The coast of the Northern Territory in Australia boasts some of the world’s best fishing and hosts a lucrative commercial fishing industry. The Northern Territory is also home to over 50,000 Aboriginal people who rely on these waters for their subsistence and livelihood. However, the Aboriginal population is effectively barred from participating in the commercial fishing industry by Territory regulations and economic disadvantage. In July 2008, ten years of litigation over access to coastal waters adjoining Aboriginal land in the Northern Territory culminated with the High Court’s decision in Northern Territory of Australia v. Arnhem Land Aboriginal Trust. The High Court recognized that the Aboriginal landowners had estates in fee simple to the tidal waters adjoining their land. While the High Court recognized the boundaries of Aboriginal lands extend over intertidal land, it did not analyze the potential conflict between property interests of the Aboriginal landowners and those rights conferred by a fishing license. This limitation was partially based on the Court’s ruling that a license issued under the Northern Territory’s Fisheries Act, without more, does not grant permission to enter and take fish from the Aboriginal intertidal waters. However, the decision left open the possibility that the Northern Territory could enact new legislation or amend the Fishing Act in order to augment the Territory’s authority to regulate in the granted intertidal waters. This comment argues that unless the Northern Territory acts in accordance with Aboriginal best interests and in cooperation with Aboriginal landowners, such future legislation would likely conflict with Commonwealth law enacted for the benefit of the Aboriginal population.
Heather A. Coldwell,
Fee Simple Estate and Footholds in Fishing: The Australian High Court's Formalistic Interpretation of the Aboriginal Land Rights Act,
19 Pac. Rim L & Pol'y J.
Available at: https://digitalcommons.law.uw.edu/wilj/vol19/iss2/4