Access to the intertidal zone

For more than 20 years, the NLC has been working with Traditional Owners to improve their rights and interest in looking after their sea country.

In 2008, the High Court of Australia – in a landmark case referred to as Blue Mud Bay – reconfirmed that the intertidal zone is ‘Aboriginal land’ where it falls within the boundaries of a coastal Aboriginal land trust, even when tidal waters periodically cover the terrestrial surface of the grant; and that Traditional Owners have exclusive access rights to ‘Aboriginal land’. Up until then, NT Fisheries had sought to control access to fishing in the intertidal zone.

The Blue Mud Bay determination is significant considering the size of the NT coastline: 5,100 km on the mainland, with offshore islands contributing a further 2,100 km. The Blue Mud Bay decision recognised Traditional Aboriginal Owner groups have exclusive access rights to 84%, or 6,050 km, of the Northern Territory coastline. 

Even though this significant right was granted in 2008, intertidal access arrangements have not yet been resolved.

Negotiations on the intertidal zone

User groups, including recreational and commercial fishers, have enjoyed permit-free open access to Aboriginal-owned tidal waters since the 2008 Blue Mud Bay High Court decision via various agreements and waivers. The current waiver is in place until 28 June 2019. 

Negotiations are currently taking place to reach a permanent and comprehensive settlement of Blue Mud Bay. At the NLC Full Council Meeting, scheduled for June 2019, the current waiver will be considered for extension pending satisfactory progress of the negotiations to permanently settle Blue Mud Bay. The representatives of user groups include the NT Seafood Council, the Amateur Fishermen’s Association of the Northern Territory and Fishing Tour Operators.

Where can the public fish on Aboriginal land?

Due to the permit waiver, visitors can access and fish Aboriginal intertidal waters in the Northern Land Council region (the waiver does not apply to the Tiwi or Anindilyakwa regions or closed seas). Visitors need to remember that permit free access is only granted for the intertidal waters. A permit is still required if intending to come ashore or otherwise access Aboriginal land.  Since 2011, long-term   open access agreements have been negotiated to provide permit-free access to recreational and commercial fishers for certain Aboriginal-owned intertidal areas in the Northern Territory. 

Open access agreements are in place in the Wadeye and Moyle River area, for parts of the Daly River, the Anson Bay area, around Nhulunbuy, and thelower McArthur River and Sir Edward Pellew Islands in the Gulf of Carpentaria. There is also permit free access in various locations in and around Bynoe Harbour near Darwin.  The Northern Territory Government negotiated open access agreements with Traditional Owners for coastal areas with a high incidence of fishing activity. Currently, permit-free recreational fishing access is permitted for:

  1. Malak Malak (Daly River area) – possession limits apply and the area is closed between 1 October and 31 January. The Daly River mouth region consists of the coastline to the boundary of Mabaluk land within the Daly River/Port Keats Aboriginal Land Trust.
  2. Yanyuwa (Sir Edward Pellew islands area and McArthur River) 
  3. Anson Bay area
  4. Dhimurru (Nhulunbuy area)
  5. Thamarrurr (Wadeye/Moyle River area) – intertidal waters from Dooley Point to a point south of the Old Mission including the tidal area of Docherty Island. 
  6. Roche Reef, Middle Reef, Simms Reef, Charles Point and Talc Head during high tide only (Cox Peninsula) 
  7. Grose Island, Bee Eater Island, Turtle Island, Quail Island, Dum-in-mirre Island, Bare Sand Island, Indian Island and residual coastline of the Cox Peninsula, except private lease areas and sacred sites. 

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The agreements were negotiated by the NT Government with Traditional Owners in the coastal areas with high incidence of fishing activity. Overall, Traditional Owners feel that these agreements don’t allow them to participate in decisions about access or management of their sea country, which goes beyond the low tide water mark.

Where can’t the public access?

No fishing access for the public is permitted at:

  1. Sacred sites or within 100m of sacred sites
  2. Cape Scott, within the Daly River Port Keats Aboriginal Land Trust
  3. Upper Finniss River, within the Delissaville Wagait Larrakia Aboriginal Land Trust
  4. Closed seas in the Milingimbi, Crocodile Island and Glyde River area
  5. Closed seas in the Castlereagh Bay and Howard Island area
  6. Intertidal zone of Ida Bay, Knife Island and Crocodile Island on the Cox Peninsula area
  7. Private lease areas