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Editors --- "Commonwealth v Yarmirr; Yarmirr v Northern Territory - Case Summary" [2001] AUIndigLawRpr 48; (2001) 6(4) Australian Indigenous Law Reporter 42


Court and Tribunal Decisions - Australia

Commonwealth v Yarmirr; Yarmirr v Northern Territory

High Court of Australia (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ)

11 October 2001

(2001) 184 ALR 113; [2001] HCA 56.

Native title — claim to exclusive possession, occupation and use of the sea, sea bed and its resources — whether the common law extends beyond Australia’s mean low water mark — whether native title may be recognised below the mean low water mark of Australia — operation of the Native Title Act 1993 (Cth) regarding recognition of native title rights and interests not recognised by the common law — effect on native title of the public international law right of innocent passage — effect on native title of the common law rights of navigation and fishing — effect of international law in deciding native title

Editor’s note: footnotes have been extracted from the original document.

Hearing at first instance:

Yarmirr v Northern Territory (1998) 82 FCR 533; (1999) 4(2) AILR 61

An application for a determination of native title pursuant to the Native Title Act 1993 (Cth) was lodged on behalf of the Mandilarri-Ildugji, Mangalara-Yangardi, Gadura-Minaga, Murran and Ngaynjaharr peoples. The claimed native title rights and interests related to the sea and sea-bed of the Croker Island region of the Northern Territory and any land or reefs in that area not already granted for the benefit of the Aboriginal people pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

In substance, the trial judge held that:

(a) the common law does not of its own accord operate beyond the low water mark and so cannot recognise and protect offshore native title beyond the geographical limits of Australia;

(b) the only part of the claimed area within the geographical limits of the Northern Territory is that part of the area within Mission Bay;

(c) the Native Title Act extends and enhances the common law concept of native title and affords recognition and protection of offshore native title within the area of the coastal sea of Australia and the waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973 (Cth);

(d) the Native Title Act provides for the recognition and protection of the claimants’ non-exclusive native title right of free access to the sea and sea bed of the claimed area, for the purpose of travelling through or within it, to fish, hunt and gather for non-commercial purposes within it, to visit and protect places of spiritual importance, and to safeguard their cultural and spiritual knowledge; and

(e) even if native title rights to exclusive possession of the claimed area could be proved, they could not be recognised by the common law as they would be inconsistent with the public international law right of innocent passage and the common law public rights of fishing and navigation.

Appeal to the Federal Court:

Commonwealth v Yarmirr; Yarmirr v Northern Territory [1999] FCA 1668; (2000) 101 FCR 171

The Commonwealth appealed on the basis that the primary judge had erred in holding that the Native Title Act provided for the recognition of offshore native title, that the native title rights recognised by the court were already exercisable under the public right to fish and could not be separately recognised or, alternatively, that there was insufficient evidence to support the claim relating to part of the claimed area located to the north and east of New Year Island. The claimants appealed against the finding that their native title rights and interests were not found to be exclusive, and that these rights and interests were not found to include a right to fish, hunt and gather for the purposes of trade or a right to exploit and control access to the resources of the sea, sea bed and subsoil, the right to exclude persons exploring for minerals and a general right to exclude others from the claimed area.

In substance, the Court held that:

(a) the Native Title Act recognises and protects offshore native title, where claimants can show they currently possess the claimed rights and interests under the traditional laws acknowledged and traditional customs observed by the claimants;

(b) the trial judge was correct in finding that the evidence did not establish native title rights to exclusive possession, occupation and use of the claimed area, moreover subsequent legislative and administrative actions would most likely make it impossible to now recognise such exclusive rights;

(c) exclusive native title rights cannot be recognised in relation to the claimed area as they are inconsistent with the public international law right of innocent passage and the common law public rights of fishing and navigation; and

(d) the trial judge was correct in finding no native title rights or interests in relation to the subsoil and minerals beneath the sea bed in the claimed area, or to trade in the claimed area’s resources.

In dissent, Justice Merkel in substance held:

(a) for a native title right or interest to be recognised and protected by the Native Title Act, that right or interest must be capable of recognition and protection by the common law;

(b) the common law has come to apply to different parts of the claimed area at different times, and so recognition of the claimed native title must be considered for different parts of the claimed area according to the status of that native title at the date the common law came to apply to the relevant area; and

(c) the matter should be remitted to the trial judge to be decided in conformity with these reasons.

Appeal to the High Court:

Both parties appealed to the High Court. The Commonwealth claimed that the trial judge and full Federal Court had erred in finding the existence of native title in the claimed area, because the common law does not apply offshore and no other law provides a basis for recognition of offshore native title; or, alternatively, that native title cannot exist beyond the seaward limit of the coastal waters of the Northern Territory for the same reason and also because neither the Commonwealth nor Northern Territory have radical title to the claimed area beyond those coastal waters.

The claimants’ claimed that the trial judge and full Federal Court had erred in failing to find that the native title holders had a right to exclude others from the area at particular times, an exclusive right to fish, hunt and gather in the claimed area, a right to occupy, use and enjoy the claimed area generally to the exclusion of all others and a right to control the use and enjoyment of the resources of the claimed area. The courts further erred in not finding that these rights could be recognised despite the public right to fish, and that the public right to fish did not prevail over these rights. It was conceded that the public right of navigation could prevail over the claimed native title rights, but that this did not preclude recognition of those rights.

Held:

1. Per Gleeson CJ, Gaudron, Gummow, Hayne JJ (McHugh and Callinan JJ dissenting): The Commonwealth was incorrect in asserting that the common law does not extend, apply or operate beyond the low water mark. Even in the absence of statute, courts can give effect to rights and duties deriving from or relating to events occurring or places lying beyond the low water mark. R v Keyn (1876) 2 Ex D 63 distinguished, and British South Africa Co v Companhia de Mocambique [1893] AC 602 considered. [24]–[39], [179]–[181], [351]–[364]

2. Per Gleeson CJ, Gaudron, Gummow and Hayne JJ (McHugh and Callinan JJ dissenting): The Native Title Act will recognise and protect native title rights and interests that are ‘recognised by the common law of Australia’. The common law can recognise and protect native title rights and interests that are not inconsistent with it. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 applied. [40]–[42], [104]

3. Per Gleeson CJ, Gaudron, Gummow and Hayne JJ (McHugh J dissenting): Though native title rights and interests, where established, burden the Crown’s radical title, the acquisition of radical title by the Crown over a claimed area is not a precondition for the existence and recognition of native title in relation to that area. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 distinguished. [44]–[50], [209]–[217]

4. Per Gleeson CJ, Gaudron, Gummow and Hayne JJ (Kirby J dissenting): The various acquisitions of sovereignty over Australia’s territorial sea by the Crown have not been necessarily inconsistent with the continued existence of the claimed native title in relation to that sea. The acquisition of sovereignty has, however, made any native title in relation to the territorial sea subject to the common law public rights of fishing and navigation and the public international law right of innocent passage. The native title claim to exclusive possession is inconsistent with these rights. New South Wales v Commonwealth (Seas and Submerged Lands Case) [1975] HCA 58; (1975) 135 CLR 337; The ‘Twee Gedbroers’ [1801] EngR 502; (1801) 3 C Rob 336 [165 ER 485] applied. [51]–[61], [267]–[291]

5. Per Gleeson CJ, Gaudron, Gummow and Hayne JJ: There is nothing in the legislation effecting the offshore constitutional settlement which is inconsistent with the common law of Australia recognising native title rights or interests in relation to the sea or sea bed in the area of the territorial sea. [62]–[76]

6. Per Gleeson CJ, Gaudron, Gummow and Hayne JJ: The kind of native title rights and interests that have been found to exist in the present case are neither inconsistent with the common law nor with the various assertions of sovereignty made over the area the subject of the claim. There is, however, an inconsistency between the common law and the continued existence of any exclusive rights and interests of the kind that were claimed. The common law will, therefore, recognise claims to offshore native title of the kind the subject of the determination and will do so by affording remedies for the enforcement and protection of those rights and interests. [76]

7. Per Kirby J: In order to be recognised and protected under the Native Title Act, native title rights and interests must be of a type that the common law of Australia will recognise. The Act should be considered as a whole, and should be recognised as not a mere codification of the common law but as expansion of and supplement to that law. In keeping with the purpose of the Act, it should be given a beneficial construction, allowing the propositions advanced by Mabo to be expanded and developed when applied to different types of customary title. Applying a purposive reading to the Act, it is clear that it enables the recognition of offshore native title. Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1; Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1; R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 applied. [249]–[262]

8. Per Kirby J: In giving expression to the common law to the extent that it is given effect by the Native Title Act, it is no longer sufficient or even necessarily relevant to refer to English sources of law. The principles of international law are more persuasive sources of law in resolving questions about whether the common law can recognise exclusive native title in the claimed area. Norms of international law recognise the importance of preserving and protecting the traditional culture and society of indigenous peoples. Further, the principle of non-discrimination in international law must include a recognition that the culture and laws of indigenous peoples adapt and evolve to modern ways of life. If it were proved that the claimants enjoyed exclusive rights over the claimed area under their traditional laws and customs, they should be accorded the same entitlements as any other Australians with exclusive property rights. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 applied. South West Africa Cases (Second Phase) [1966] ACJ Rep 3; Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337; 3 AILR 180 considered. [292]–[300]

9. Per Gleeson CJ, Gaudron, Gummow and Hayne JJ: The Commonwealth’s challenge to Justice Olney’s findings of fact regarding the boundaries of the claimed area is dismissed. [77]–[80]

10. Per Gleeson CJ, Gaudron, Gummow and Hayne JJ (Kirby J dissenting): The claimants’ challenge to the trial judge’s finding that their native title rights and interests did not amount to exclusive possession is dismissed. It is not open to the court to overturn Justice Olney’s findings of fact on this issue. Moreover, the common law public rights of fishing and navigation and the right of innocent passage make it impossible to assert an exclusive native title right to the claimed area. [81]–[100], [267]–[291]

Gleeson CJ, Gaudron, Gummow and Hayne JJ:

1. Croker Island lies to the north of Cobourg Peninsula, a promontory of land at the north-western tip of Arnhem Land in the Northern Territory. Mary Yarmirr and others, on behalf of a number of clan groups,[1] applied under the Native Title Act 1993 (Cth) (‘the Act’) for determination of native title in respect of an area which the application said ‘may generally be described as the seas in the Croker Island region of the Northern Territory’. (It is convenient to refer to the applicants and those whom they represented as ‘the claimants’.) ...

