Permit system likely delayed

Talk about bungled boat ramps, net buybacks, marine no-go zones, mining disasters etc here.
NinjaFish
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Re: Permit system likely delayed

Post by NinjaFish »

Seems there's more to this delay!
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Jer
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Re: Permit system likely delayed

Post by Jer »

the NLC have released their 2017/2018 annual report. a good bit of reading if anyone is interested to know just what the NLC are doing with the income they receive/manage on behalf of TOs. all while expecting the NTG/fishos to be paying out even more money.

https://www.nlc.org.au/uploads/pdfs/108 ... dQS-mpfDD0
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Re: Permit system likely delayed

Post by ronje »

Interesting read, Jer.

Note the history of the negotiations regarding access for rec fishermen. A few changes of mind it seems with the latest one being a new access system via permits.

There will be conditions attached to a permit. Don't be surprised if boat identification is one of them to make it workable. Boat identification via a method acceptable to the NLC.

No acceptable vessel identification -- no access permit. NTG might have no choice but to go along with that if the NLC has it in the negotiations agenda. Acceptable vessel identification = vessel registration by NTG (unless somebody can think of a better way).

Sea Country working group is talking about more than inter-tidal zones but I can't see any definition of what "Sea Country" actually is.

Remember that Gough Whitlam had buffer zones extending out from the low water mark inter tidal zone by a further 2 km. When Malcolm Fraser put Gough's ALR Act 1977 through, he dropped off the 2 km buffer zones.

Maybe that's what "Sea Country" refers to. Get the buffer zones back (maybe change the width).

What's AFANT saying?
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Jer
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Re: Permit system likely delayed

Post by Jer »

Boat rego will definitely be coming in, it might not be immediate but it will come. If sufficient evidence is provided to NT Police/NT Fisheries/NTG of people attempting to avoid Aboriginal/Fisheries Rangers inspecting their boat/permit, there will be pressure on NTG/NT Police to introduce measures of identification from a distance.

In the latest information regarding the NTG's $10m offer, there was a mention of the NLC waiting 50% ownership of the commercial mackerel fishing licenses. I suspect this plus other commercial fishing licenses other than those operated within inter-tidal zones would be what the Sea Country group are referring to, for example jew fish licenses.

Wasn't the "buffer" nominated to be 10 km (or nm) but the brought back to 2 km (or nm) as a more reasonable number? And that figure being an exclusion zone that can be enacted through the ALRA or Native Title Act at the discretion of the TO?

Edit: I don't think AFANT has made a comment in regards to decisions outside of the inter-tidal zone or commercial fishing licenses. At this point, from what I've read of their comments, their focus is on recreational fishing in the inter-tidal zone only.
ronje
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Re: Permit system likely delayed

Post by ronje »

Wasn't the "buffer" nominated to be 10 km (or nm) but the brought back to 2 km (or nm) as a more reasonable number? And that figure being an exclusion zone that can be enacted through the ALRA or Native Title Act at the discretion of the TO?

You're partly right., Jer.

It's contained in the complementary NT Aboriginal Land Act of 1992.

Part III
Control of entry onto seas adjoining Aboriginal land

S12
The Administrator may, by notice in the Gazette, close the seas adjoining and within 2 kilometres of Aboriginal land to any persons or classes of person, or for any purpose other than to Aboriginals who are entitled by Aboriginal tradition to enter and use those seas and who enter and use those seas in accordance with Aboriginal tradition.


This was before the High Court Blue Mud Bay decision so the 2 km was measured from the high tide mark (not the low water mark).

If the NT Administrator had enacted the 2 km zone provision it would have to be posted in the NT Govt Gazette along with geographical information and a map. I don't know if it has been enacted anywhere so I guess that's the first thing to check (NT Gazette).

Now that the Blue Mud Bay decision has extended ownership out to the low water mark, any buffer zone of 2 km has to be measured from there.

The Administrator (NT "Governor") may declare the zone without reference to NT Govt if he/she wishes. Probably would consult but the proposal doesn't have to come from Govt. NLC could propose it directl.

At this point, from what I've read of their comments, their focus is on recreational fishing in the inter-tidal zone only.

An extra 2 km added to the inter-tidal zone might wake them up.

Can of worms?
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Re: Permit system likely delayed

Post by Matt Flynn »

It is when they can't measure the low water mark accurately.
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Re: Permit system likely delayed

Post by ronje »

Contrary to what a lot believe, a baseline for measuring low water mark already exists, Matt.

Its contained in the Commonwealth Seas and Submerged Lands Act 1973.

