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Storey, Matthew --- "The Black Sea" [1996] AboriginalLawB 15; (1996) 3(80) Aboriginal Law Bulletin 4

[1] [1992] HCA 23; (1992) 175 CLR 1.

[2] See, for example, `Rising Sea Claims on the Queensland East Coast', J Sutherland, Vol 2, 56 Aboriginal Law Bulletin 17; `International Law and Indigenous Marine Rights: The Evolving Framework', A Bergin, 1993 Environmental Planning Law Journal 438.

[3] [1921] UKPC 80; [1921] 2 AC 399 at 403.

[4] [1942] USSC 12; 314 US 339 (1941) at 345.

[5] The terms `intrusive Australian law' or `intrusive law' are used throughout this paper to distinguish such from Indigenous Australian law, and in preference to less appropriate terms such as `English law' or `European law'.

[6] [1913] UKLawRpAC 51; [1914] AC 153.

[7] [1989] HCA 47; (1989) 168 CLR 314.

[8] [1913] UKLawRpAC 51; 1914] AC 153 at 167-168.

[9] At 170.

[10] At 170-171.

[11] [1989] HCA 47; (1989) 168 CLR 314.

[12] Per Brennan J at 329. The other 6 justices concurred with Brennan J's judgment: Mason CJ, Deane and Gaudron JJ at 325, Dawson, Toohey and McHugh JJ at 336.

[13] Per Brennan J at 330. See also His Honour's comments at 334.

[14] At 335.

[15] This matter is discussed further in the following section.

[16] [1989] HCA 47; (1989) 168 CLR 314 at 334-335.

[17] Recently this proposition has been taken further by O'Loughlin J in Fitti v Minister for Primary Industries (1993) 40 FCR 286, where His Honour held that a fishing licence is a `property' within the meaning of s51(xxxi) of the Constitution, and thus a reduction in the allowable quota under a licence constitutes an acquisition of property (at 294). While this decision may be viewed as a bold departure from Harper v Minister for Sea Fisheries, it must also be noted that the meaning of `property' can vary in different legal contexts. In that of appropriation of property, concern for the protection of individuals against governments has overridden concern for a strict interpretation of `property'. See `The Fisheries Management Act 1991: Are ITQ's Property?', C McCamish, (1994) 22 FLR 375, page 396.

[18] Mason v Clarke, [1955] AC 778 per Lord Morton at 798.

[19] See note 8 supra.

[20] [1955] AC 778.

[21] [1897] UKLawRpCh 80; [1897] 2 Ch 96.

[22] [1936] 1 Ch 343.

[23] At 794.

[24] At 102.

[25] At 351-353. In this case Lord Wright MR drew a distinction between damage in, for example, nuisance, and that arising through negligence, deceit, or conspiracy.

[26] [1876] UKLawRpExch 73; [1876] 2 ExD 63.

[27] [1975] HCA 58; (1975) 135 CLR 337.

[28] [1876] UKLawRpExch 73; [1876] 2 ExD 63. See in particular per Cockburn CJ at 194-196.

[29] [1975] HCA 58; (1975) 135 CLR 337 per Mason J at 463.

[30] Section 6 of the Act declares Australia's sovereignty in respect of its territorial sea, airspace, sea bed, and subsoil. Section 11 declares sovereign rights in respect of the continental shelf for the purpose of exploring and exploiting its natural resources. The sovereign rights model has been continued in UNCLOSIII which forms the basis for Australia's declaration of an Exclusive Economic Zone (UNCLOSIII, Art 56, and the Maritime Legislation Amendment Bill 1993, s5). However, Art 2 of UNCLOSIII affirms that `The sovereignty of a coastal state extends ... to the territorial sea'.

[31] [1975] HCA 58; (1975) 135 CLR 337 per Barwick CJ at 363.

[32] As to which see Seas and Submerged Lands Case per Mason J at 475.

[33] [1968] 2 QB 740.

[34] [1968] 2 QB 740 at 753.

[35] [1975] HCA 58; (1975) 135 CLR 337 per Gibbs J at 388.

[36] [1992] HCA 23; (1992) 175 CLR 1 per Brennan J at 43-45.

[37] For example, `Aboriginal Sea Rights at Common Law: Mabo and the Sea', R Bartlett, paper given at Turning the Tide: Indigenous Peoples and Sea Rights Conference, Darwin, July 1993; `Human Rights, Aboriginal Maritime Culture and the Evolving Regulatory Framework for the East Coast of Queensland', J Sutherland, paper given at ALTA 47th Annual Conference, Brisbane, July 1992.

[38] (1994) 34 NSWLR 572 at 580.

[39] `Aboriginal and Torres Strait Islander Interests in the Great Barrier Reef Marine Park', A Bergin, Great Barrier Reef Marine Park Authority, Townsville, 1993. Page 33.

[40] [1992] HCA 23; (1992) 175 CLR 1 at 192.

[41] (1979) 107 DLR 3rd at 545.

[42] Exceptions contemplated relate to, for example, oyster leases below the low water mark, grants in respect of jetties and navigational equipment, and mineral concessions. The actual area occupied by any such grant is minimal when compared to the total area comprised in the sea bed and seas making up Australia's territorial sea, Exclusive Economic Zone, and continental shelf.

[43] This matter was considered in Mabo v Queensland [No. 1] (1988) 166 CLR 186, where the `right' referred to in the RDA was held to include the right to hold property, although the passing of legislation by the Queensland Parliament was not an `act' under s9(1).

[44] [1995] HCA 47; (1995) 183 CLR 373 at 438.

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