Proceedings at first instance

2. The application was heard and determined in the Federal Court of Australia.[2] The primary judge (Olney J) determined that native title exists in relation to the sea and sea-bed within an area described in the determination, an area which, for present purposes, may be taken to be generally similar to the area claimed. It was determined that, where the area abuts the coast of an island or the mainland, the sea-bed in relation to which native title exists ends at the mean low-water mark, and the seas in relation to which those rights exist are the waters above that sea-bed and the waters above the inter-tidal zone adjacent to that sea-bed (being an area ending at the mean high-water mark). It was determined that the native title rights and interests ‘do not confer possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area to the exclusion of all others’. The determination further provided that:

5. The native title rights and interests that the Court considers to be of importance are the rights and interests of the common law holders, in accordance with and subject to their traditional laws and customs to —
(a) fish, hunt and gather within the claimed area for the purpose of satisfying their personal, domestic or non-commercial communal needs including for the purpose of observing traditional, cultural, ritual and spiritual laws and customs;

(b) have access to the sea and sea-bed within the claimed area for all or any of the following purposes:
(i) to exercise all or any of the rights and interests referred to in subparagraph 5(a)

(ii) to travel through or within the claimed area;

(iii) to visit and protect places within the claimed area which are of cultural or spiritual importance;

(iv) to safeguard the cultural and spiritual knowledge of the common law holders.

(In the course of argument of the present appeals there was no discussion about what was meant by pars 5(b)(iii) and (iv) or how effect might be given to a right of access to ‘protect’ places or ‘safeguard’ knowledge. We say nothing about such issues.)

3. The determination provided that the native title is held by the Aboriginal peoples who are the yuwurrumu[3] members of the Mandilarri-Ildugij, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans. Nothing was said to turn on the disconformity between this description of the native title holders and the description given in the application for determination. It may therefore be put aside.

Appeals to the Full Court

4. From this determination both the claimants and the Commonwealth appealed to the Full Court of the Federal Court. The Commonwealth contended that, because the claimed area was the sea and the sea-bed, no native title exists within that claimed area. The claimants contended that the native title rights and interests they hold confer possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area to the exclusion of all others. Both the Commonwealth and the claimants made a number of other contentions but for the moment they need not be noticed. By majority, the Full Court of the Federal Court (Beaumont and von Doussa JJ; Merkel J dissenting) dismissed both appeals.[4] Merkel J was of the opinion that the Commonwealth’s appeal failed but considered that the claimants’ appeal should be allowed and the proceeding remitted for further hearing by the primary judge. By special leave the Commonwealth and the claimants now each appeal to this Court.

The Act

5. The application for determination of native title was made under the Act as it stood before the amendments made by the Native Title Amendment Act 1998 (Cth) came into force. It was common ground that the amendments have no application in the present matter. There are several provisions of the Act to which reference should be made at this point.

6. First, it is necessary to notice the territorial application of the Act. Section 6 provides that the Act extends to each external Territory of the Commonwealth and ‘to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973’. ‘Coastal sea’ has the meaning it is given by s 15B(4) of the Acts Interpretation Act 1901 (Cth)[5] and thus, in relation to Australia, means the territorial sea of Australia and the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory. By s 6 of the Seas and Submerged Lands Act 1973 (Cth) it was declared and enacted that sovereignty in respect of the ‘territorial sea of Australia’[6] and ‘in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth’. Section 7 of the Seas and Submerged Lands Act, as originally enacted, empowered the Governor-General from time to time, by Proclamation, to declare, not inconsistently with Section II of Part I of the Convention on the Territorial Sea and the Contiguous Zone done at Geneva on 29 April 1958, the limits of the whole or any part of the territorial sea. (In 1994 the Seas and Submerged Lands Act was amended to take account of, and refer to, the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.)[7] By s 11, it was declared and enacted that the sovereign rights of Australia as a coastal state in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.

7. It must next be noted that the objects of the Act include providing for ‘the recognition and protection of native title’.[8] In so far as the Act provides for protection of native title it can be seen as supplementing the rights and interests of native title holders under the common law of Australia and thus, in this way at least, giving effect to one of the purposes of the Act recorded in its preamble. Section 11(1) of the Act and its provision that native title is not able to be extinguished contrary to the Act is, perhaps, the most important of the Act’s protection provisions.[9] It is of the first importance, however, to recognise that it is in the Act that the rights and interests which are claimed by the claimants must find reflection. The relevant starting point for determining the controversies in the present matters is the Act.

8. It is also necessary to notice some of what the Act refers to in the heading to Div 2 of Pt 15 as ‘Key concepts’, especially those of ‘native title’ and ‘native title rights and interests’. Section 223 provides:

(1) The expression ‘native title’ or ‘native title rights and interests’ means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.


(2) Without limiting subsection (1), ‘rights and interests’ in that subsection includes hunting, gathering, or fishing, rights and interests.

(3) Subject to subsection (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression ‘native title’ or ‘native title rights and interests’.

(4) To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):
(a) in a pastoral lease granted before 1 January 1994; or

(b) in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.

‘Native title holder’ is defined[10] in relation to native title as:

(a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or

(b) in any other case—the person or persons who hold the native title.

A ‘determination of native title’ is defined[11] as a determination of:

(a) whether native title exists in relation to a particular area of land or waters;

(b) if it exists:
(i) who holds it; and

(ii) whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and

(iii) those native title rights and interests that the maker of the determination considers to be of importance; and

(iv) in any case—the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests.

‘Waters’ is defined,[12] unless the contrary intention appears, as including:

(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or

(b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)).

The reference to ‘sea’ in this definition, taken both with the other elements of the definition of ‘waters’ and with the provisions of s 6 of the Act, indicates clearly that the Act is drafted on the basis that native title rights and interests may extend to rights and interests in respect of the sea-bed and subsoil beyond low-water mark and the waters above that sea-bed.

...

Territorial reach of the common law

24. The Commonwealth submitted that ‘[i]t has long been a principle of English common law that the limits of each county and of the realm lie at low-water mark’. This principle, it was submitted, was recognised in R v Keyn,[24] accepted and applied by this Court in New South Wales v The Commonwealth (‘the Seas and Submerged Lands Case’)[25] and accepted and applied by the Supreme Court of Canada in Re Offshore Mineral Rights of British Columbia.[26]

...

26. The question in Keyn was, therefore, a question about the jurisdiction of a criminal court. The word ‘jurisdiction’ was used as identifying whether the subject-matter of the proceeding could be entertained by the particular court, not as describing the amenability of the defendant to the court’s authority.[27]

...

34. If the contention that the common law does not ‘extend’, ‘apply’, or ‘operate’ beyond low-water mark is intended to mean, or imply, that, absent statute, no rights deriving from or relating to events occurring or places lying beyond low-water mark can be enforced in Australian courts, it is altogether too large a proposition and it is wrong. The territorial sea is not and never has been a lawless province.[51] The courts of England and Wales and the courts of Australia have long since given effect to rights and duties which derive from transactions and events which have occurred in that area. The very existence of the body of Admiralty law denies the generality of a proposition understood in the way we have identified. It suggests at least that the reference to ‘common law’, in the proposition about its reach, is to be understood as restricted to that part of the unwritten law which was administered in the common law courts. Reference to the history of the jurisdictional conflicts between the courts of Admiralty and the common law courts[52] reinforces that view, especially when it is recalled that from 1536[53] the criminal jurisdiction of the Admiralty in relation to crimes at sea was exercised by the judges of the common law courts as commissioners of oyer and terminer.[54]

...

‘Recognition’ of native title rights and interests

40. The requirement in s 223(1)(c), that the native title rights and interests which are claimed are ‘recognised by the common law of Australia’, is not elucidated elsewhere in the Act. It is useful to approach the requirement from two opposite poles: the negative, when will the common law not recognise such rights and interests; and the positive, when will the common law recognise them? At the risk of some over-simplification, the fundamental question which lies behind both of these approaches is a question about inconsistency between the asserted rights and the common law.

...

42. Thus the question about continued recognition of native title rights requires consideration of whether and how the common law and the relevant native title rights and interests could co-exist. If the two are inconsistent, it was accepted in Mabo [No 2] that the common law would prevail. (The central issue for debate in Mabo [No 2] was whether there was an inconsistency.) If, as was held in Mabo [No 2] in relation to rights of the kind then in issue, there is no inconsistency, the common law will ‘recognise’ those rights. That is, it will, by the ordinary processes of law and equity, give remedies in support of the relevant rights and interests to those who hold them.[71] It will ‘recognise’ the rights by giving effect to those rights and interests owing their origin to traditional laws and customs which can continue to co-exist with the common law the settlers brought.

43. With these considerations in mind, we turn to look at the role of ‘radical title’ in the present debate.

Radical title

...

48. Again, however, it is of the very first importance to bear steadily in mind that native title rights and interests are not created by and do not derive from the common law. The reference to radical title is, therefore, not a necessary pre-requisite to the conclusion that native title rights and interests exist. The concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co-exist. To adopt the words of Brennan J in Mabo [No 2],[82] it explains how ‘[n]ative title to land survived the Crown’s acquisition of sovereignty’ over a particular part of Australia.