The CSSLA 1973 adopts the baseline definition contained in the of the United Nations Convention on the Law of the Sea.

Article 5
Normal baseline
Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.

Have a look at officially recognised maritime navigation charts (those produced by the Aus Hydrographic Service and marked AUS charts)..

Just to clear the confusion, the low water datum on these charts is LAT (Lowest Astronomical Tide).

They show the baseline from which all distances seaward are measured (economic zones, contiguous zones, territorial waters etc).

So 2 km from the low water mark on those charts is easy to measure and thus pinpoint by lat/long.

The key issue now is " Has any administrator made the gazettal declaration since 1992?"

Anyway, 2 km from the high water mark is a long way further than any inter-tidal zone. A long way.

The NT Chief Minister has already referred to C'wealth waters being involved in the bunfight.

THAT should have sounded some warning bells for AFANT that there's more than simply inter-tidal waters being talked about.
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Re: Permit system likely delayed

Post by cnd1963 »

If a fencing dispute is resolved in court on my 5 acre block, it doesn't automatically mean it applies to every rural block in N.T. The federal judges under NT law went to Blue Mud Bay, to observe the locals fishing and lifestyle and history and quite rightly gave the judgement for Blue Mud Bay Only! Any other councils would have to take there cases to court to be decided on there own merit! when the decision was announced everyone in media pounced saying this applies to all NT, apart from ABC who conferred that this was a precedent only, for a few weeks then they too, went quiet when they realised it was in there biased best interest. Do you think Federal Judges would go down to Wooliana public boat ramp or shady camp ramp and say the locals are fishing here and have been for years so will turn over rights to water access. I don't think so! that's why there are so many land rights cases in court because they all have to be judged separately on there own merit! The NLC are pressurising a weak, and or, sympathetic Labour Government after 10 years of misinformation. I am sick of hearing of the Blue Mud Bay decision affecting the whole of NT, it shouldn't. NT Government and NLC discussions are secretive because they are illegal, don't include AFANT, or commercials. they are tying to pull the wool over everyone`s eyes thinking that the public has accepted Blue Mud Bay rules NT. This weak NT Government should be hiring lawyers to defend rights of access, not to give all away in one block!
ronje
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Re: Permit system likely delayed

Post by ronje »

Fair enough. You're thinking about it which is good.

Those High Court judges didn't all agree either. It was a majority decision.

You're right about the NLC putting pressure on.

The Blue Mud Bay decision was indeed a precedent. It was a precedent-setting interpretation of the law and therefore the interpretation that was to be applied to all similar cases.

The mainstream media and the ABC were both right.

The mainstream media was right about the ruling applying to aboriginal land rights across all of the NT. The ABC merely gave the reason why (the rule of precedence). The rule of precedence arises to avoid having to test each and every claim. Having to re-invent the legal wheel each time parties fall out about interpretation.

As the intention of the 1977 Land Rights Act was unclear the NLC wanted to impose its interpretation. The NT fishos (commercial and rec) wanted to impose their particular interpretation and the NT Govt said theirs was the way to go.

In the end the highest court in Aus (full bench of the High Court) was asked to make a ruling.

It did and found in favour of the NLC. That then set a precedent to be applied if any other similar cases were brought before it. THAT'S why it applies to ALL of the NT under similar circumstances.

The ALR (NT) Act of 1977 is C'wealth law and over-rides any Territory/State law where an inconsistency between the two arises (but only to the extent of the inconsistency).

The High Court judges didn't have to decide about what activities the TOs got up to on their land. Those activities had already been sorted out under the ALR (NT) Act.

The High Court judges only had to decide the water boundaries of the land which the TO's had already been granted ownership of.

The decision to be made was whether the boundary was the high tide mark or the low tide mark.

The High Court decision was the low tide mark and therefore included waters in the inter-tidal zone. So if somebody wanted to enter that inter-tidal zone, they needed to seek permission of the owners (or their agent - the NLC). Hence the permit system.

The NT administrator(equivalent of a state governor) has always had the option to impose a buffer zone of 2 km extra by closing the waters for a further 2 km seawards from the baseline boundary.

Not wanting to get offside with the NLC in case that resulted in no permits for rec fishing being issued, the NT Govt has been playing ducks and drakes in negotiating with the NLC about a proper permit system. The current system was only meant to be temporary.

Now the NLC is "upping the ante" to get the NT Govt to the negotiating table. The NT Govt has gotten itself between a rock (the NLC) and a hard place (commercial and rec fishos) by attempting to stall.

