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Landmark case grants traditional owners tidal -

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Landmark case grants traditional owners tidal rights

The World Today - Wednesday, 30 July , 2008 12:10:00

Reporter: Sarah Hawke

ELEANOR HALL: The High Court this morning handed down one of its most significant judgements on
Indigenous land rights in the Northern Territory. It has dismissed the Northern Territory
Government's objections and confirmed that traditional owners do have exclusive rights over tidal
waters along about 80 per cent of the Northern Territory's coastline as well as in tidal rivers.

The decision is likely to lead to the introduction of a permit system for fisherman and for
Indigenous people it ends a 30-year court battle. Sarah Hawke has been following the case and joins
us in Darwin.

So Sarah what does this decision mean non-Indigenous people wanting to use these tidal waters?

SARAH HAWKE: Well basically in the past we've seen that fishing rights have overridden the rights
of traditional owners who own these waters anyhow. Basically that reverses that process in now that
traditional owners will have a say and decisions, or I guess, hold the decisions over who has
access to these waters. Now these are tidal waters which as you mentioned along 80 per cent of the
coastline as well - as some of the tidal rivers as well.

ELEANOR HALL: Are Indigenous people giving any indication that they will be objecting to any
activities that are now carried on in these tidal areas?

SARAH HAWKE: Well certainly the indications from today's press conference is that they really do
want to work with both commercial and recreational fishing operators to give them access. We are
likely to see the introduction of a permit system. Now how much that will be worth we're not too

Part of this process we will see a 12-month amnesty as well, so therefore the access will continue
as is at present as they figure out the final details of this.

ELEANOR HALL: Now this decision gives Indigenous people exclusive rights, this is different to what
we see under native title. Why are these rights more extensive?

SARAH HAWKE: Well basically, as traditional owners they will have a say on who can come and go
within these waters. Now when we say that I think the Northern Land Council is trying to ensure
that people shouldn't be frightened by this, that they will be excluded from these waters.

They are working on a process to try and ensure that there will be continuing access, however, they
will have a stronger say on that actual process.

ELEANOR HALL: Is this case likely to set any precedents for other land claims across Australia?

SARAH HAWKE: It won't for the rest of Australia simply because it falls under the Northern
Territory Land Rights Act which was introduced in 1976. So that's separate again; and of course
that particular act covers about half of the Northern Territory anyhow. So, no, won't have any
impacts there for the wider scheme.

ELEANOR HALL: Now this is a very long running case. Why did the traditional owners originally bring

SARAH HAWKE: Well look the actually process to try and gain exclusive rights over waters, has been
going on for about 30 years. We've seen several cases over that time. One that comes to mind is
Croker Island trying to allow exclusive rights there. That was rejected.

This particular one in regards to Blue Mud Bay just around Arnhem Land, it was introduced in 2002
and has actually been quite a full on case over that time. The Federal Court last year ruled that
in fact those exclusive rights should be recognised, and of course that was upheld in the High
Court today; which was welcomed by traditional owners including Jambalwa Morawille.

JAMBALWA MORAWILLE: We had rights since 2000 years ago. Today it's been, it's been given to us in
the eyes of most Australian people, ..(inaudible). The country, it's almost for everybody. The sea
and the land. We can take care, we can look after the land and we can look after the sea. So we're
not letting white people down; but we are almost be one to look after the land and the sea.

JOURNALIST I: Do commercial fisherman have anything to fear by this decision?

JAMBALWA MORAWILLE: Fisherman, they are allowed to come to fish around in our country, but through
the permit and through the right communication.

JOURNALIST II: So a similar permit system to what we see on the land?

JAMBALWA MORAWILLE: Yes similar, similar system.

JOURNALIST III: Is this an economic opportunity for your people?

JAMBALWA MORAWILLE: It is and economic opportunity for our communities right across the country.

JOURNALIST IV: Did you expect to win today?

JAMBALWA MORAWILLE: Well, I was expecting to win this case. It was almost for 20 years now. Thirty
or 40 years now.

JOURNALSIT V: How will this affect people on the ground? What does this mean for people on the

JAMBALWA MORAWILLE: The ground, it's really important to us. The country and the sea it's like a
human being. Those people who hate(phonetic) it and been living in that country.

ELEANOR HALL: That's Jambalwa Morawille, a elder from Blue Mud Bay speaking after that decision.

Now, Sarah, the Northern Territory Government opposed this case. This decision against the
Government comes at a tricky time for them, right in the middle of an election campaign; how have
they reacted?

SARAH HAWKE: Well look we're still to hear from them as yet, while they consider the decision. I
mean they probably already have their own thoughts given that they have fought the case for so
long. The problem with them is they do need to speak with the Opposition leader about this, given
that they are in caretaker government mode.

The interesting point with all this too is that the fishing, particularly the recreational fishing
group up here is a very strong lobbying group and quite influential when it come to issues such as
elections. So that will be interesting just to see how that comes out today.

Certainly the Opposition leader will have something to say when they launch the Country Liberals
election campaign in about half an hour's time. With the Chief Minister Paul Henderson expected to
respond a little bit later on.

ELEANOR HALL: So what's been the reaction from commercial fishermen?

SARAH HAWKE: Well commercial fisherman at this stage, likewise still assessing how that will fit in
and where, what it actually means as far as their access and whether or not they're working with
Indigenous groups when it comes to commercial operations.

So that will also still to play out and we're also, but certainly the recreational fisherman who've
been lobbying and certainly didn't want this case to succeed, they were actually not surprised by
this morning's decision as explain by Chris Makepeace.

CHRIS MAKEPEACE: Recreational fishing in the Territory is very important lifestyle activity.
Recreational fishing is really considered to be one of those sort of, almost, you know, rights that
we have and I think one of the things that is disappointing about the decision of the High Court is
it's effectively said that the public right to fish and navigate has been abrogated by both the
Aboriginal Land Rights Act and almost ironically by the Northern Territory Fisheries Act which is
you know a real problem.

These rights have existed for Anglo Saxon-based government systems since prior to Magna Carta and
so we suddenly find ourselves in the Northern Territory in a situation where that doesn't apply.

SARAH HAWKE: What about, what the way forward for access? What is going to happen from here on in,
from the amateur fisherman's point of view?

CHRIS MAKEPEACE: I mean, basically, now what this faces us with is a situation where we're going to
have to try and arrange some sort of a settlement with Indigenous interests as to how we may go
about doing that. Whether it's a continuation of the current temporary permit scheme or whether
there's some other system that's put into place that allows us to continue the sort of access that
we've got.

I'm heartened by the media release by the Northern Land Council today which indicates they too
realise that we have to find some sort of a way forward with this.

ELEANOR HALL: That's Chris Makepeace from the Northern Territory Amateur Fisherman's Association
speaking to Sarah Hawke about that High Court decision.