KEY POINTS:
Blue Mud Bay wraps around East Arnhem Land in the Northern Territory, home to the Yolngu hamlet of Yilpara, and about 200km from the larger settlement of Yirrkala where Prime Minister Kevin Rudd hosted the latest in a series of community cabinet meetings.
This is one of the
most isolated regions on the continent, unknown to most Australians. But it has been an epicentre of the land rights movement, and this week the tremors raced out into the waters beyond Blue Mud Bay and around a vast expanse of Australia's northern coastline.
The High Court has upheld an indigenous claim for the tidal waters of the bay, effectively handing traditional owners exclusive rights to fishing in the sea between low and high tides in a decision that will extend to 80 per cent of the Territory's coastline.
The 5-2 decision by the Court's full bench has the immediate effect of overriding Northern Territory legislation and the controls and regulations this imposed on commercial and amateur fishing.
It also, for the first time, extends the economic rights of native title from the land into the sea, where previous decisions had in effect granted only customary subsistence rights. Huge tidal drops mean vast areas of rich fishing grounds are involved.
But the decision has broader implications. It will be used as a precedent for other similar claims around Australia, and has given heart to Torres Strait Islanders embroiled in a long-running claim for control of the vital seaway between the northernmost tip of Australia and Papua New Guinea.
In Darwin, both sides of politics have found rare accord in an election campaign to express concern at the High Court's decision, and have urged traditional owners not to impose a permit system to control access to a coastline that was previously open to fishing under common law.
Chief Minister Paul Henderson went further, guaranteeing that permits would not be introduced if his Labor administration was re-elected, driving the Government toward a potential, bruising, battle with traditional owners.
In Canberra, experts in the Attorney-General's office are studying the detail of the decision, and the wider implications.
Rudd has praised the "positive and constructive" attitude of indigenous organisations, and has urged flexibility in negotiating deals with commercial and amateur fishers.
"I think the key way through this is common sense," he said. "We would urge all parties to show common sense and - as this matter has been the subject of legal deliberation for a long, long, long time - it is time now for common sense to prevail on the ground that the High Court has now clarified the law."
Rudd had himself influenced, to some degree, the High Court.
Justice Michael Kirby said in his judgment that he had taken into account Rudd's landmark apology in February to the Stolen Generations of Aborigines: "Given the attention to - and nationwide reflection upon - its making, terms and reconciliatory purposes, it is appropriate, in my view, for this Court to take judicial notice of that apology."
For the Yolngu people, the recognition of their ownership of tidal waters is the culmination of a long campaign that has had significant implications for native title across Australia.
In 1963, when the Liberal Government of Sir Robert Menzies gave part of their land to bauxite miner Nabalco, they signed a petition on bark and sent it to Canberra in protest in a move that gained international attention to the cause. It was later displayed in Parliament House.
The petition, and a later injunction, failed to stop the mining. But what became known as the Gove land rights case established that Aborigines had maintained a consistent economic and spiritual use of the land under law.
The case was a key mover in the establishment of a royal commission that in turn led to the 1976 Aboriginal Land Rights Act, federal legislation covering the Northern Territory that for the first time recognised indigenous claims.
Under this act, and the broader Mabo legislation, about 560,000sq km - almost half of the Territory - has been returned to traditional owners.
The commission also found that the definition of Aboriginal land should include offshore islands and waters within 2km of the low tide line, allowing them to protect traditional fishing rights from commercial and recreational fishers.
The Federal Court last year finally gave legal recognition to Aboriginal claims, three decades after the commission recommended the granting of rights over the inter-tidal zone.
That decision, which at a stroke removed laws controlling access and licensing, was immediately contested by the Territory Government. Its argument finally collapsed this week when the High Court upheld the Federal Court's ruling, finding that there should be no distinction between dry land extending to the low water mark, and the large tracts covered by water at high tide.
The impact is now being assessed by federal and Territory governments and the fishing and tourism industries. The Territory Government is opposed to the prospect of access to the coastline falling under the control of an indigenous permit system, and amateur fishing organisations are already demanding compensation.
Federal Indigenous Affairs Minister Jenny Macklin said this was not likely, and urged co-operation: "I think [talk of compensation] is really jumping ahead to a point that at the moment doesn't look necessary, because all parties are saying that they want to address this together."
Traditional owners have already agreed not to enforce their new rights for at least a year to allow negotiations, a move that was welcomed by the NT Seafood Council, which estimates about 200 commercial operators will be affected.
The council has already been talking with the Aboriginal Northern Land Council, and says it is relaxed about the decision.
Aboriginal and Torres strait Islander Commissioner Tom Calma said a negotiated settlement would ensure commercial and recreational fishing would continue.
"The High Court decision should be seen as a positive step which presents another opportunity for indigenous and non-indigenous Australians to work together to achieve a mutually beneficial outcome."
Legal experts believe Blue Mud Bay will help launch similar claims around Australia.
Centre for Aboriginal Economic Policy Research head Professor Jon Altmann told ABC radio that though there would be no direct flow-on to other areas, the decision would influence other cases - particularly in the allocation of commercial, rather than customary, fishing rights.
"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 effective control over commercially valuable resources because they have the right to exclude all others from access to those resources," he said.
Torres Strait Islanders are already investigating the implications of the Blue Mud Bay ruling for their own long-running regional sea claim, filed in 2001 and covering about 42,000sq km of the Torres Strait between Cape York Peninsula and Papua New Guinea.
The islands have already fundamentally changed land rights in Australia, through the Mabo case that ended the legal fiction of terra nullius and led to laws allowing claims by traditional owners over huge tracts of Australia. They now hope the ruling will help their claim, vastly more complex because of issues involving the law of the sea, a boundary treaty with PNG, and Queensland law.