The NLC is poised (they say) to close ALL access to its waters NT wide. Apparently 85% of NT coastline. Throw in the 2km buffer zones if they decide to add more pressure by demading that they be introduced by the NT administrator, and everybody is poised with a bucket of eggs and a big stick. Omlette or a mess?

I'd have thought that NT rec fishos need to be involved in what's going on. Hoping that AFANT is across ALL of this might not be in the interests of rec fishing. Making sure that they are would be smart. They're not saying much about these game-changing events.

Anyway, this mess is really for territorians to work out. I think I said that before so I won't go on about it publicly any more.
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Ronje
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Re: Permit system likely delayed

Post by mickkk »

Whilst we are thinking creatively ronje. If I owned land, there in nothing from stopping someone hovering over it or traveling above it in a craft or chopper. I only own the land.
If the blue mud bay have simply said the boarder of your property is at the low tide mark. Then I think it would be reasonable to say we couldn’t go walking around at low tide on their land. But if we are not setting foot on their land, then how can we be trespassing?
How can someone own the water that passes in and out of their land. How can someone own the animals that pass through their land.
Station owners around Australia are very restricted on what can and can not be done with water that passes through their land, and often have to buy that water if they would like to use it to make money out of.
I have native wildlife migrating in and out of my block, but I do not own these animals. I can not sell these animals.
Or is it just simply that we are going back to the bad old days of segregation, and ifyou have this colour skin these are the laws for you. But if your skin is that colour then you get to have these other laws.
Last question. If gender is legally “fluid”, why can race not be legally fluid. If all Australians started identifying as indigenous (I believe I would qualify as much as most urban aboriginals, I was born here just like them) would the laws make sense.
ronje
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Re: Permit system likely delayed

Post by ronje »

Mick

If a Commonwealth law says that you own the water that periodically covers parts of your land, then you do indeed own it irrespective if a State law says that you don't. The origin of that is in the Aus Constitution where a C'wealth law prevails over any State law in the case of an inconsistency between the two.

The Blue Mud Bay bunfight came about because the TOs at BMB didn't believe that the NT Govt could issue fishing licences allowing licensed fishermen to enter upon their land irrespective of the reason. The TOs claimed that the Commonwealth's Aboriginal Land Rights (NT) Act of 1976 gave them the exclusive right to control access to their land.

The NT Govt, the Fisheries Dept and NT Seafood Council claimed otherwise in that their NT Fisheries Act gave the NT Govt the right to allow access to the water providing nobody actually set foot on land.

So it needed to be sorted out legally with the principal contention being ownership of the water that periodically covered some of the aboriginal land (the inter-tidal zone).

The full bench (5 judges) found in favour of the TOs in 2008. It wasn't unanimous but a majority view so the finding stands.

So TOs (or their agent- NLC) can legally control access to their land including the inter-tidal zone and do so via a permit system.

The old common law right to fish anywhere in the NT became redundant the minute the NT Govt introduced the NT Fisheries Act years ago. Similarly for all other states the minute they introduced their fisheries management acts.

It was in the ALR(NT) Act 1976 also allowed the NT Govt to legislate about those 2 km buffer zones. So an extra 2 KM of closed waters can be thrown into the mix by the NT Govt providing that it complies with the ALR(NT) Act. I originally believed that the NT Administrator (equivalent of a state governor) could do it but now believe that the question is for the NT legislative assembly to recommend such a law to the administrator.

NLC permits simply authorise access for a particular purpose. Their access applications should have a reason acceptable to the TOs included.

You'll note in the ALR(NT) Act doesn't prevent permissions to be issued to a "class of persons" generally. THAT gives rise to a class of people eg "persons wanting to engage in recreational fishing activities in the inter-tidal zone" being eligible for a "class permit". A universal permit. Makes more sense than the cumbersome workload associated with individual permits.

There could/may/would be a fee (possibly annual) to enter and fish inter-tidal zones. Or free access (what do you reckon would be the chances of that?).

Or there could be no access at all if they get bl..dy-minded about it. Depends how the NT Govt handles it and that doesn't appear to be very well to date.

The short answer is (in view anyway) that the C'wealth law prevails over ANY state law and particularly so if the High Court has made a decision about any apparent inconsistencies.

The Blue Mud Bay decision settled one apparent inconsistency. There'll be others involving aboriginal land not necessarily associated with fishing.
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Ronje
mickkk
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Re: Permit system likely delayed

Post by mickkk »

Cheers for the reply and taking the time to share your knowledge on this.
ronje
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Re: Permit system likely delayed

Post by ronje »

No worries Mick
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Re: Permit system likely delayed

Post by theodosius »

6 month extension
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