49. It is, however, not right to say, as the Commonwealth contended, that native title rights and interests cannot exist without the Crown having radical title to the area in respect of which the rights and interests are claimed. This contention gives the legal concept of radical title a controlling role. The concept does not have such a role. It is a tool of legal analysis which is important in identifying that the Crown’s rights and interests in relation to land can co-exist with native title rights and interests. But it is no more than a tool of analysis which reveals the nature of the rights and interests which the Crown obtained on its assertion of sovereignty over land.

50. It by no means follows that it is essential, or even appropriate, to use the same tool in analysing the altogether different rights and interests which arose from the assertion of sovereignty over the territorial sea. In particular, it is wrong to argue from an absence of radical title in the sea or sea-bed to the conclusion that the sovereign rights and interests asserted over the territorial sea are necessarily inconsistent with the continued existence of native title rights and interests. The inquiry must begin by examining what are the sovereign rights and interests which were and are asserted over the territorial sea. Only then can it be seen whether those rights and interests are inconsistent with the native title rights and interests which now are claimed.

...

Sovereignty and the territorial sea

52. It is neither necessary nor appropriate to attempt some comprehensive description, or definition, of the powers, rights and interests which Australia claims, or the Imperial authorities claimed, in respect of the territorial sea. Inquiries about those powers, rights and interests are usually expressed in terms of ‘sovereignty’ but, as long has been recognised that it is notoriously difficult concept which is applied in many, very different contexts.[88] ...

...

57. As a matter of international law, the right of innocent passage is inconsistent with any international recognition of a right of ownership by the coastal state of territorial waters. The nature and extent of the rights of the coastal state over its territorial sea was, as a matter of international law, regarded by Lord Cockburn CJ in Keyn[95] to be still then a matter of controversy and it was thought in 1913 to remain so.[96] Yet as early as 1801 Sir William Scott (later Lord Stowell) recognised in The ‘Twee Gebroeders’[97] that ‘the act of inoffensively passing over [territorial portions of the sea] ... is not considered as any violation of territory belonging to a neutral state — permission is not usually required’.

...

59. What is clear, then, is that at no time before federation did the Imperial authorities assert any claim of ownership to the territorial seas or sea-bed. Great Britain contended that it had sovereignty over the area which the then understanding of international law identified as the territorial sea and that claim was generally conceded by the international community. As was recognised in the Seas and Submerged Lands Case, the acquisition of sovereignty over the territorial sea can be understood as occurring by operation of international law because Great Britain was the internationally recognised nation holding sovereignty over the adjoining land mass.[100]

60. The acquisition of sovereignty can also be understood, from the point of view of municipal law, as a claim made in exercise of the prerogative.[101] The prerogative rights of the Crown in relation to the territorial sea were limited, however, in some important respects. The most relevant of those limitations were the public rights of fishing in the sea and in tidal waters[102] and the public right of navigation. So far as the high seas beyond tidal waters are concerned, both rights might be seen as owing their origin to custom since time immemorial.[103] The public right to fish in tidal waters might be seen as having been preserved by the Magna Carta of John.[104] Whatever may be the origins of those rights, no party or intervener disputed their existence and no party or intervener submitted that the sovereign rights asserted in 1824 did not acknowledge the continuation of those rights.

61. Sufficient has been said about the nature of the sovereignty which was claimed in 1824 to show that at that time (subject to one important qualification) there was no necessary inconsistency between the rights and interests asserted by Imperial authorities and the continued recognition of native title rights and interests. The qualification is required because the rights and interests asserted at sovereignty carried with them the recognition of public rights of navigation and fishing and, perhaps, the concession of an international right of innocent passage. Those rights were necessarily inconsistent with the continued existence of any right under Aboriginal law or custom to preclude the exercise of those rights. It will be necessary to return to this subject in connection with the claimants’ appeal. Other than in this respect, however, there was no necessary inconsistency and there is no need to resort to notions of radical title to explain why that is so. It is revealed by consideration of what is meant by the claim of sovereignty.

The offshore legal regime

62. There have been many changes in the legal regime that has applied to the area the subject of the claim. Of those changes, it is necessary to say little except in relation to the legislation effecting the offshore constitutional settlement.

63. At federation, the territorial sea off the coast of Australia, recognised by international law, extended three nautical miles from low-water mark.[105] In international law, waters on the landward side of the baseline of the territorial sea form part of Australia’s internal waters.[106] For much of the 20th century it was thought that the States had some sovereign or proprietary rights in respect of the territorial sea — the area from low-water mark to three nautical miles out to sea. In the Seas and Submerged Lands Case[107] it was held, however, that the boundaries of the former colonies ended at low-water mark and that the colonies had no sovereign or proprietary rights in respect of the territorial sea. Thereafter, the Commonwealth and States arrived at the offshore constitutional settlement that was reflected in, among other Acts, the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) (‘the NT Powers Act’) and the NT Title Act.

64. By s 5(a) of the NT Powers Act the legislative powers of the Northern Territory Legislative Assembly were extended to the making of

all such laws of the Territory as could be made by virtue of those powers if the coastal waters of the Territory, as extending from time to time, were within the limits of the Territory ...

By s 4(1) of the NT Title Act (which commenced operation more than 12 months after the NT Powers Act)[108] it was provided that:

By force of this Act, but subject to this Act, there are vested in the Territory, upon the date of commencement of this Act, the same right and title to the property in the sea-bed beneath the coastal waters of the Territory, as extending on that date, and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the Territory if that sea-bed were the sea-bed beneath waters of the sea within the limits of the Territory. (emphasis added)

Similar legislation was passed with respect to the States[109] and was ‘designed largely to return to the States the jurisdiction and proprietary rights and title which they had previously believed themselves to have over and in the territorial sea and underlying seabed’.[110] Although the Northern Territory stood in a position different from the States, the terms of the offshore constitutional settlement were extended to it.

65. In September 1985, the Off-shore Waters (Application of Territory Laws) Act came into operation. That Act provided that ‘the laws of the Territory’ (which included present and future laws in force in the Territory, whether written or unwritten and as in force from time to time)[111] ‘have effect in and in relation to the coastal waters of the Territory’.[112] Thereafter, Territory law has applied in the area of the coastal waters of the Territory.

66. In 1990, by Proclamation pursuant to s 7 of the Seas and Submerged Lands Act, Australia extended the limit of its territorial sea from three nautical miles to 12 nautical miles. The baselines from which that territorial sea is drawn were proclaimed in February 1983 and included some straight baselines in the area the subject of the claimants’ claim. It follows that the area of territorial sea claimed by Australia has changed since Great Britain first acquired the territorial sea in the area in 1824. First, there was the extension that followed from the adoption of straight baselines, then the extension from three nautical miles to 12 nautical miles. As was pointed out earlier, however, all of the claimed area now lies within Australia’s territorial sea. Part of the area lies within the territorial limits of the Northern Territory, although on the evidence before him the primary judge was unable to define precisely the extent of the waters within those limits.[113]

67. At or after federation, Australia came to take its place in international affairs and its links with the British Empire changed and dissolved.[114] Those changes did not affect the nature of the sovereignty that was exercised over the territorial sea. From time to time, colonial parliaments, and later the federal Parliament, passed laws regulating various activities in that area. It is not necessary to notice the content of those laws beyond noticing that some laws, like the Petroleum (Submerged Lands) Act 1967 (Cth), provide for the granting of very extensive rights in relation to areas of the sea or sea-bed.[115] The enactment of laws regulating activities in the area constituted the assertion of the right to regulate what was done there but it was not submitted that these acts served to extinguish a native title that had existed until then. As is apparent from what has been said, the submission was put at the higher level of contending that native title could not exist in the offshore area.

68. The Seas and Submerged Lands Act asserted sovereignty over the territorial sea ... and the same rights in respect of the space (including space occupied by water) above that sea-bed’ was vested in the Territory ‘as would belong to the Territory if that sea-bed were the sea-bed beneath waters of the sea within the limits of the Territory’.[119]

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74. As indicated earlier, the area of the territorial sea has changed over time, first by the adoption in 1983 of different baselines and then, in 1990, by the extension from three to 12 nautical miles. It follows that parts of the area the subject of the primary judge’s determination lay outside what were, until those two events, the territorial waters of Australia. Australia’s successive assertions of sovereignty over further areas of the sea and sea-bed leads to no different conclusion about whether the primary judge was right to make the determination he did in relation to those further areas.

75. The rights and interests that are in question have been found to be now possessed under traditional laws and customs. When Australia asserted sovereignty over those further areas, it did so in terms which are not different in any relevant way from the kind of assertion that was made in 1824, except that there can be no doubt that, by the time of the later assertions of sovereignty, the right of innocent passage was conceded. Further, nothing in the then operative legislation, Territory or Commonwealth, leads to any different conclusion. The change of baselines occurred before the NT Title Act and the Off-shore Waters (Application of Territory Laws) Act came into operation. The extension of sovereignty to 12 nautical miles took place after those Acts came into force. Once it is recognised that the NT Title Act vested in the Territory a title to the sea-bed in territorial waters, and the space above it, that was no greater than a radical title, it is clear that nothing in that Act (or for that matter the Off-shore Waters (Application of Territory Laws) Act) effected an extinguishment of native title rights and interests.

76. None of the past or present law relating to the territorial sea is inconsistent with the common law of Australia recognising native title rights and interests in relation to the sea or the sea-bed in that area. For the reasons given earlier, the submissions that assert a territorial reach to the common law require some, perhaps considerable, qualification and may to that extent be regarded as flawed. Even if that were not so, however, questions about the territorial reach of the common law distract attention from the relevant statutory requirements. The requirement, that the native title rights and interests are recognised by the common law, requires examination of whether the common law is inconsistent with the continued existence of the rights and interests that owe their origin to Aboriginal law or custom. In the present case, that examination for inconsistency requires consideration of the effect of the various assertions of sovereignty over the area the subject of the claim. Examination reveals no inconsistency with rights and interests of the kind that have been found to exist, but does reveal an inconsistency with the continued existence of any exclusive rights and interests of the kind that were claimed. That being so, the common law will recognise rights and interests which are of the kind the subject of the determination in this matter and it will do so by affording remedies for their enforcement and protection.

