Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland - [2010] FCA 643 - FCA 2010 case summary — Zoe

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Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland

[2010] FCA 643

Federal Court of Australia|2010-07-02|Before: Finn J

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Source facts

Court

Federal Court of Australia

Decision date

2010-07-02

Before

Finn J

Source

Original judgment source is linked above.

Judgment (362 paragraphs)

[1]

The Applicant, predictably, protests at so significant a matter emerging as it has and seeks to have the State's submissions rejected. 324 My own difficulty in all of this is compounded by the proposition I put to Mr Hiley QC for the State that the evidence demonstrated that the significance of totems had diminished dramatically and that explained "a lot of the inconsistencies in the evidence". His response was: "Yes indeed". 325 At one level I am being asked to resolve an anthropological debate stemming from a contested opinion of Haddon; at another, I am having pressed on me divergent Islander evidence, the reliability and utility of some deal of which is questionable.

[2]

(a) Totemism across Torres Strait 326 I need refer only fleetingly to archaeological evidence of totemism. Dr McNiven's opinion is that bu shell arrangements, specific stone arrangements and certain pieces of rock art evidence or represent totemic practices or marine animal totems. This evidence is confined primarily to the Western Islands. 327 Now to the problem created by Haddon (1908, at 254). In introducing the subject of totemism, he commented: It is a very remarkable fact that while totemism exists among the Western Islanders, it is entirely absent as a cult from the Miriam. We have no information concerning the other Eastern Islanders but probably they agreed in this respect with the Miriam. From every point of view, except the linguistic, the relationship of the Miriam is very close to the Western Islanders, and as there can be no shadow of doubt that the former were at one time in the totemic stage, it is desirable to attempt an explanation of its disappearance.

[8]

