Draft government documents about fishing rights in Aboriginal waters have been leaked to the ABC, triggering an extraordinary threat of injunction by the Northern Territory government, before later indicating it would not seek to move forward with legal action.
The departmental documents relate to the ongoing implications of the High Court's landmark Blue Mud Bay decision in 2008, which gave traditional owners exclusive access to about 6,000 kilometres of coastline.
The ruling has been the subject of heated political debate because of its impact on amateur and commercial fishers, who subsequently required permission from Indigenous landowners to enter Aboriginal waters in the NT.
The leaked documents express serious concerns about an existing agreement between the Northern Territory government and the Northern Land Council (NLC), which has enabled access to some fishing zones until the end of this year.
The draft documents describe the agreement as "flawed", "lacking in transparency", and "heavily skewed" in favour of traditional owners, with "no consideration" of the broader fishing industry.
The material — which included a memorandum and a separate report — was drafted by the Department of Industry, Tourism and Trade and sent to the office of Fisheries Minister Paul Kirby, who says that he did not progress them further.
The documents are addressed to "cabinet colleagues" but were not signed or dated by Mr Kirby, and it is unclear when they were prepared.
But after submitting questions to the office of the minister on Monday about whether he shared the concerns, the ABC was sent an email from the office of the Solicitor for the Northern Territory.
It said they were instructed that unless the ABC immediately agreed not to disclose allegedly confidential material, it would seek an urgent court injunction to prevent publication on the basis of "breach of confidentiality".
But 24 hours later, the government's lawyers wrote again to say they were now instructed not to seek an injunction. The letter provided no reason for the government's backflip.
Separately, the ABC received a statement from Mr Kirby, who said: "The document referred to was drafted by the Department of Industry, Tourism and Trade before being sent to my office. This is common process with these sorts of documents".
"I did not sign the document and it was not progressed further. Again, this is common process.
“We will continue to have constructive discussions around the Blue Mud Bay Implementation Agreement seeking the best outcomes for land owners and fishers.”
Blue Mud Bay 'most significant' lands rights ruling since Mabo
The Blue Mud Bay decision has been described as the High Court's most significant land rights ruling since the Mabo case led to the creation of the Native Title Act.
In the 14 years since the court's decision, a series of time-limited agreements have been brokered between the NT government and traditional owners to allow recreational fishers permit-free access to some intertidal zones that sit over Aboriginal land.
The most recent of those agreements — known as the Blue Mud Bay Implementation Action Plan — was signed two years ago, and included a $10 million commitment from the government to help the NLC set up an Aboriginal-owned fishing enterprise.
"This isn't empty talk, this is about actions," former chief minister Michael Gunner said in August, 2020.
The following year, a free registration process was introduced by the NLC to provide permits to recreational fishers for access to about 2,000 kilometres of coastline, in mostly remote areas.
But the Implementation Action Plan, including ongoing access to some fishing areas, expires in less than three months.
Fishing agreement developed 'without transparency'
The leaked draft documents say the "considerable uncertainty" surrounding future fishing access arrangements is of "immediate concern".
They also state that it is not yet known whether fees could apply as part of any future permit scheme.
"[The issue] will potentially attract critical and divisive public debate in the coming months."
They state the current action plan "is not delivering" on its intended purpose of a win-win for all stakeholders, and suggest an alternative, "more inclusive" policy position from the government.
"The implementation agreement was developed without transparency and accordingly the proposed outcome ... delivers poor policy outcomes and has served to disenfranchise the other key fishing stakeholder sectors."
Additionally, the documents question the process surrounding the existing arrangements with the NLC.
"It is also not clear at which point [or why] government determined that, as a matter of policy, Aboriginal interests should have priority rather than to ensure parity with other groups in terms of engagement and participation, and integration of customary needs into management."
The documents also warn that the current implementation plan with the NLC could lead to the commercial fishing sector asking the federal government to abolish existing joint Commonwealth-NT management of fisheries off the NT coast "on the basis that the NT government no longer has the ability to manage fisheries effectively".
Last year, the NT's peak recreational fishing lobby group blamed the government for the "very disappointing" decision of the NLC to introduce a registration system.
But the Northern Land Council defended its stance.
"Aboriginal land and sea country is privately owned," the organisation's then chief executive — and now federal member for Lingiari — Marion Scrymgour said at the time.
"Like any landowners, they have the right to say who can and who cannot come onto their country."
The Northern Land Council said it remained confident that all commitments made under the Blue Mud Bay Action Plan will be honoured.
