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NT’s bid to overturn grant of land to traditional owners fails
The Northern Territory failed to overturn a recommendation that a number of grants of land be given to the Aboriginal traditional owners.
Naomi Neilson
The territory’s government, with Commonwealth support, sought a judicial review of the proposal that land in the north-west, located near the West Australian border, be the subject of grants of land to those the Aboriginal Land Commissioner (ALC) found were traditional owners.
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On Thursday (5 October) afternoon, Justice Mordy Bromberg of the Federal Court dismissed the NT’s application for review and commented that this particular proceeding had raised “fascinating issues”.
“The critical question is where does the sea end and the land begin? That engaging question is raised on the judicial review application of the Northern Territory of Australia,” Justice Bromberg said.
Under the Aboriginal Land Rights (Northern Territory) Act 1976, the ALC made a recommendation for the “Legune Area Land”, which includes the estuary of the Keep River and Victoria River; and the “Fitzmaurice River Region”, which includes the estuary of the Fitzmaurice River.
The NT asserted the ALC, in its limited function of recommending a grant of “land in the NT”, misconstrued the act and exceeded jurisdiction.
What was primarily in dispute was the ALC’s conception of where the sea began in relation to an area occupied by an estuary.
“As to that question, the parties are literally miles apart,” Justice Bromberg said.
The NT had contended the land ends where the estuary begins at what it calls the “mouth of the river”.
The third respondent, the Northern Territory Land Council, instead submitted that for the purposes of the act, the coastal low-water mark is the “boundary of the sea” and where the land then begins.
Referring to an argument in Risk v Northern Territory of Australia – into whether the seabed of bays and gulfs in the NT can be the subject of a traditional land claim – Justice Bromberg ultimately found its reasoning was “consistent” with the ALC’s concentration “upon the line of the coast constituting the demarcation between land and sea”.
