconsistency. (that provision exists in the Aus Constitution Act and was the mechanism used to defeat the NT's Euthanasia legislation a couple of years ago).

I don't know if the NT Govt ever declared the 2km closed water buffer zones as they would have had the effect of extending the no-go areas (for the want of a better term to explain it) for another 2km past the low-water mark of the inter-tidal waters boundaries. I think that the NT Govt at the time felt that it had enough troubles on its plate anyway and didn't want to look for more.

I suspect that the declaration hasn't been made as the 2km buffer zone didn't figure prominently in the Blue Mud Bay deliberations.

So that's basically the relationship between the Commonwealth and the NT Govt's legislation wrt TO rights etc.

The NT Aboriginal Land Act also introduced the powers of the Land Councils etc.

In respect of the proposition that NT Fisheries Act commercial licences authorised fishing in those inter-tidal waters, that was simply an exercise in futility as the licences didn't give right of entry to carry out fishing activities. Even if they had, there would have been an inconsistency between the Commonwealth's ALR(NT) Act and the NT Fisheries Act and the Commonwealth Act would have prevailed. That question never got that far anyway.

I believe that Land Councils could issue entry permits to commercial fishermen should they wish to allow netting in their inter-tidal waters. They've done it with fishing lodges and other activities. I'd suggest that any existing contracts with lodges would have a clause somewhere which would limit the Council's ability to have other fishing activities running concurrently.

To be honest, I was surprised that the NT Govt tried it on with the Fisheries Act but put it down as a PR exercise to maintain faith with the commercial seafood industry (but an expensive PR try-on).
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Re: Check this!

Post by STOKESY77 »

Latest update!
Statement going in this Saturday's paper saying that the permit system will not come into effect until after 30 June 2017.
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Re: Check this!

Post by ronje »

Check out the NLC Sea Country Access Map for the area/s with red diagonal lines.

This/these are the 2 km buffer zones I was talking about and they must have been declared by the Administrator under the Aboriginal Land Act (section 12).

The Administrator can declare them under S12 and also "un-declare" them in S 13.

http://www.austlii.edu.au/au/legis/nt/c ... ct/ala126/

These are called "Closed Sea" declarations and appear to only have been declared in respect of a couple of isolated places.

None of the more popular areas have "closed sea" declarations associated with them (yet) but remain as a mechanism to wind up public pressure on the Govt should it be reluctant to accommodate NLC negotiations.
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Re: Check this!

Post by Matt Flynn »

Yes, we can probably expect some fluidity with this matter, there will be negotiations behind the scenes that might lead to altered outcomes.
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Re: Check this!

Post by ronje »

A word of caution that I think is timely as we're talking about inter-tidal water etc. There's also a thread where Nomad was trying to set a couple of guys straight about rangers with not a lot of success. The main thinking seemed to be that only coppers can seek your I/d. That's not so and you'd be surprised at just how many people actually can.

I can also recall that there are/some provisions in various Acts that I was involved in where if it was believed that it'd be a waste of time pursuing the offender by infringement notice or summons ( say refusal to provide I/d), the person could be arrested and taken before a magistrate to sort out. Don't know if those sorts of provisions exist in NT law. One way for somebody to find out, I guess.

Obviously the water police can't be everywhere.

Local TO rangers would be the most likely people you'd come across particularly in remote areas.

People may be tempted to ignore them/refuse to answer some questions should they be approached by local rangers.

These guys are mostly delegated as Fisheries Officers under the Fisheries Act and have powers accordingly including the power to ask for I/d. I don't know if those delegations are restricted to aboriginal land and waterways or general in scope.

The Lands Act reserves the right of the Land Council to lay a complaint under that Act but these rangers will most certainly have the powers to act unilaterally in respect of the Fisheries Act. Refusing to "produce I/d forthwith" most likely will result in an offence.
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Ronje
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Re: Check this!

