Bathurst permits

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bring_it_on
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Re: Bathurst permits

Post by bring_it_on »

Hey …can anyone decipher discos link in layman's terms???


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dannett
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Re: Bathurst permits

Post by dannett »

bring_it_on wrote:Hey …can anyone decipher discos link in layman's terms???
I only had a quick glance through but what I took from it.......

The NT Government made an appeal which they partly won, though in doing so they were responsible for all legal costs.

The NT Government put forward a case that the respondents failed to argue coherently against.

Part of the defence argument was based upon the definition of Billabongs. "The first three respondents submitted that nobody had ever denied that a billabong was part of Aboriginal land, and suggested that the same must be true of land down to low water mark when covered by water. The appeal is not about billabongs, and billabongs are not waters of the sea. Arguments about whether the expression "Aboriginal land" extends to, or has consequences for rights in, the waters covering land between low water mark and high water mark are entirely immaterial to any controversies about billabongs, which, in the unlikely event of their ever arising, can be resolved in litigation directed to their resolution."

The government won the argument that "the grant of "land" down to the low water mark granted the soil, not the tidal waters which covered the area from high water mark to low water mark, and that only the soil was Aboriginal land. That is so for the following reasons." Because "
Ordinary meaning of "land". First, "land" ordinarily means the solid portion of the earth's surface and, in the case of land extending to low water mark, does not include the waters flooding over it and ebbing from it with the tides
"

There was nothing in the act that indicated a different definition of "Land" had been used which included water and therefore a claim to that water is not valid.

This is the final Order from the court (line 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.

Basically, under the current definition of "land" only the soil below the water in the tidal zone can be considered Aboriginal Land, not the water. Only a change int he definition of the word "land" or an amendment to the act to include water would prohibit access to "intertidal waters." This is basically what the judge is stating in his conclusion (lines 160 & line 161). I split up line 161 below because it is pretty interesting and almost in plain English.

The judge has said that Aboriginal people are not the only people to consider fishing a tradition, and therefore it would be wrong to suggest non-aboriginal people should not be allowed to fish too.

"It is not necessary to determine the question whether persons have a right to fish in open waters by reason of the ancient public right, or because of the common law principle that a person is free to do anything, subject only to the provisions of the law[216].One such provision, where a person is not an Aboriginal exercising a traditional right to fish[217] or a person taking fish for their subsistence or personal use,[218] requires that a licence be obtained under the Fisheries Act[219]." The judge has said that Aboriginal people are not the only people to consider fishing a tradition, and therefore it would be wrong to suggest non-aboriginal people should not be allowed to fish too.

"That Act does not provide for permission to fish in particular areas and is of limited relevance to the issues on the appeal. " - There is nothing in the act that excludes fishing access.

"The terms of a licence under the Fisheries Act may exclude fishing in certain areas, notably areas the subject of fishing management plans[220]. There is no suggestion that the tidal zones in question are subject to such plans." - Self-explanatory.

"A person taking fish in compliance with the terms of the Act, or a licence issued under it, is entitled to do so in the intertidal zones in question, in the absence of an exclusion effected under the Aboriginal Land Act. " - You are free to fish where you want as long as you comply with the law and the land claim has no effect on this provision.

And the final most important sentence "The Land Trust does not have the right to exclude the public from that use."

But then, I am not a lawyer. :D
disco
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Re: Bathurst permits

Post by disco »

Neither am I.
"A person taking fish in compliance with the terms of the Act, or a licence issued under it, is entitled to do so in the intertidal zones in question, in the absence of an exclusion effected under the Aboriginal Land Act. " - You are free to fish where you want as long as you comply with the law and the land claim has no effect on this provision.

And the final most important sentence "The Land Trust does not have the right to exclude the public from that use."
Yes, except the part that says ...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.

So they are saying that the Aboriginal Land Act is what excludes us from fishing in the intertidal zone.