The Commonwealth’s challenge to a finding of fact

77. The Commonwealth submitted that there was no basis in the evidence for the primary judge’s finding that the rights claimed by the claimants continued to exist in the far north-east and eastern parts of the claimed area. It was further submitted that the Full Court erred in concluding that it was open to the primary judge to make findings on ‘generalised’ evidence.

78. The finding which the Commonwealth challenges is a finding of fact and it is a finding which the Full Court concluded should not be disturbed. The Commonwealth’s challenge to the finding raises no point of general principle, only a question about the sufficiency of evidence. The finding which the primary judge made must not be misunderstood. As he pointed out in his reasons, some parts of the boundary of the claimed area had been fixed arbitrarily, in particular the western boundary of the claimed area, and although both the eastern boundary and part of the northern boundary were ‘a reasonable representation’[121] of the limit to which the sea in the area would have been used, the rest of the northern boundary was fixed arbitrarily. Thus, the question for the trial judge was whether the area claimed, defined by those boundaries, extended beyond the area over which native title rights and interests existed. His Honour concluded (he said, as a matter of inference) ‘that the waters within the outer boundary of the claimed area comprise either the whole or part of the sea country of one or other of the several yuwurrumus of the Croker Island community’ (emphasis added).[122] It was, therefore, a finding consistent with the existence of native title rights and interests over areas lying beyond the boundaries of the claimed area.

79. The finding that the primary judge made depended upon an assessment of all of the evidence that was given. If, as the Commonwealth contended, the only evidence which touched on the far north-east and eastern parts of the claimed area was the evidence of Mr Wardaga, a senior Aboriginal spokesman, it was a finding which depended upon an understanding of that evidence, taken on New Year Island, the most north-easterly island in the claimed area, and which was accompanied by the witness pointing out the areas to which he was referring. As the majority of the Full Court rightly pointed out,[123] there can be no doubt that the primary judge was in a much better position to assess this evidence than an appellate court. The Full Court was not persuaded that the primary judge erred in his conclusion. Nor are we.

80. The Commonwealth’s appeal (Matter No D7) should be dismissed with costs.

The claimants’ appeal

81. At trial, the claimants had contended that they were entitled to larger rights and interests than those which the primary judge later found them to have. As has been noted earlier, contrary to the claimants’ submissions, the primary judge found that the claimants’ native title rights and interests do not confer possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area to the exclusion of all others.

82. In their appeal to the Full Court of the Federal Court, the claimants contended that the trial judge had erred, and they sought orders varying the determination to provide that the native title rights and interests included (among others) the right ‘in accordance with and subject to their traditional laws and customs, to ... possess, occupy, use and enjoy the claimed area to the exclusion of all others’. The Full Court rejected that contention and dismissed the claimants’ appeal.

83. In their appeal to this Court, the claimants sought to make good a generally similar contention. Before examining the precise way in which the contention was ultimately formulated, it is necessary to refer, in a little more detail, to what was submitted and what was decided in the courts below.

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The primary judge’s judgment

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92. Counsel for the claimants placed considerable emphasis on this part of the evidence of Ms Yarmirr and submitted that, properly understood, it supported the claim to rights to exclude all others (Aboriginal and non-Aboriginal) from the claimed area. Even if this evidence is capable of bearing the meaning for which counsel contended, it is not the only way in which it can be understood. It fell to be considered against the whole of the evidence which was led in relation to this subject. Pointing to another meaning which this particular part of the evidence could bear falls well short of demonstrating that the finding made by the primary judge was not open.

93. We were taken to no other evidence that would suggest the primary judge was wrong in his understanding of the evidence. In those circumstances, it is not demonstrated that he should have been persuaded of the factual proposition that lay behind the claimants’ contentions that they were entitled under traditional law and custom to exclude, as they chose, anyone and everyone from the claimed area. The Full Court was correct to conclude, as it did, that the claimants failed to demonstrate that the findings made on this subject should be set aside.

94. There is, however, a more fundamental difficulty standing in the way of the claimants’ assertion of entitlement to exclusive rights of the kind claimed. This difficulty stems both from the common law public rights to navigate and to fish and from the international right of innocent passage which is recognised by Australia. These are rights which cannot co-exist with rights to exclude from any part of the claimed area all others (even those who seek to exercise those public rights or the right of innocent passage).

95. Recognising that there may be a difficulty about this aspect of the matter, the claimants sought, in this Court, to accommodate the competing rights by acknowledging the existence of the public rights to navigate and to fish and the right of innocent passage and contending that a determination of native title should be made subject to a qualification recognising those rights.

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98. When that is done in the present case, it is seen that there is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.

99. The successive assertions of sovereignty over what now are territorial waters, without any further or other act of the executive or legislature, brought with them, and gave to the public, the public rights that have been mentioned. The assertion of sovereignty in 1824, over part of those waters, may have conceded the right of innocent passage to all vessels over those waters, and later assertions of sovereignty over other parts of the waters certainly did. Assertion of sovereignty, on those terms, is not consistent with the continuation of a right in the holders of a native title to the area for those holders to say who may enter the area.

100. Although the inconsistency does not arise as a result of the exercise of sovereign power (as is the case where a grant in fee simple extinguishes native title)[131] the inconsistency which exists in this case between the asserted native title rights and the assertion of sovereignty is of no different quality. At its root, the inconsistency lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights.

101. The claimants’ appeal (Matter No D9) should be dismissed with costs.

McHugh J:

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104. In my opinion, neither the Act nor the common law recognises native title rights in respect of land and waters below the low water mark of the Australian coast. The Act does not recognise native title unless the common law recognises it. New South Wales v The Commonwealth,[132] applying R v Keyn,[133] held that the common law of Australia has no operation below the low water mark. Unfortunate and unjust as it will seem to many, the common law does not, and never did, recognise native title rights and interests in respect of the territorial sea, sea-bed or sub-soil because those rights and interests do not fall within the common law’s system of rules, principles and doctrines that it enforces by providing a remedy. It is not enough, as the majority judgment holds in this case, that the existence of rights and interests possessed under traditional laws and customs is not inconsistent with the common law. Recognition is a different concept from consistency or lack of inconsistency.

105. It follows that the appeal by the Commonwealth must succeed, and the appeal by the claimants must be dismissed.

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The construction of the Act

123. In construing the Act, it is necessary to remember the warning that this Court gave in North Ganalanja Aboriginal Corporation v Queensland:[158]

Unless the Act is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued.

124. It is also necessary to keep in mind that, in the Second Reading Speech on the Native Title Bill 1993, the then Prime Minister, Mr Keating, saw Mabo [No 2] as giving Australians the opportunity to rectify the consequences of past injustices.[159] The Act should therefore be read as having a legislative purpose of wiping away or at all events ameliorating the ‘national legacy of unutterable shame’[160] that in the eyes of many has haunted the nation for decades. Where the Act is capable of a construction that would ameliorate any of those injustices or redeem that legacy, it should be given that construction.

125. If the purpose of the Act was to recognise native title in any case where Aboriginal or Torres Strait Island peoples still possessed rights and interests in respect of land or water under their traditional laws or customs, the duty of the courts would be to ensure that that purpose was achieved. That would be so even if it meant giving a strained construction[161] to or reading words[162] into the Act. In an extra-judicial speech, Lord Diplock once said that ‘if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed’.[163]

126. However, the natural and ordinary meaning of the Act indicates that it is not the purpose of the Act to recognise rights and interests under the traditional laws and customs of the Aboriginal and Torres Strait Island peoples unless the common law recognised those rights and interests when sovereignty over the relevant area was acquired.

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128. Thus, when an application is made for a determination of native title, it is the possession or non-possession of those concrete rights that is in issue. But it is only when the common law recognises those rights and interests that they answer the description of ‘native title’. Section 223(1)(c) expressly declares that native title or native title rights and interests means rights and interests that ‘are recognised by the common law of Australia’. Consequently, it can only be referring to the concrete rights that are in issue in particular proceedings. It is those particular rights that must be recognised by the common law, whether they exist on the mainland, the external territories, the coastal sea or any waters over which Australia asserts sovereign rights.

129. The reference in s 6 to ‘waters’ over which Australia asserts ‘sovereign rights’ under the Seas and Submerged Lands Act is curious. The sovereignty of a state extends only ‘to a belt of sea adjacent to its coast, described as the territorial sea’.[164] Beyond the territorial sea lie the high seas over which no nation has sovereignty. International law recognises, however, that a nation has rights in respect of its continental shelf even where that shelf extends beyond the boundaries of the territorial sea. In respect of its continental shelf, a nation has ‘sovereign rights’ to exploit the sea-bed and its sub-soil. In 1953, Australia declared that it had sovereign rights over its continental shelf.[165] But it has no sovereignty over the waters or area beyond the territorial sea boundary.[166] Consistent with its international obligations, Australia might declare native title over the sea-bed and sub-soil. But as at present advised, I am not persuaded that, consistently with international law, it could do so over any part of the high seas. If I thought that it was possible to read the Act as declaring that native title existed over the high seas, I think that it would be necessary to read the Act down to be consistent with Australia’s obligations in international law.

130. That the Act ‘extends’ to the coastal sea of Australia and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act does not mean that the Act is declaring that the Aboriginal and Torres Strait Island peoples have rights and interests over those areas. After all, the Act also ‘extends’ to ‘each external Territory’, areas where there may be no such rights or interests. To my mind, the certainty of this conclusion can only be doubted by commencing with the premise — which I have rejected — that the Act intended to recognise native title over the territorial sea irrespective of whether the common law recognised it.

