01 Members of the Northern Land Council
flew into the homeland centre of Yilpara to commence the Blue Mud Bay legal case hearing. Image courtesy Northern Land Council
A tireless fight THE BATTLE FOR SEA COUNTRY LEGAL RIGHTS
July 2018 marks ten years since the landmark Blue Mud Bay High Court decision that granted sea country legal rights to the Yolŋu people of the Northern Territory. This important legal fight, writes Lauren Butterly, is one small part of a much richer Indigenous history and relationship to the sea. LET’S STEP BACK TO THE 1970s in the Northern Territory. The strong fight by Indigenous peoples for land rights most definitely included the sea. The Northern Territory was the first jurisdiction in Australia to consider legal sea rights. The precursor to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was the Woodward Royal Commission into Aboriginal Land Rights. In Justice Woodward’s initial report in 1973, he noted that the questions raised by communities included ‘whether their land rights will extend out to sea and, if so, how far’.1 He further noted that: ‘It seems clear that Aboriginal clans generally regard estuaries, bays and waters immediately adjacent to the shore line as being part of their land. So also are the waters between the coastline and offshore islands belonging to the same clan.2’ In his final report, Justice Woodward recommended that a ‘buffer zone’ of up to two kilometres (from low tide) out to sea should be ‘closed’ to non-Indigenous people to protect Aboriginal land. The Northern Land Council had submitted that this be extended to 12 miles out to sea (approximately 19 kilometres).3 Justice Woodward noted that this twokilometre distance was somewhat ‘arbitrary’, but he thought it would be enough to protect traditional fishing rights from nonIndigenous commercial fishers or tourists.4 However, Justice Woodward noted his commitment to such sea country rights,
as he stated that: ‘The lesson of history is that any privileges which [Indigenous peoples] have should not lightly be put aside or reduced’.5 This recommendation was initially taken up by the Whitlam government when it drafted the original Aboriginal Land Rights (Northern Territory) Bill. There was then a sudden change of government on 11 November 1975 and, as a result, the bill lapsed. A new bill was introduced in 1976, but it did not contain the sea rights buffer zone. The Member for Hughes, the Hon Leslie Johnson, raised the issue of sea country rights in the House of Representatives on 17 November 1976. He said: ‘This omission has upset a large number of Aboriginal communities as it offers them no protection of their fishing …’.6 He referenced a number of letters sent by communities, such as Yirrkala, fighting to keep these sea rights. However, all attempts to amend the 1976 bill to reintroduce the two-kilometre sea country rights buffer zone were unsuccessful. Instead, a provision was inserted into the bill that became the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) allowing the Legislative Assembly for the Northern Territory to make ordinances regulating or prohibiting the entry of non-Indigenous persons to seas within two kilometres of Aboriginal land.7 The Northern Territory did this by providing for sea closures in AUSTRALIAN NATIONAL MARITIME MUSEUM 19
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