Post by Jer »

ronje wrote:These guys are mostly delegated as Fisheries Officers under the Fisheries Act and have powers accordingly including the power to ask for I/d. I don't know if those delegations are restricted to aboriginal land and waterways or general in scope.

The Lands Act reserves the right of the Land Council to lay a complaint under that Act but these rangers will most certainly have the powers to act unilaterally in respect of the Fisheries Act. Refusing to "produce I/d forthwith" most likely will result in an offence.

I'm keen to find where/which Act defines this. For my own sake.

So far I've found in the Fisheries Act, Section 7 that says:
http://www.austlii.edu.au/au/legis/nt/consol_act/fa110 wrote:Fisheries Officers
(1) The Minister may appoint such persons as the Minister thinks fit to be Fisheries Officers.

(2) The Director is a Fisheries Officer.

(3) Every member of the Police Force of the Northern Territory is deemed to be a Fisheries Officer.

(4) A Fisheries Officer who is carrying out functions and duties under this Act has, in addition to the other powers conferred on a Fisheries Officer under this Act, all the powers and protection of a member of the Police Force with the rank of constable.

(5) A reference in any law in force in the Territory to a member of the Police Force with the rank of constable, or a reference that includes such a reference, includes a reference to a Fisheries Officer acting in the execution of the Officer's duty.

So would the Minister have had to appoint each group of Rangers as Fisheries Offices? And if so, where would it be stated so?

I continue to search...
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Re: Check this!

Post by ronje »

Sure Jer

Here's the actual authority to delegate powers under the Fisheries Act. It's S6. You were close with s7.

http://www.austlii.edu.au/au/legis/nt/c ... 10/s6.html

Notice that the delegation must be by written instrument and an identity card signed by the Director must be issued to the person. What they usually do is put the delegations in respect of which sections of the Act on the card. In this case the delegation may simply be as a Fisheries Officer and then wherever the term appears in the Act, the delegates name also applies. There may be restrictions on their Fisheries Officers powers eg places but that will appear in the instrument also.

There are also requirements contained in the Fisheries Act on when the I/d card must be produced and the requirement is imperative (shall) and not optional. As police are deemed to be fisheries Officers, they need to produce evidence that they're police officers (uniform or police I/d). Saves them carrying around numbers of I/d cards for the different Acts they operate under.

The reservation that only Land Councils can authorise a complaint is in the Aboriginal Land Act.

http://www.austlii.edu.au/au/legis/nt/c ... 6/s21.html

The Land Council can authorise a person ( a ranger for example) to make a complaint. A delegation of its authority you might say.

If exercising powers under the Fisheries Act (if he/she has been appointed), a ranger can ask for identification and its an offence if its not given.

Under the Aboriginal Land Act only a police officer can ask for identification and its an offence not to give it. If its simply a case of trespass on inter-tidal waters or the 2km buffer zone from the low water mark (if its been declared by the NT Administrator) then a ranger cannot ask for I/d. Only a police officer can.

If I was such a Ranger I'd first state that I was asking under Fisheries Act powers for an I/d. Once the fisheries matters were sorted out, THEN I'd ask about the trespass (having already obtained I/d). If ignored, the option would be open to me lay a complaint (if authorised by the Land Council).

There are more ways to kill a cat than by sticking butter up its bum with a hot fork.

Sometimes there's a requirement that a written instrument must be published in the NT Gazette. If not stated in the Act itself on how its to be carried out then it may be in the NT Interpretation Act. It may very well be a instrument relating to a class of persons eg " persons appointed/authorised as Rangers" in very simple terms.

In fact that's how its done in the NT.

Here's the Interpretation Act NT on the subject http://www.austlii.edu.au/au/legis/nt/c ... /s46a.html

If you look up that particular Act its extensive on the different interpretations to be placed on ALL NT legislation.


S32 (6) http://www.austlii.edu.au/au/legis/nt/c ... 0/s32.html
Regards
Ronje
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