131. Given the definition in s 223 and despite the declaration in s 6 of the Act, therefore, the natural and ordinary meaning of the Act is that it protects and enhances traditional and customary rights and interests where, but only where, the common law recognises them.

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Native title rights in respect of the territorial sea or sea-bed

179. However, the common law of this country does not recognise any rights or interests that the indigenous inhabitants possess under their traditional laws and customs in respect of the territorial sea or sea-bed. The common law does not operate outside the realm. The boundary of the realm is the low water mark.[211] Dominion over the territorial sea and sea-bed is the province of the Parliament, not the common law.

180. In Keyn,[212] a majority of the Court of Crown Cases Reserved held that the Central Criminal Court had no jurisdiction to try a charge of manslaughter brought against the Captain of a foreign ship involved in a collision within three miles of the shore of England. It was an essential step in the reasoning of the Court that the common law did not apply beyond the territorial limits of England and that the sea-bed and waters below the low water mark were not part of the territory of England.

181. Keyn cannot be dismissed, as the majority judgment in this case purports to do, by asserting that it was concerned with the jurisdiction of a criminal court.[213] That proposition was accepted by the dissenters in New South Wales v The Commonwealth.[214] But the majority rejected it.[215] Consequently, New South Wales v The Commonwealth establishes for Australia that no rule of the common law governs or could govern the title to the sea-bed or the superjacent sea below the low water mark.[216] The land below the low water mark is not the subject of the doctrine of tenures and estates, and because this is so, the Crown does not possess radical title to the sea-bed or the superjacent waters.[217]

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The arguments of the claimants

209. The claimants and the interveners supporting them argued that the common law would enforce the rights and interests of the Aboriginal and Torres Strait Island peoples in the territorial sea and sea-bed. The claimants submitted that under the common law the real question was whether native title rights over offshore places, derived from traditional laws and customs, survived the acquisition of sovereignty. But their arguments failed to acknowledge that it is not the acquisition of sovereignty over a territory that leads to the recognition of native title rights. It is the bringing of the common law to the territory. The rights and interests of indigenous people in respect of land survive the acquisition of sovereignty because the common law — when it is brought to the territory — burdens the radical title of the Crown with those rights and interests. While that burden exists, the common law permits any right or interest, possessed under the traditional laws of the indigenous people, to be enforced in the common law courts. The burden ceases when the Crown disposes of an interest in its radical title in a manner that is inconsistent with the enforcement of the native title right or interest.

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216. Without the intervention of federal Parliament, no one can acquire a legal right in relation to the territorial sea, sea-bed and sub-soil that the common law courts can enforce. It is erroneous to suggest, as the claimants do, that sovereignty in the territorial sea carries with it judicial power to protect and enforce private rights and interests in respect of the territorial sea and sea-bed. As I have explained, the Aboriginal and Torres Strait Island peoples have no sovereignty over the seas; nor are their rights and interests inherently enforceable in the common law courts. Nor does international law recognise them as being a burden on the sovereignty that a coastal state has over its territorial sea.

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Kirby J:

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249. In resolving questions for the determination of native title rights and interests, it is always necessary to focus first on the Act itself. Whilst the common law provides the background against which the Act operates,[314] and is referred to in the Act,[315] the Act itself must be construed according to its terms, taken as a whole[316] and having regard to its beneficial purpose.[317] Such an approach recognises that the Act is not confined to a codification of the common law[318] but has given rise to an extensive scheme of recognition and protection (and extinguishment and impairment) that may operate to change the common law.[319] It also supplements and reinforces the common law.[320]

250. The Act’s application to sea country: That the Act expressly contemplated, and allowed for, the recognition of ‘native title’ and ‘native title rights and interests’ in respect of the sea country of persons such as the claimants is shown by the definition contained in s 223. ...

251. ...Thus, s 253 defines ‘waters’ as including:

(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or

(b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)).

252. This definition is not limited to inland waters and those within Australia’s baselines. Section 6 of the Act expressly extends the Act in the following way:

This Act extends to each external Territory, to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973.

‘Coastal sea’, defined by the Acts Interpretation Act 1901 (Cth),[324] means the territorial sea of Australia. At the time of enactment of the Act, Australia’s territorial sea extended to 12 nautical miles from the relevant baselines.[325]

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258. I do not read the words ‘recognised by the common law’ as abdicating the powers and stated objects of the legislation to protect and uphold native title rights and interests. I interpret this phrase as incorporating the ongoing relationship between the common law and the Act, grounded on the propositions advanced by Mabo [No 2], and acknowledging that those propositions need to expand and develop when applied to different customary title. This beneficial construction is in keeping with the purpose which the Act was intended to serve.[337] ...

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The claimants’ appeal and the power of exclusion

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270. Primary judge’s determination: The foregoing qualifications on the claimants’ asserted ‘rights and interests’ are consistent with the holding of the primary judge that the claimants’ native title rights and interests did not ‘confer possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area to the exclusion of all others’,[356] so far as his Honour rested his finding on the paramountcy of the rights of passage and navigation and of pre-existing statutory fishing licences. I will deal with each of these non-exclusive rights in turn.

271. The claimants go further than the primary judge in seeking ‘qualified exclusive’ native title rights and interests, which can be exercised to exclude persons from accessing the area for other purposes, including, relevantly, those seeking to exercise public fishing rights or other rights to extract resources from the determination area. The key issue presented by the claimants’ appeal therefore concerns whether a qualified power of exclusion (that is, a power to exclude persons entering the determination area for some purposes but not for others) is recognised by the law. This question must be resolved in accordance with the Act and the basis for recognition (and non-recognition) by the common law provided by the Act. A necessary influence will be the acknowledgment that, where possible, the question must be resolved in favour of full recognition of an existing customary right.[357] A further influence will be the consideration of any relevant international human rights norms which protect indigenous peoples against a discriminatory legal denial of their rights and interests. But recognition will not be accorded where to do so would be incompatible with a basic principle of the common law.

272. International right of innocent passage: The first basis upon which the primary judge rejected the claimants’ assertion of the power of exclusion was that such a claim was inconsistent with the right of innocent passage under international law. The right of innocent passage through the territorial sea of Australia is recognised in conventional[358] and customary international law.[359] It has been incorporated in Australian legislation and preserved in Australia’s decision to extend its territorial sea from three nautical miles to 12 nautical miles.[360] That extension was expressly stated to be subject to the right of ships of all nations to innocent passage through the territorial sea.[361] Thus, whilst there is potential for proprietary interests to be created by the Commonwealth in the sea-bed in its exercise of territorial sovereignty,[362] these interests would appear to be subject to the right of innocent passage. The power of the common law to recognise such an interest is likewise so limited. The right of innocent passage allows ships of all states to navigate expeditiously and continuously in order to traverse the sea and to proceed in like manner to or from internal waters. Such a right is prima facie inconsistent with a right of native title holders to exclude all persons from large areas of the title holders’ sea country.

273. It was therefore correct for the claimants to concede that any native title right to sea country must be subject to the foregoing rule of international law. It remains for this Court to ascertain what, if any, scope remains for the recognition of a ‘qualified exclusive’ native title right.[363] Considerations in favour of recognition, coupled with the demonstrated capability of the common law to recognise exclusive interests in territorial sea waters subject to the international principle,[364] lead inevitably to a conclusion that a general right of passage through an area of sea does not necessarily defeat all other legal rights within that area to control access and exclude others.

274. As a matter of practicality, a right to exclude persons from entering waters can be exercised for some purposes and not for others. For persons entering the waters ‘innocently’, for the prescribed purposes of accessing internal waters and land, the rights of native title holders must give way. But just as a coastal nation may take steps to prevent passage which is not innocent,[365] so too holders of a recognised native title could do so without doing any offence to the international rule. Innocent passage is defined by reference to its objectives. It is conceivable that persons acting outside of these objectives (the most obvious example being to access fishing and other natural resources in the determination area) could be obliged to seek permission from native title holders, just as they are now subject to lawful regulation by the littoral state.

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278. Common law right of navigation: The second qualification conceded by the claimants relates to the common law right of the public to navigate in tidal waters. This is analogous to the international right of innocent passage. It is founded on the same principles of freedom of movement and access. The common law right includes a right to pass and repass over the water and includes a right of anchorage, mooring and grounding where necessary in the ordinary course of navigation.[379] It prevails over exclusive fishing rights when the two conflict.[380] It can be described as a foundational principle of the common law.[381] It can only be modified by statute. No right of a private person, however long enjoyed, can extinguish it.[382]

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281. A recognition of a public right of access would be unsurprising in relation to certain (exclusive) common law land tenures.[386] It should not be prevented from operating in relation to the sea. If, as has been accepted by the majority of this Court, the Act and the common law recognise native title rights and interests to the sea, it would be incongruous for the general right of navigation to operate as a blanket refutation of such recognition, where the incidents of traditional law and custom and connection to the sea otherwise demonstrate ‘exclusive’ elements in particular native title rights and interests. It is for the courts to recognise ‘exclusive’ rights if they are found to exist as a matter of fact. The common law public right to navigate does not, as a matter of law, extinguish all otherwise exclusive elements of native title, where as a matter of fact these continue to exist.[387]

282. The common law right to navigate is different in character and strength from the common law right to fish. The latter ceases to exist in areas where there are proprietary rights.[388] It may also be limited by statute.[389] Whilst the public right to navigate is based on the principle of freedom of movement across waters, the principle behind the public right to fish is based on the (now unscientific) notion that uncontrolled catching of fish in sea areas cannot diminish the stock. The claimants do not concede the right of others to fish in the determination area except in accordance with licences granted under valid legislation. As will be shown later in my reasons,[390] I agree with Merkel J that, in an area of pre-existing native title, the common law right of the public to fish may operate subject to, and be defeated by, the underlying native title rights and interests in the claimants’ sea country.

