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Tidal rights decision, 'extraordinarily signi -

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Tidal rights decision, 'extraordinarily significant': academic

The World Today - Wednesday, 30 July , 2008 12:15:00

Reporter: Alexandra Kirk

ELEANOR HALL: Professor Jon Altman, from the Centre for Aboriginal Economic Policy Research at the
Australian National University, says the Blue Mud Bay case is extraordinarily significant.

Professor Altman told Alexandra Kirk that it's a massive expanse of coastal water that includes
valuable resources.

JON ALTMAN: Look I think this decision is extraordinarily important. Yolngu people in north-east
Arnhem Land have wanted to have their rights to what they call sea country recognised since the
passage of the Land Rights Act and have been unsuccessful.

But what this High Court decision does is support a Federal Court appeal decision that allowed
Aboriginal land to extend to the low water mark; and this has got enormous significance in the
context of the Northern Territory coastal zone.

ALEXANDRA KIRK: Do you see the potential for a commercial or cultural clash then over fishing or
other resources as a result of this High Court decision?

JON ALTMAN: What this decision does is give Yolngu people in north-east Arnhem Land, but by
extension all Aboriginal people in the Northern Territory the right to exclude commercial
exploitation of fisheries in that inter-tidal zone. So what people have to understand is that this
gives a right of exclusion over a column of water between the low and high water mark.

In that sense it's an extraordinarily significant outcome for Indigenous people because it gives
them, effectively a commercially valuable property right which is really unprecedented in the
Australian context.

ALEXANDRA KIRK: So how does it affect then the right of public to fish in public waters which is
recognised in common law and the Northern Territory Government's right to issue fishing licenses?

JON ALTMAN: This would all have to be now negotiated with traditional owners who will be
represented by the Northern Land Council. Since the appeal decision 12 months ago, and there has
been an interim regime in place and I think the Northern Land Council has indicated that they will
be looking to negotiate an outcome that will be workable for Aboriginal people, for recreational
fishers and for commercial fishing interests.

But the reality is that they if you like, Indigenous people, hold all the power and the levers in
these negotiations and that's what's fundamentally different; and that's the significance of this
case.

ALEXANDRA KIRK: And do you think that will then be seen by other Aboriginal traditional owners as
a, perhaps, giving impetus to asserting their rights?

JON ALTMAN: I think there's no doubt we will see particularly Native Title claims, which have been
recognised to offshore areas, gain impetus in terms of looking for a commercially valuable property
right because under the Native Title Act, when you've had determinations to the inter-tidal zone or
areas offshore the right has only been to customary use of resources.

And this will certainly give some impetus for people to say that there is now a precedent in the
Northern Territory where Aboriginal interests again have got effective control over commercially
valuable resources, because they've got the right to exclude all others from access to those
resources.

ALEXANDRA KIRK: You say that this is tied to the specifics of the Northern Territory Land Rights
Act but do you think it has a potential to spread to other areas of Australia where land rights
extend to the coast; and then there's an inter-tidal area?

JON ALTMAN: Look again I think that's something that would need to be legally tested. I don't think
that there isa straightforward relationship between you know, the particularities of the Northern
Territory Land Rights Act and what's happened elsewhere in Australia.

But I think morally other Aboriginal people would now be able to argue that if these sorts of
rights are being provided to Aboriginal people in the Northern Territory, they should be extended
elsewhere.

And given that the overarching aim of government policy is to close the gap between Indigenous and
other Australians, a number of commentators including myself have said that this can only happen if
you also provide Indigenous people with the commercially valuable property rights that they have
historically missed out on in Australia.

ELEANOR HALL: That's Professor Jon Altman from the Centre for Aboriginal Economic Policy Research
at the Australian National University.