AUSTRALIA: Land rights fight enters unchartered waters

The debate over land rights for indigenous Australians is ongoing. Maybe one day soon 'everyone' will wake up to the fact that the global commons belong to "everyone", and all those who exploit resources should be compensating the rest of us on the planet. The following three reports are informative. The final judgment is due soon.

1/ Journal of Material Culture, Vol. 11, No. 1-2, 67-85 (2006)
Tasting the Waters
http://mcu.sagepub.com/cgi/content/abstract/11/1-2/67
Discriminating Identities in the Waters of Blue Mud Bay
By Howard Morphy
Centre for Cross Cultural Research, Australian National University
and Frances Morphy
Centre for Aboriginal Economic Policy Research, Australian National University

This article focuses on the pattern of sea ownership in the north of Blue Mud Bay in Arnhem Land, north Australia. Detailed research into the specificities of sea and land ownership in the region has revealed a more complex pattern than has previously been supposed to exist. It is nonetheless one that can be accommodated within previous models of estate ownership in Australia. In the article we seek to explain the pattern of ownership observed according to ontological (mythological), ecological and sociological factors. We argue that these factors are relatively autonomous and act as co-determiners of a system that is both flexible and structured. We argue that the Yolngu view that land/sea ownership is ancestrally determined is entirely congruent with evidence of the long-term stability of the system of relationships between groups over time, in particular given that the Yolngu perspective includes ancestrally sanctioned processes of succession. We show how, through the rhetoric of sea ownership and the metaphoric discourse in which relationships between different estate areas are embedded, the land/seascape serves as an underlying template for spiritual and social relationships which simultaneously underlie, and emerge through, social action.

2/ Court went too far in Blue Mud Bay case, barrister says
Dec 4, 2007

The High Court has been told the Federal Court went further than it was asked when it ruled in favour of an Indigenous claim in the Blue Mud Bay water rights case in the Northern Territory.

In March this year, the Federal Court gave traditional owners at Blue Mud Bay exclusive control of waters between the high and low water mark on the East Arnhem Land coast, about 200 kilometres south of Yirrkala.

Nearly 80 traditional owners have travelled to Canberra for the hearing in which the Northern Territory is challenging the Federal Court ruling, which has cast doubt over the validity of the Fisheries Act.

Counsel for the Northern Territory, David Jackson QC, has told the court the claimants had only asked for a ruling stopping fishing licences being granted, but that the Federal Court ruling went way beyond that.

Mr Jackson also told the court that the earlier ruling was wrong because it assumes the Land Rights Act and the Fisheries Act cannot operate concurrently.

The result of the case will determine the future of who controls access to waters in the intertidal zone for up to 80 per cent of the Northern Territory coastline.

Meanwhile, the Northern Territory Opposition is calling on the new Federal Government to show more commitment to the Blue Mud Bay case.

As an election promise, CLP MP Dave Tollner said a re-elected Coalition Government would introduce legislation that would over-ride the court's ruling if today's appeal is lost.

NT Deputy Opposition Leader Terry Mills says the Labor Party needs to act.

"The Territory Government needs to do more that to just put large ads in the NT News - they really have to apply their mind to this and also I'd be calling on the new Federal Government [to do the same]," he said.

NT Chief Minister Paul Henderson says if his Government loses the case, legislating around the problem would be a matter for new Prime Minister Kevin Rudd to consider.

But he says the NT Parliament has no power to amend laws in this area.

"We can't once the High Court makes a decision, that's it - that's binding," he said.

"The High Court is the most supreme legal body in the land and their ruling will be binding on the Territory."

Northern Land Council spokesman John Christophersen says it is hoped the decision will give traditional owners a greater role in the management of fisheries.

"The importance of the sea cannot be underestimated," he said.

"This is probably the biggest decision since land rights itself and for coastal communities and the people here - it is of just as bigger importance."

3/ Land rights fight enters unchartered waters–By Markus Mannheim, – December, 2007