283. Statutory fishing licences: The claimants’ third qualification relates to the exercise of rights of holders of fishing licences, validly granted under statute, to enter the waters of the determination area.[391] These licences are granted for a specific time and may be subject to conditions in respect of particular areas, species, quantities and fishing methods. Such a grant is greater than, and distinguishable from, the public’s common law right to fish.[392] In Australian land law, it is recognised that a statutory grant of a licence for certain purposes does not necessarily detract from the ‘exclusive’ nature of freehold title to the same area.[393] I see no reason of principle or policy why such a grant of non-exclusive fishing licences is inconsistent with the continued right of the claimants to enjoy a residue of exclusive elements of their native title rights and interests. Indeed, consistently with the principles accepted by the majority of this Court in Wik,[394] whilst the specific rights of the licence holders prevail over the traditional entitlement of the claimants to control access to, and use of, the resources of their sea country, the underlying elements of native title are not extinguished. The two may coexist. If they can coexist in law in the vastness of pastoral leases of outback Queensland, I fail to see why they cannot coexist in law in the vastness of a given sea country.

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The qualified power to exclude

285. Three accepted qualifications: It follows that the above three qualifications do not extinguish otherwise exclusive native title rights and interests. As the claimants submitted, rights of passage and navigation and rights of fishing under statutory licences are all rights ‘defined and limited by purpose’. Although extensive, such purposes do not by any means cover all the potential activities and uses of the claimed waters. A power to exclude, for example, persons who move through the waters of the determination area in order to fish without licence, to conduct tourist activities or to extract natural resources without the consent of the native title holders remains a very significant power. Such a power is currently exercisable by the Northern Territory (up to three nautical miles) and the Commonwealth, subject to the recognition of pre-existing exclusive native title rights in the determination area.[398] The rights which the claimants assert in these proceedings are similar. Viewed apart, they appear completely reasonable. But does the law recognise and uphold them? The other members of this Court think not. I disagree.

286. A proprietary right: The claimants assert ‘qualified exclusive’ native title rights and interests to waters, as that term includes the sea, sea-bed or subsoil beneath the sea and airspace over the sea.[399] Following Yanner,[400] such a right is proprietary in nature, in the sense that the right to exclude others from, and to control access to, a resource produces a proprietary relationship. The common law has recognised a proprietary community title. It has done so in the face of significant difficulties of proof of boundaries, of membership of the community and of representatives of the community.[401] So much is as clear for the sea as for the land.[402] Modern approaches to the concept of property, embraced by the common law and this Court,[403] acknowledge this possibility. I agree with Merkel J[404] that the former uncertainty as to the ability of the Crown to assert proprietary rights in the sea-bed of the territorial sea, expressed outside of the context of the special status of native title under the common law and the Act,[405] does not defeat this proposition.

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290. I therefore agree with Merkel J that there is scope for the survival of a native title right, equivalent to a pre-existing exclusive fishery, established in accordance with the traditional laws and customs of the indigenous peoples.[415] In this situation, the general right of the public to fish, although recognised by the common law, is subservient to a right akin to an exclusive fishing right, founded on native title and recognised by the Act and the common law. I do not find that there is a ‘fundamental inconsistency’[416] between the two. This is because the common law has historically been capable of sustaining exclusive rights in the sea. Where it does so, public rights of navigation continue but public rights of fishing are no longer exercisable. The conflict between titles[417] is between native title containing a right to exclude access for certain purposes and a general public title to fish, the latter being inherently subject to rights in exclusive fisheries and rights conferred by legislation.

291. To extinguish legal rights, legislation said to have that effect must be completely clear.[418] The same must be true in relation to a rule of the common law. If the common law is ambiguous and coexistence of rights is possible, extinguishment of the rights of some, but not others, will not have been clearly demonstrated. The rights will survive.

292. The use of international principles: In resolving the problem of legal recognition of continuing exclusive elements of native title in the sea (where exclusive enjoyment can be proved as a fact to exist) there are new sources to inform the content of the common law of Australia, including as that expression is used in the Act. Those sources assist in the resolution of ambiguous provisions in Australian legislation or gaps in the common law of Australia.[419] While it has been demonstrated that the common law, inherited from England, is capable, in certain circumstances, of recognising exclusive rights in the sea, I regard international principles as an even more persuasive source in a decision about whether certain exclusive rights in the determination area may be recognised by the common law in the present context.

293. A critical step in the reasoning of Brennan J in Mabo [No 2], with whom Mason CJ and McHugh J agreed, was the one that ultimately sustained the move by this Court to a new principle of the common law of Australia in respect of native title. This was explained in the following oft-cited passage of Brennan J’s reasons:[420]

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule.

294. Expositions of international law, concerned with fundamental human rights, repeatedly stress the impermissibility of discrimination and unequal treatment of people on the grounds of their race.[421] This norm has particular relevance to Australian law both because Australia is a party to the International Convention on the Elimination of All Forms of Racial Discrimination[422] and because the Federal Parliament has enacted a law to give effect to the requirements of that Convention.[423]

...

297. In giving expression to the common law of Australia, to the extent that, in the present context, it is given effect by the Act, it is no longer sufficient, or even necessarily relevant, in my respectful opinion, to refer to English sources of law; still less to be constrained by that law. The recognition of the rights to land and to waters and fishing resources of indigenous peoples is now an international question. It is one that concerns, but is not confined to, the several nations settled at one time under the British Crown.[427] It is therefore at least as relevant (and will sometimes be more helpful) to have regard to the requirements of international law as a ‘legitimate and important influence on the development of the common law’[428] as it is to consider the old cases expounding the common law of England.

...

300. Conclusion: The common law as re-expressed in Mabo [No 2] and incorporated in the Act, and as informed by norms of international law and supported by the analogy to exclusive fisheries, is able to recognise certain exclusive rights in relation to the sea. When the norms of international law are invoked, they forbid the existence of exclusive title in the high seas — which are part of the common heritage of humanity. But no such claim is made here. They also forbid extinguishment of title on the basis of rules which discriminate against people on racial grounds. This is the point that Mabo [No 2] teaches. It is applicable to the claimants’ sea country here as it was to land country in Mabo [No 2] and in Wik.

...

Callinan J:

...

The Act

...

350. ... There was, however, an alternative submission which, in my opinion, is more persuasive. It is that unless and until sovereignty is exercised over the territorial sea, relevantly here by the conferring of rights, interests and titles in respect of it, there is and can be no title or possessory right in respect of it, and what lies above or below it.[487] The issue that the argument presents is not whether native title depends upon the existence of underlying prior radical title, but simply whether until sovereign assertion and the exercise of sovereign power to define and confer rights and interests including titles, there can be any title or proprietary or personal rights or interests of any kind in the territorial sea.

The common law and the territorial sea

351. Although the ultimate question in R v Keyn[488] was whether the Central Criminal Court had jurisdiction to try the foreign captain of a foreign ship, which had, within three miles of the shore of England run down a British ship, in consequence of which a passenger on the latter died, there were much broader and important matters decided by the case.

...

359. Over time, however, Keyn came to be accepted as standing for the proposition that the Crown had no ownership of territory beyond the low water mark, absent an exercise of sovereign power in that regard, over, but confined to the territorial sea, which was, historically, the waters within theoretical range of a cannon shot,[500] three nautical miles from the low water mark.

360. Doubts, if any, as to what Keyn decided and its application in this country were put to rest in the Seas and Submerged Lands Case,[501] in which a majority of this Court (Barwick CJ, McTiernan, Mason, Jacobs and Murphy JJ) clearly affirmed it and adopted the reasoning of the majority in it.

361. Barwick CJ stated that any colonial claims to property in, or rights over the territorial sea were unsustainable:[502]

No power over Imperial territorial waters was granted expressly or impliedly. The colonists inherited the common law: but it operated only in the realm which ended at low-water mark. This was decided in Reg v Keyn,[503] a decision with which I respectfully agree. See also Harris v Owners of Franconia[504] and Blackpool Pier Co Ltd v Fylde Union.[505] Thus, property in and power over the territorial seas could not have come by the common law.

362. Mason J referred to the cases in which different opinions had been expressed from those of the majority in Keyn and then said this:[506]

To the extent to which these observations are at variance with what was decided in Keyn’s Case they do not in my opinion accurately reflect the law as it stood in 1900. They carry overtones of the ancient doctrine, enunciated by Selden and Hale, that the narrow seas were within the territorial sovereignty of the King, a doctrine which was then obsolete. They fail to acknowledge, as did the majority in Keyn’s Case, that the territorial sea is a distinct concept which owes its origin, development and elaboration to international law and that it has been incorporated into British municipal law not as a supplement to the old notion of territorial sovereignty, but quite independently of it.

363. One other observation by Mason J in the Seas and Submerged Lands Case should be noted:[507]

Once it is accepted that the boundaries of the Colonies terminated at low-water mark there is in my opinion no reason why the Commonwealth’s power to make laws with respect to ‘external affairs’ (s 51(xxix)) should not be regarded as conferring upon it a plenary power to legislate upon the topic of the territorial sea and its solum (emphasis added).

364. It must be acknowledged, therefore, that as a result of the acceptance of the application of the principles of international law with respect to the high seas, and, as Mason J said,[508] their incorporation into British municipal law, those principles have now come to be part of the common law of this country. They establish that unless and until, by an exercise of sovereignty, dominion is actually asserted, and rights, titles and interests are expressly conferred by the sovereign authority, the common law does not recognise any other rights, titles or interests claimed in or in respect of territorial waters and what lies above and below them. It follows that the common law does not and cannot recognise any of the rights claimed by the claimants in respect of what lies beyond the low water mark in this case: a critical requirement of s 223 of the Act has therefore not been met.

