Relationship to Land and Seabed Rights

888. Land Use and Ownership of Land. Discussion of hunting and gathering in terms of sustenance or of tradition does not mean that these questions can be divorced from the question of land. For Aboriginal people the two are inseparable:

The shift from a hunter-gatherer mode of subsistence to a sedentary lifestyle on government settlements, cattle stations, missions and towns has meant more than the loss of land for Aboriginal men and women. Today they no longer control the resource from which both physical and spiritual sustenance may be drawn. The use one makes of the land and the spiritual maintenance of that land in ritual are intertwined and underwritten by the law.[1493]

The relationship between rights to hunt and gather and ‘ownership’ of or ‘title’ to land is however highly complex, and has been the subject of much anthropological debate.[1494] The terms ‘estate’ and ‘range’ have been used to distinguish ownership or custodianship of land from land use, and ‘clans’ and ‘bands’ to distinguish land-owning from land-using groups.[1495] There is a danger that whatever terms are used may conceal the flexibility and diversity found in Aboriginal societies.[1496] Dr Hiatt’s study of the Gidjingali illustrates the way in which land using groups may forage over land owned by others. He commented in their case:

If every land-owning unit had had to depend solely upon the resources of its own estate, some would certainly have perished. (During the major tidal inundations salt water alone was available on the estate of one unit and on that of another there was no fresh water at any time). The diets of many others would have been monotonous and, at times, meagre. But the inhabitants did not suffer such hardships because they took open access to food and water for granted. People maintained a roughly uniform standard of living by moving over one another’s estates and freely exploiting the resources. The region was rich in natural products. When a community exhausted the food supply in one place, it moved to another. On occasions the members visited neighbouring communities, and at other times acted as their hosts. Sharing deprived no one of basic requirements, and land owners from time to time had the satisfaction of fulfilling expectations of generosity.[1497]

889. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The definition of ‘traditional Aboriginal owners’ in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) talks not only in terms of the ‘local descent group with common spiritual affiliations to a site and primary spiritual responsibilities for that site and for the land’, but also requires an entitlement by Aboriginal tradition ‘to forage as of right over that land’ (s 3(1)). The Land Commissioner has taken the view that the requirement of an ‘entitlement to forage as of right’ must spring from Aboriginal tradition,[1498] and that it must involve a right to forage over the land of the descent group.[1499] As Justice Toohey pointed out in the Uluru Report:

That may not be the same as the land claimed: in most cases it will not be because the claim area will involve several local descent groups. I do not think it is necessary, in order to find traditional ownership, that each local descent group has a right to forage over an area wider than that for which the group has primary spiritual responsibility … It is beyond question that the members of each estate are entitled to forage as of right over that land. Evidence of this emerged at every turn … A more difficult question is whether the evidence demonstrated a right in the members of one estate to forage over the land of another. Dr Layton expressed the view that before the people of one estate may enter on to the land of another:

they must first know the songs and then must have seen the sites or been shown the location of the sites in that estate.[1500]

Entitlement to forage is the right to hunt and gather food. However, where a grant of land is made under the Act, the grant of land is for the benefit of Aborigines entitled by Aboriginal tradition to the use or occupation of that area of land, ‘whether or not the traditional entitlement is qualified as to place time, circumstance, purpose or permission’.[1501] The two requirements serve different purposes:

an entitlement to forage goes to a finding of traditional ownership. A right to the use or occupation of land other than that of the local descent group is relevant to the form of any recommendation made.[1502]

The Northern Territory land claim experience thus provides judicial recognition of the nexus between land use and claims to ‘own’ land. But it has also established that the entitlement to forage usually, if not invariably, extends beyond land claimed by one descent group into land of others. The Land Commission’s hearings have acted as a catalyst for research into these questions. However they have been limited to those traditional Aborigines who are in a position to claim entitlement to land in the first place. The power to bring a land claim does not assist those Aborigines who have been dispersed and resettled, for whom proof of traditional attachment to their particular land may be no longer possible. Nor does it assist those whose land is no longer ‘unalienated Crown land’ claimable under the Act. But these people may also, and legitimately, wish to supplement their diet by hunting and gathering on land. Clearly the needs of each group may have to be met in differing ways.

890. Sea Use and Ownership of the Seabed. In 1908, Wilkin stated:

As foreshore rights of landed property extend not only over the adjacent reef, but to the water over it — as in the case of fish caught in the area — so the inhabitants of certain areas appear to have a pre-emptial right to certain distant fishing stations which lie off their part of the coast.[1503]

Commissioner Woodward considered that Aborigines generally regarded the estuarine, bays and waters immediately adjacent to shoreline as being part of their land.[1504] Little is known about traditional sea rights or fishing practices some distance from land, most research being conducted into estuarine and in-shore fishing practices. Recent anthropological research into traditional territory fights to the seabed has yet to reach the detail and comprehensiveness of that completed on territorial rights to land. However studies in North East Arnhem Land[1505] and the Torres Strait[1506] indicate that clear territorial sea-bed boundaries can be established, at least in some cases.[1507] These have been made the basis for applications for closure of the seas under the Aboriginal Land Act 1978 (NT). Section 12 requires the Aboriginal Land Commissioner to consider sea closure applications referred to him by the Administrator. Matters to be considered by the Commissioner include whether Aboriginal tradition restricts entry by strangers into the particular seas, and whether use of the seas by strangers would interfere with Aboriginal traditional use of the seas by those Aborigines who were traditionally entitled to use the seas (s 12(3)(a), 12(3)(b)). On the other hand the Aboriginal Land Inquiry in Western Australia preferred not to recommend a system of sea closures which could create ‘more exclusivity than is necessary to protect traditional interests’.[1508] The Commissioner rejected the vesting of the sea bed in Aboriginal claimants and sought other methods of protecting Aboriginal traditional fishing interests.[1509]