The Blue Mud Bay case – Aboriginal property rights in the Northern Territory

Each year the Wentworth Group (WG) invites 8 to 10 PhD scholars from around Australia and a bunch of “young professionals” to Sydney to meet with its members and participate in discussions relating environmental science and public policy. Many of the scholars have had previous experience in the workforce. This WG program has been running for 10 years. We aim to bring together a mix of discipline interests across fields from natural and social science. Each year I am impressed with how those who attend become engaged in discussing problems facing Australia in our endeavours to translate knowledge into policy.

One of the joys of WG master classes are the breakout sessions. On these occasions members take 2 or 3 participants for an open chat about their interests. It provides members of WG with an opportunity to learn more of career progress and what scholars think about the relevance of their work to public policy. During one of these sessions at the Master Class this year, the question of Aboriginal land rights over the sea, specially intertidal areas, was raised. One of our scholars is studying Indigenous land use issues in the Northern Territory. Our attention was drawn to the Blue Mud Bay case in the High Court of Australia (Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29). At the time our knowledge was scratchy and we had to chase up further information to ensure we got right the facts of the case. I am indebted to one of the young professionals in our group, a lawyer, for assistance.

I have read that the Blue Mud Bay decision stands as one of the most significant affirmations of Indigenous legal rights in recent Australian history (Sean Brennan, 2008, in Indigenous Law Bulletin 27). The decision relates to Aboriginal property rights in the Northern Territory as applied to the intertidal zone, including river mouths and estuaries, along most of the NT coastline. This zone in the NT covers vast areas and rich fishing grounds. The Commonwealth Government along with the NT Government and the NT Seafood Council opposed the Land Council in this case, but their position was rejected by 5 judges to two. All parties agreed that the intertidal bed (termed soil) was Aboriginal Land, but in contention were the waters that flow over this surface. Could or could not Aboriginal communities place restrictions on those seeking to fish these waters under licence in accordance with NT law?

The High Court majority concluded that a person cannot enter and remain on Aboriginal land unless authorised, and that intertidal land is Aboriginal land including the covering waters. The reasons for this are set out in detail in the Commonwealth Law report on the case and summarised by Sean Brennan. It is interesting to also read the minority view that a boat fishing on tidal waters was actually not on “Aboriginal land”. To one judge, the Aboriginal land owners in the NT hold property rights that are inferior to other owners and vulnerable to legislative alteration. However, following the decision goodwill has prevailed and agreements reached with parties concerned over the use of the waters.

Justice Kirby in agreeing with the majority made further comments on the principles that underpin this case related more broadly to native title rights. He placed his comments in the context of other common law jurisdictions related to the “ambit of the legal rights to the traditional interests of indigenous peoples living in societies settled during colonial times”. He cited a Canadian judgement that Indian title could not be extinguished except by specific legislation. This was not the case in the NT. This majority interpretation, in his view, were linked to principles such as preserving Aboriginal interests as a “species of property rights”. He cited  Mabo, stating the source and origin of communal Aboriginal interests in land is “quite different from that of other such interest in Australia” (Commonwealth Law Reports, HCA, 2008,p.69). Kirby also discussed the implications of the National Apology of 2008 and the Native Title Act 1993, noting in the case of traditional Aboriginals their rights to both the peaceful enjoyment of their traditional lands and to navigate and fish as their ancestors had done. The Apology offered a social context in which such laws are to be applied, and the reasons behind the majority decision in Blue Mud Bay case should be adopted in all such cases (p.71).

Application of the Commonwealth Native Title legislation in coastal lands and waters is likely to be a matter of continuing interest in coastal management. It is clear from this High Court case that there are principles that need to be considered in other states where Native Title is granted. One lesson from the Blue Mud Bay case is how the outcome led to peaceful negotiations between interested parties in the NT. One would hope that as part of the process, Indigenous Land Use Agreements (ILUAs) will always evolve in a similar manner. I am very grateful to those participants at the Wentworth Group Master Class for making me more aware of this case and its implications.

Words by Prof Bruce Thom. Please respect Bruce Thom’s thoughts and reference where appropriately: (c) ACS, 2017, posted 20th April 2017, for correspondence about this blog post please email