I think the two key parts are

156. Sections 73(1)(d) and 74A(1) are the only provisions in the Land Rights Act which refer to sea waters or to fishing. Section 73(1)(d) draws a clear distinction between Aboriginal land and waters of the sea. This distinction was adverted to in Risk[210], in connection with the question whether the words "land in the Northern Territory" include the seabed. It was held that it did not. McHugh J observed that s 73(1)(d) operates upon the assumption that the "waters of the sea" are not Aboriginal land within the meaning of s 3 of the Act and therefore not the subject of an application under s 50[211]. Callinan J was also of the view that the reference to land in the Act did not include the sea[212]. This accords with the treatment elsewhere in the Act of Aboriginal land as land in the ordinary sense of the term.

and

It is unlikely that the legislation enacted pursuant to s 73(1)(d) was not intended to apply to waters over intertidal zones. One regime is likely to have been intended with respect to all waters of the sea. This was the view expressed by Mansfield J in Arnhemland Aboriginal Land Trust v Director of Fisheries (NT)[215].

In my totally unqualified opinion the issue was never the definition of "land" but rather "waters of the sea". Which I think explains why the judge found the way he did. Hard to make an argument that water that is tidal is truly "waters of the sea" rather than part of the land. Same goes for rivers that never dry out, again pretty hard to call them "rivers of the sea".

But yeah, all pretty hard to read.
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dannett
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Re: Bathurst permits

Post by dannett »

I think you are correct Disco and I skipped over it because that is not the imediate result which I think was asked.
But yes, the real issue is the definition of thoes terms is.
What I take out of it is 'you can't take away access yet, unless you can agree, that the definition of these terms is also intended to cover waters of certain types.'

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disco
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Re: Bathurst permits

Post by disco »

Well, the way that I read it is that they can exclude access. It is just that it is not the Land Trust that has the power to do so, it is the Aboriginal Land Act.

Again, I'm unsure.
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dannett
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Re: Bathurst permits

Post by dannett »

disco wrote:Well, the way that I read it is that they can exclude access. It is just that it is not the Land Trust that has the power to do so, it is the Aboriginal Land Act.

Again, I'm unsure.
Me too.
"A person taking fish in compliance with the terms of the Act, or a licence issued under it, is entitled to do so in the intertidal zones in question, in the absence of an exclusion effected under the Aboriginal Land Act. "
disco wrote:So they are saying that the Aboriginal Land Act is what excludes us from fishing in the intertidal zone.
How I understand is the Land Trust can not create an exclusion because it is not tied to the provisions within the Aboriginal Land Act to do so.
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dannett
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Re: Bathurst permits

Post by dannett »

Sounds like the three acts still need to be tied together.

The Aboriginal Land Act needs to correctly set out what constitutes a tidal exclusion zone and make a provision for a Land Trust to do so. The Land Trust then needs to define the area and the type of exclusion allowed under the Aboriginal Land Act. Then the Fisheries Act needs to recognise these exclusion zones to make it law.
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Re: Bathurst permits

Post by Scotty69 »

Three governing bodies working together........................that'll never happen.
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Re: Bathurst permits

Post by disco »

Even if that did happen, it would likely bring us back to where we are now.

I would be more interested in knowing
a) what the penalties are
b) who can enforce them

I mean a trip from nightcliff boat ramp to tiwi islands is already undertaken by fairly wealthy people, who can afford a boat that can comfortably make it there and back. Or big enough to sleep on. Anyway, say you get a $500 fine once every four times you go... that means your trips cost $125 more. I'd estimate in fuel, tackle, general boat costs, it would be at least $500 a trip anyway (probably twice that)... but are you really stopping people at $625 a trip? An extra 20% or an extra 10%?

I just think that unless the fines are utterly severe, or criminal, or you lose your boat... then you are preventing good law abiding people who want to respect indigenous land from going. But not discouraging the wealthy who are just going to treat the law as an expense they can afford.
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Re: Bathurst permits

Post by nomad »

Having a law and being able to enforce it are 2 different things. Years ago in nsw, they introduced laws and had enforcement officers to push it.
Unfortunately, when they drafted the law, there was no obligation for anyone to answer any questions truthfully so many of the answers resulted in heaps of ‘Michael Mouse’ (ie mickey Mouse) Donald Duck answers given to the question of what is your full name?

We were in the Apsley st years ago (with permits etc) and the water police called in on everyone. They checked our safety gear, fish catch etc etc. when asked if they wanted to see our permits, they replied that they had no interest or jurisdiction for the permits. (that may have changed now)
There is no boat rego here atm so it would be impossible for anyone to get accurate details if they were to check on permits.
I can imagine heaps of false names and addresses given if anyone checked/inspected
I would be interested to know if the water police currently had the authorised power to check permits.
Re getting several fines, that wouldn’t happen. You would get one, maybe two infringement notices and after that you would end up in court to answer any charges
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