...

Order

The appeals are dismissed with costs.

Matter No D7/2000

Counsel for the Appellant:

D M J Bennett QC, Solicitor-General of the Commonwealth and M A Perry and S B Lloyd with J S Stellios

Solicitor for the Appellant:

Australian Government Solicitor

Counsel for the first and ninth Respondents:

J Basten QC with K R Howie SC and S A Glacken

Solicitor for the first and ninth Respondents:

Northern Land Council

Counsel for the second Respondent:

T I Pauling QC, Solicitor-General for NT with R J Webb

Solicitor for the second Respondent:

Solicitor for NT

Counsel for the third, fourth, fifth, sixth and seventh Respondents:

G E Hiley QC with N J Henwood

Solicitor for the third, fourth, fifth, sixth and seventh Respondents:

Cridlands Lawyers

Counsel for the eighth Respondent:

No appearance

Counsel intervening on behalf of the A-G (WA):

R J Meadows QC, Solicitor-General forWA with K M Pettit

Solicitor intervening on behalf of the A-G (WA):

Crown Solicitor for WA

Counsel intervening on behalf of the A-G (SA):

B M Selway QC, Solicitor-General for SA with S E Carlton

Solicitor intervening on behalf of the A-G (SA):

Crown Solicitor for SA

Counsel intervening on behalf of the Mirimbiak Nations Aboriginal Corp:

B A Keon-Cohen QC with C F Thomson

Solicitor intervening on behalf of the Mirimbiak Nations Aboriginal Corp:

Mirimbiak Nations Aboriginal Corp

Counsel intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corp:

G M G McIntyre with G M Irving and D L Ritter

Solicitor intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corp:

Yamatji Barna Baba Maaja Aboriginal Corp

Counsel intervening on behalf of the Kimberley Land Council:

G M G McIntyre

Solicitor intervening on behalf of the Kimberley Land Council:

Kimberley Land Council

Counsel intervening on behalf of the Lardil, Kaiadilt Yangkaal and Gangalidda Peoples:

D F Jackson QC with S J Gageler SC

Solicitor intervening on behalf of the Lardil, Kaiadilt Yangkaal and Gangalidda Peoples: Chalk & Fitzgerald

Matter No D9/2000

Counsel for the Appellants:

J Basten QC with K R Howie SC and S A Glacken

Solicitor for the Appellants:

Northern Land Council

Counsel for the first Respondent:

T I Pauling QC, Solicitor-General for NT with R J Webb

Solicitor for the first Respondent:

Solicitor for NT

Counsel for the second Respondent:

D M J Bennett QC, Solicitor-General of the Commonwealth and M A Perry and S B Lloyd with J S Stellios

Solicitor for the second Respondent:

Australian Government Solicitor

Counsel for the third, fourth, fifth, sixth and seventh Respondents:

G E Hiley QC with N J Henwood

Solicitor for the third, fourth, fifth, sixth and seventh Respondents:

Cridlands Lawyers

Counsel for the eighth and ninth Respondent:

No appearance

Counsel intervening on behalf of the A-G (WA):

R J Meadows QC, Solicitor-General for WA with K M Pettit

Solicitor intervening on behalf of the A-G (WA):

Crown Solicitor for WA

Counsel intervening on behalf of the A-G (SA):

B M Selway QC, Solicitor-General for SA with S E Carlton

Solicitor intervening on behalf of the A-G (SA):

Crown Solicitor for SA

Counsel intervening on behalf of the A-G (Queensland):

H B Fraser QC with P J Flanagan

Solicitor intervening on behalf of the A-G (Queensland):

Crown Solicitor for Queensland

Counsel intervening on behalf of the Kimberley Land Council:

G M G McIntyre

Solicitor intervening on behalf of the Kimberley Land Council:

Kimberley Land Council

Counsel intervening on behalf of the Lardil, Kaiadilt Yangkaal and Gangalidda Peoples:

D F Jackson QC with S J Gageler SC

Solicitor intervening on behalf of the Lardil, Kaiadilt Yangkaal and Gangalidda Peoples:

Chalk & Fitzgerald






[1] Described in the amended Native Title Determination Application as the Mandilarri-Ildugij, Mangalarra, Muran, Gadurra, Minaga, Ngayndjagar and Mayorram peoples.

[2] Yarmirr v Northern Territory [No 2] (1998) 82 FCR 533.

[3] A group of people who trace or claim descent through the male line.

[4] Commonwealth of Australia v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171.

[5] s 253.

[6] Seas and Submerged Lands Act 1973 (Cth), Pt II, Div 1.

[7] Maritime Legislation Amendment Act 1994 (Cth).

[8] s 3(a).

[9] Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at 453, 468 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.

[10] s 224.

[11] s 225.

[12] s 253.

[24] (1876) 2 Ex D 63.

[25] [1975] HCA 58; (1975) 135 CLR 337. See also Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177 at 184 per Barwick CJ, 218–219 per Windeyer J; R v Bull [1974] HCA 23; (1974) 131 CLR 203 at 219 per Barwick CJ.

[26] [1966] INSC 207; [1967] SCR 792 at 804–805. See also Re Newfoundland Continental Shelf [1984] 1 SCR 86.

[27] cf Lipohar v The Queen (1999) 200 CLR 485 at 517 [79] per Gaudron, Gummow and Hayne JJ; Marston, ‘Crimes on Board Foreign Merchant Ships at Sea: Some Aspects of English Practice’, (1972) 88 Law Quarterly Review 357 at 360.

[51] Post Office v Estuary Radio Ltd [1968] 2 QB 740 at 754 per Diplock LJ.

[52] Mears, ‘The History of the Admiralty Jurisdiction’, in Select Essays in Anglo-American Legal History, (1908), vol 2 at 312–364; Prichard and Yale, Hale and Fleetwood on Admiralty Jurisdiction, Selden Society, (1992), vol 108 at xlvii–lviii.

[53] 28 Hen 8 c 15.

[54] Holdsworth, A History of English Law, 7th ed (1956), vol 1 at 550–552.

[71] [1992] HCA 23; (1992) 175 CLR 1 at 61 per Brennan J (Mason CJ and McHugh J agreeing). See also at 88–90 per Deane and Gaudron JJ.

[82] [1992] HCA 23; (1992) 175 CLR 1 at 69; see also at 48, 50 and Wik Peoples v Queensland (1996) 187 CLR 1 at 186 per Gummow J, 234 per Kirby J.

[88] New South Wales v The Commonwealth (‘the Seas and Submerged Lands Case’) [1975] HCA 58; (1975) 135 CLR 337 at 479 per Jacobs J; H W R Wade, ‘The basis of Legal Sovreignity’. (1955) Cambridge Law Journal 172.

[95] (1876) 2 Ex D 63 at 191–193.

[96] Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 at 174–175.

[97] [1801] EngR 502; (1801) 3 C Rob 336 at 352 [165 ER 485 at 491].

[100] [1975] HCA 58; (1975) 135 CLR 337 at 361, 362–363, 374 per Barwick CJ, 468 per Mason J, 487, 493, 494 per Jacobs J. See also Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177 at 186–187 per Barwick CJ, 221–222 per Windeyer J.

[101] Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337 at 487–490 per Jacobs J.

[102] Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337 at 489 per Jacobs J; Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 at 329–330 per Brennan J; Malcomson v O’Dea [1863] EngR 867; (1863) 10 HLC 593 [11 ER 1155]; Neill v Duke of Devonshire (1882) 8 App Cas 135 at 177 per Lord Blackburn; Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 at 170–171.

[103] Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 at 170.

[104] Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337 at 489 per Jacobs J.

[105] Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177 at 190–192 per Barwick CJ, 201–202 per Kitto J, 209 per Menzies J, 213 per Windeyer J.

[106] Convention on the Territorial Sea and the Contiguous Zone, Art 8.

[107] [1975] HCA 58; (1975) 135 CLR 337.

[108] The NT Powers Act commenced operation on 1 January 1982 and the NT Title Act commenced on 14 February 1983.

[109] Coastal Waters (State Powers) Act 1980 (Cth) and Coastal Waters (State Title) Act 1980 (Cth).

[110] Port MacDonnell Professional Fishermen’s Assn Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340 at 358.

[111] Off-shore Waters (Application of Territory Laws) Act 1985 (NT), s 2(1).

[112] s 3(1)(a).

[113] Yarmirr v Northern Territory [No 2] (1998) 82 FCR 533 at 558.

[114] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462.

[115] cf Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1.

[119] s 4(1).

[121] (1998) 82 FCR 533 at 575.

[122] (1998) 82 FCR 533 at 575.

[123] Commonwealth of Australia v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171 at 234–235 [267]. See also at 315–316 [633]–[640] per Merkel J.

[131] Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 at 128–129 [47]–[48].

[132] [1975] HCA 58; (1975) 135 CLR 337.

[133] (1876) 2 Ex D 63 at 239; New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 368, 378–379, 462–463, 466, 486–487, 491, 501.

[158] [1996] HCA 2; (1996) 185 CLR 595 at 614–615.

[159] Australia, House of Representatives, Parliamentary Debates (Hansard), 16 November 1993 at 2877–2878.

[160] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 104.

[161] Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422.

[162] Jones v Wrotham Park Settled Estates [1980] AC 74 at 105.

[163] Diplock, ‘The Courts As Legislators’, in Harvey (ed), The Lawyer and Justice (1978) 265 at 274.

[164] Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, Art 1.

[165] Commonwealth of Australia Gazette, G56, 11 September 1953.

[166] Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, Arts 2, 3, 4 and 5; Re Newfoundland Continental Shelf [1984] 1 SCR 86 at 95–96.

[211] R v Keyn (1876) 2 Ex D 63 at 239; New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 368, 378–379, 462–463, 466, 486–487, 491, 501.

[212] (1876) 2 Ex D 63.

