Native Title Year in Review 2023-2024

What you need to know

• The Federal Court has confirmed that the mouth of a river (ie an estuary) is "land" that can be granted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Northern Territory of Australia v Aboriginal Land Commissioner [2023] FCA 1183).
• The Federal Court confirmed that the 2002 High Court decision in Risk v Northern Territory of Australia (2002) 210 CLR 39 did not prevent estuaries falling within the definition of "land". The findings in that decision were confined to the seabed of bays and gulfs.

What you need to do

• If you are interested in the remaining unresolved ALRA land claims, consider the significance for those claims of this expanded interpretation of 'land'.
• Be aware that ownership of river estuaries is a very significant right that makes Traditional Owners the key decision makers in respect of the use of that environmentally sensitive and abundant "land".

Reminder: what is the ALRA and why was Justice Bromberg "delighted" with this case?

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) was the first and most influential land justice scheme dating from the Whitlam era (though passed into law by the Fraser government). 

Almost half of the land in the Northern Territory is now held as Aboriginal freehold under the ALRA.

You would think that the meaning of "land" in the ALRA had been resolved during the many decades since its enactment.  

However, much to Justice Bromberg's delight, the decision Northern Territory of Australia v Aboriginal Land Commissioner [2023] FCA 1183 required the Court to consider whether the mouth of a river (ie an estuary) was "land" that could be granted under the ALRA.  

As Justice Bromberg put it, "where the does the sea end and the land begin?".

The dispute was about whether the estuaries of certain rivers were "land" for the purposes of the ALRA

In 1997, the Land Council made two land claim applications on behalf of Aboriginal groups claiming to be the traditional Aboriginal owners of the following areas of unalienated Crown land in the Northern Territory: 

• the Legune Area Land Claim, which included the estuaries of the Keep River and the Victoria River; and 
• the Fitzmaurice River Region Claim, which included the estuary of the Fitzmaurice River.

In 2022, the Commissioner recommended that the land claims be granted, and that the grants include the mouths of the respective rivers.  

The Northern Territory sought judicial review of this aspect of the decision. It did not dispute that the Aboriginal claimants were the traditional owners of the areas claimed but argued that the grants were beyond the Commissioner's jurisdiction as they included areas which did not constitute "land in the Northern Territory" within the meaning of the Act. 

There was no disagreement between the parties that: 

• "land" is not confined to dry land but includes streams and creeks, as well as the beds of rivers and lakes; and 
• the seabed is not "land" under the Act.

The question in dispute was whether the mouth of a river — ie an estuary — was considered "land" for the purposes of the Act. 

The Court noted that the parties were "literally miles apart" on this issue. 

High Court decision in Risk

In 2002, the High Court held in Risk v Northern Territory of Australia (2002) 210 CLR 392 that the seabed of bays and gulfs within the limits of the Northern Territory cannot be subject to a claim under the ALRA.  

The Risk decision concerned an appeal against the Commissioner's refusal to grant land over thousands of square kilometres of seabed beyond the low water mark in Darwin harbour and offshore areas. In this new case, the Northern Territory asserted that the Commissioner had misapplied the reasoning in the Risk decision and had therefore acted beyond its jurisdiction in making recommendations in respect of areas that did not constitute "land" for the purposes of the Act. 

In other words, the Northern Territory argued that the Risk decision also applied to estuaries.

Where did the Court draw the line? 

The Court rejected the Northern Territory's arguments. In the Risk decision, an important distinction was made between: 

• internal waters of the Northern Territory that have seabeds (ie bays and gulfs); and 
• internal waters of the Northern Territory that abut the coast but are internal to the coastline and do not have seabeds (rivers and estuaries).

The Court found that the Commissioner was correct to reject the contention that the reference made to "bays and gulfs" in the Risk decision was intended to extend to a "bay, gulf, inlet, estuary or watercourse". The Court noted that Gummow J in Risk explicitly noted that "nothing decided by this litigation denies the efficacy of grants under the Act in respect of areas including rivers and estuaries". 

The Court found that the Commissioner had correctly reviewed the evidence and formed its view of the proper characterisation of "land" in respect of the areas subject to the claims. For this reason, the Court was not persuaded that the Commissioner's recommendations were tainted by the jurisdictional errors advanced by the Northern Territory. 

On that basis, the application was dismissed.   

Where to from here?

Ownership of river estuaries is a very significant right.  Succeeding in this claim ensures that the Traditional Owners become the key decision makers in respect of the use of this "land" rich in fauna and flora.

As at June 2023, 26 years after the sunset date for land claims under the ALRA, there were still 34 claims yet to be resolved (see the Aboriginal Land and Sea Action Plan Yearly Report 1 2022 - 2024).

Who knows whether any of these claims will present the Federal Court with further opportunities to consider fascinating issues like the ones which delighted Justice Bromberg in this decision.

Authors: Leanne Mahly, Lawyer; Hannah Schmidt, Lawyer; Leonie Flynn, Expertise Counsel.