[213] Reasons of Gleeson CJ, Gaudron, Gummow and Hayne JJ at [26].

[214] [1975] HCA 58; (1975) 135 CLR 337 at 395–396, 426–427.

[215] [1975] HCA 58; (1975) 135 CLR 337 at 368, 378–379, 462, 486.

[216] [1975] HCA 58; (1975) 135 CLR 337 at 369.

[217] New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 487.

[314] North Ganalanja Aboriginal Corporation [1996] HCA 2; (1996) 185 CLR 595 at 613.

[315] The Act, s 223(1)(c).

[316] eg the Act, s 213. See Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 75 ALJR 1342 at 1351 [46]; [2001] HCA 49; 181 ALR 307 at 319; Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53 at [63].

[317] See R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433 per Gibbs CJ.

[318] See eg Australia, House of Representatives, Parliamentary Debates (Hansard), 16 November 1993 at 2879; Explanatory Memorandum to Native Title Bill 1993, Pt B, cl 208 (now s 223).

[319] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 452.

[320] The Act, Preamble, s 3; see also Wik (1996) 187 CLR 1 at 214.

[324] s 15B(4).

[325] By Proclamation in 1990, Australia asserted sovereignty ‘in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil’: Seas and Submerged Lands Act 1973 (Cth), ss 6, 10; Commonwealth of Australia Gazette, S297, 13 November 1990; see also Coastal Waters (Northern Territory Title) Act 1980 (Cth), s 4; Coastal Waters (Northern Territory Powers) Act 1980 (Cth), s 4; Off-shore Waters (Application of Territory Laws) Act 1985 (NT), s 3.

[337] R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433 per Gibbs CJ.

[356] See par 3 of the proposed determination in Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 at 602 (emphasis added). See par 4 of the final determination: Mary Yarmirr v Northern Territory [1998] FCA 1185 (4 September 1998) per Olney J.

[357] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 51.

[358] Convention on the Territorial Sea and the Contiguous Zone, opened for signature 29 April 1958, 516 UNTS 205; 1963 Australia Treaty Series No 12 (entered into force 10 September 1964), Art 14; United Nations Convention on the Law of the Sea, opened for signature 10 December 1982; 1994 Australia Treaty Series No 31; 21 ILM 1261 (entered into force 16 November 1994), Arts 17–26, see Seas and Submerged Lands Act, Schedule.

[359] See eg O’Connell and Shearer, The International Law of the Sea, (1982), vol 1 at 25; Colombos, The International Law of the Sea, 6th revised ed (1967) at 25, 88; Jennings and Watts (eds), Oppenheim’s International Law, 9th ed (1992), vol 1 at 614 [198]; Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea, (1990) at 10–15.

[360] Given effect by Proclamation, Commonwealth of Australia Gazette, S297, 13 November 1990, made pursuant to Seas and Submerged Lands Act, s 7.

[361] Opeskin and Rothwell, ‘Australia’s Territorial Sea: International and Federal Implications of Its Extension to 12 Miles’, (1991) 22 Ocean Development and International Law 395 at 396–397.

[362] Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337 at 469 per Mason J.

[363] The Act, s 223.

[364] See my reasons below at [288], n 409.

[365] United Nations Convention on the Law of the Sea, Art 25; Schneider, ‘Something Old, Something New: Some Thoughts on Grotius and the Marine Environment’, (1977) 18 Virginia Journal of International Law 147 at 157.

[379] Gann v The Free Fishers of Whitstable [1865] EngR 313; (1865) 11 HLC 192 at 208–210, 221–222 [1865] EngR 313; [11 ER 1305 at 1312, 1317]; Iveagh v Martin [1961] 1 QB 232 at 272–273.

[380] eg The Mayor of Colchester v Brooke [1845] EngR 259; (1845) 7 QB 339 at 374 [115 ER 518 at 531].

[381] cf Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 29, 43.

[382] Vooght v Winch (1819) 2 B & Ald 662 [106 ER 507]; see also The Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171 at 297 [549] per Merkel J.

[386] See Anderson v Wilson [2000] FCA 394; (2000) 97 FCR 453 at 463, citing the concept of relativity of titles upheld in Allen v Roughley [1955] HCA 62; (1955) 94 CLR 98.

[387] See The Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171 at 301 [573] per Merkel J.

[388] Neill v Duke of Devonshire (1882) 8 App Cas 135 at 177.

[389] Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177 at 212; Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 at 330.

[390] See my reasons below at [288]–[290].

[391] See Fisheries Act 1988 (NT); see also Validation of Titles and Actions Act 1994 (NT).

[392] Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 at 334–335.

[393] See eg the grant of mining tenements on private land in Mining Act 1978 (WA), ss 2739.

[394] (1996) 187 CLR 1.

[398] Coastal Waters (Northern Territory Title) Act 1980 (Cth), s 4; Coastal Waters (Northern Territory Powers) Act 1980 (Cth), s 4; Off-shore Waters (Application of Territory Laws) Act 1985 (NT), s 3; Cullen, Australian Federalism Offshore, 2nd ed (1988); see also Validation of Titles and Actions Act 1994 (NT).

[399] The Act, s 253.

[400] (1999) 201 CLR 351 at 366–367 [18]–[21], citing Gray, ‘Property in Thin Air’, (1991) Cambridge Law Journal 252 at 299.

[401] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 51–52.

[402] Mason v Tritton (1994) 34 NSWLR 572 at 581–582; see also the Act, ss 223, 225.

[403] Gray, ‘Property in Thin Air’, (1991) Cambridge Law Journal 252 at 299; see also joint reasons at [13].

[404] [1999] FCA 1668; (1999) 101 FCR 171 at 287 [505].

[405] eg Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 at 174; Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337 at 367–368, 465; cf at 397–400, 433, 487.

[415] [1999] FCA 1668; (1999) 101 FCR 171 at 302 [576], 304 [586], 305 [592], 314–315 [629]–[632].

[416] cf joint reasons at [98].

[417] Wik (1996) 187 CLR 1 at 235.

[418] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 64; Wik (1996) 187 CLR 1 at 130, 154–155, 185–186, 242–243.

[419] In my view, they are also available to resolve ambiguities in the Constitution itself: Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 657–661; Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337 at 417–418 [166]; Cabal v United Mexican States (No 2) [2001] HCA 43; 181 ALR 169 at 172 [9], n 12; cf Mason, ‘The Role of the Judiciary in Developing Human Rights in Australian Law’, in Kinley (ed), Human Rights in Australian Law, (1998) 26 at 43–44.

[420] [1992] HCA 23; (1992) 175 CLR 1 at 42 (footnote omitted). For comment see Mason, ‘International Law as a Source of Domestic Law’, in Opeskin and Rothwell (eds), International Law and Australian Federalism, (1997) 210 at 222; Mason, ‘The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown’, (1997) 46 International and Comparative Law Quarterly 812 at 813, 829; Walker, ‘Treaties and the Internationalisation of Australian Law’, in Saunders (ed), Courts of Final Jurisdiction, (1996) 204 at 212 referring also to Jago v District Court of New South Wales (1988) 12 NSWLR 558 at 569.

[421] See eg the opinion of Judge Tanaka in South West Africa Cases (Second Phase) [1966] ICJ Rep 3 at 293 considered in Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337 at 418–419 [167]. See also Bayefsky, ‘The Principle of Equality or Non-Discrimination in International Law’, (1990) 11 Human Rights Law Journal 1 at 8; McKean, ‘The Meaning of Discrimination in International and Municipal Law’, (1970) British Year Book of International Law 177 at 180.

[422] Opened for signature 7 March 1966, 660 UNTS 195; 1975 Australia Treaty Series No 40; 5 ILM 352 (entered into force 4 January 1969; Australia’s accession 30 October 1975); Triggs, ‘Australia’s Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1998 (Cth)’[1999] MelbULawRw 16; , (1999) 23 Melbourne University Law Review 372 at 373–375. See also the provisions of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171; 1980 Australia Treaty Series No 23; 6 ILM 368 (entered into force 23 March 1976; Australia’s accession 13 November 1980), Arts 2, 27.

[423] Racial Discrimination Act 1975 (Cth): Mason, ‘The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown’, (1997) 46 International and Comparative Law Quarterly 812 at 818–819.

[427] Report of the Special Rapporteur, pars 36–38, 46. The Special Rapporteur pointed out (at par 35) that similar questions have arisen in West Irian, the Philippines, Thailand, Central and South America and India in relation to indigenous peoples. Analogous questions arose in the 1930s before the Permanent Court of International Justice: see Minority Schools in Albania (1935) PCIJ Ser A/B No 64; (1935) 3 World Court Reports 484.

[428] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 42.

[487] By Proclamation of 9 November 1990, Australia’s territorial sea was extended to twelve nautical miles pursuant to s 7 of the Seas and Submerged Lands Act.

[488] (1876) 2 Ex D 63.

[500] See Keyn (1876) 2 Ex D 63 at 177–178 per Cockburn CJ.

[501] [1975] HCA 58; (1975) 135 CLR 337.

[502] [1975] HCA 58; (1975) 135 CLR 337 at 368–369.

[503] (1876) 2 Ex D 63.

[504] (1877) 2 CPD 173.

[505] (1877) 36 LT (NS) 251.

[506] [1975] HCA 58; (1975) 135 CLR 337 at 465. See also at 368–369 per Barwick CJ, 378 per McTiernan J, 501, 505–506 per Murphy J. Jacobs J at 491–492, while agreeing with the result in Keyn, took the view that ‘[i]t was not strictly necessary to decide in Reg v Keyn whether the Crown of England owned the sea or any part thereof below low-water mark ... The important point was that the common law did not extend there.’

[507] [1975] HCA 58; (1975) 135 CLR 337 at 470. See also at 360 per Barwick CJ.

[508] [1975] HCA 58; (1975) 135 CLR 337 at 465.

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