332 To illustrate the problem at the outset, usually two, but occasionally three persons or one person gave evidence for each island community. Where there was more than one, complete agreement of the witnesses in their understandings of totemism in their community was not reasonably to be expected and the State conceded as much. But the departures went beyond a mere lack of uniformity. To take the example of Erub, three witnesses gave evidence. Kapua Gutchen gave a detailed and specific account of the tribal totem system on Erub and on its associations as he understood these. Mr Mye knew there were totems for the four tribes on Erub, but when asked what they were he said he would "need to confirm that from the respective … clansmen". He was aware, though, of the totem for the Mer tribe from which, seemingly, his Erub tribe derived. Bully Saylor thought he belonged to two of the four Erub tribes; he thought they had totems, but "I'm not too familiar with totem things. I might give the wrong totem". On the issue of transmission of tribe membership, George Mye said the children follow the father; for Bully Saylor "[the children] have to follow their parents … but … today … they don't worry about tribe much". 333 I mean no disrespect to Mr Mye or Mr Saylor in making the above references. Both are elders. Mr Mye has been a respected public figure for the Islanders for decades now. Mr Saylor's evidence has in many respects, and particularly in relation to maritime matters, been very illuminating. Their quoted evidence, though, is emblematic of the contemporary totem problem. 334 The reason the State has placed such focus on tribes, clans and totem groups is, it is said, that they and the patterns of behaviour relating to them are one of the few areas in the evidence in which the laws are unambiguously normative. The evidence of those patterns of behaviour relating to tribe, clan or totem groupings was sufficiently plentiful, it is said, to be representative and sufficiently consistent (subject to individual variations) to be reliable, at least for the purpose of identifying the presence of multiple systems rather than a single system. Most witnesses had something to say on the topic. Most witnesses approached the topic, insofar as it affected their community, with confidence in their understanding of the subject (and in contrast most knew little of how tribes, clans and totems operated in other communities unless they had a personal link to the relevant community). This, it is said, permits the Court confidently to form the broad conclusions the evidence permits. Whilst there are many questions relating to detailed issues that are unanswered by the evidence, the State considers it not necessary to descend into detail for present purposes. What is critical is the conclusion (which the State submits is amply made out) that there are a number of discrete systems in operation in distinct parts of the application area. I would add that the State has provided an island by island and witness by witness précised account of the evidence to support its conclusion. 335 I do not intend to set out that evidence at length. It is voluminous. The State accepts that there are many questions relating to detailed issues which are unanswered but that it is unnecessary to descend into detail for its purposes. I agree with that observation - which, in a sense, ought allay some of the Applicant's concerns. However, I do not agree with the State's conclusion. 336 There is, in my view, not a great deal that can be said with positive certainty about much of the alleged system, or systems of clan totemism, that emerge(s) from the Islander evidence. The reasons for this lie first and foremost (i) in the very limited information about laws and customs relating to clans, tribes and totems that the Islander witnesses were able to give; (ii) in the very small number of witnesses who gave evidence in relation to each island; and (iii) in the level of inconsistency in, or else unhelpfulness of, the evidence given about particular islands. There was a corresponding relative lack of focus upon contemporary totemism in Torres Strait in the expert evidence. 337 Before turning to the Islander evidence and my appreciation of it, there are two general observations I should make. First, beyond a small core of totems shared by some number of clans on some number (but not all) islands - crocodile, shark, snake - there was considerable diversity in totems as between islands. Secondly, save mostly in cases where a parent or ancestor had come from another island, there was, in general, little knowledge of totems in other areas of Torres Strait. Equally there was almost a complete absence (but cf Keith Pabai) of evidence of actual contemporary use of totems as a means to connect Islanders from different communities. 338 The evidence from the Top Western Island witnesses was that (save on Dauan) clans were divided into two moieties within which there were, in aggregate, eight totemic clan groups. There was some, but not uniform evidence (cf Keith Pabai) that marriage to a member of a person's moiety group was not permissible. The clan groups had their own main totem. Totem clans were said to be relevant to land division and (a) in the case of Boigu (though the two witnesses disagreed), to the sea to the seagrass line and (b) on Saibai, to division of the adjacent sea including the home reef. The evidence of assignment to totemic groups was incomplete for Boigu (Nelson Gibuma: either parent/grandparent), and of relative agreement for Saibai and Dauan (male line). To the extent one can generalise from meagre, but relatively consistent evidence, the totemic clan system appears consistent with what the experts agree was the pre-annexation totem system. 339 The Western Islands present a less coherent picture due largely to the varying depths of knowledge of the witnesses. No mention was made of moieties by the witnesses save for Patrick Whap. Mua was said to have four (Lillian Bosun) or seven (Father John Manas) clan or totem groups. For Lillian Bosun, each clan had its own area of land, beaches and areas close to beaches. Father Manas referred only to land. Assignment to clan groups was said by one to be through grandfathers, by the other, through parents. 340 The three Badu witnesses identified three tribes that each traditionally have had different areas on the island. The tribes (or clans) according to Alick Tipoti were made up of family groups. The witnesses mentioned four totems, although there was some disagreement as to the assignment of totems to tribes. Mr Tipoti agreed totems were separate from the tribes and he did not know how many totems, traditionally, there were on Badu. He knew his totem and it identified his family line. The late Walter Nona, who was 84 when he gave evidence, knew the area where he grew up, but was not sure to which tribe he belonged and did not know his brother's tribe. Alick Tipoti commented that he was aware of variation between the islands "about how strong the ideas about totems are there today". 341 A quite comprehensive picture of clans and totems for Mabuiag was presented by Patrick Whap who appears to have a distinct interest in the matter. He knew of seven clans on the island and of the areas (including fish traps, island reefs and rocks) associated with clans. He said all areas on Mabuiag belonged to one or other clan groups whereas reefs and areas of sea away from the island belong "to the whole of Mabuiag". He associated clans with their totems. Clan groups passed from parent to child normally through their father's clan and totem. Sophie Luffman gave less detailed evidence which was relatively consistent with the above as far as it went. She only identified four tribes. She was of the view clan groups were assigned through parentage. 342 In aggregate, absent the moieties of the Top Western Islands, the Western Islands clan and totem system, though more confused and, probably, less understood at least on Badu and Mua, had an apparent commonality with that of its northern neighbours and the corresponding rule requiring exogamy. I am sceptical, though, about whether many on Mabuiag would have a relevant knowledge that approaches that of Patrick Whap and I consider the varying views on transmission, particularly those involving departure from the father's line, to be more likely to be mistaken. 343 In her piece on the post-contact created environment of the Central Islands, Anna Shnukal observed that the basic unit of pre-contact Central and Westerner Islander social life was the totemic clan. She went on to observe that "[t]he Kulkalgal totemic clan system cannot now be retrieved in detail": (2004), at 322). The Islander evidence betrays an even less informative account of the present system, if there is one at all. Such is the evidence that I will deal with these islands synoptically. 344 Given the halting efforts of some of the witnesses to provide information and its relative lack of depth, there appears to be justice in the observations of Daisy Kabay of Masig: We don't talk much about totems in Masig and the Central Islands. The old people didn't talk to me about totems. But if you go to other islands you will hear that. I know that on Saibai, and Boigu, Mabuiag and Murray Islands they still have totems. They have all different ones.

[9]

George Lui of Poruma commented on clans (and totems) that "[o]n Poruma we are not so strong on that now". Ethel Bob of Warraber said her community has totems and her clan totem is the bird Gau, as it was for all the Warrabergal and, seemingly, for Poruma. The Poruma witnesses, save for George Lui, appeared to agree while Nelson Billy said there was also an emu clan on Poruma. Ethel Bob additionally had the Dugong as a totem. She considered totems to be important and she taught her children about the bird, but she acknowledged that there was nothing she did or did not do as a result of the totems she had. While Mareko Kebisu of Iama gave no evidence at all in relation to clans, tribes and totems, Lizzie Lui also of Iama referred to her six totems, two of which were clan totems, and observed perhaps hyperbolically: "our people closely relate to each other through each other's totems". Vida Warria of Masig considered the people of Masig were all in one clan. 345 The Central Island evidence on clans, tribes and totems scarcely reveals any coherent body of laws and customs. It seems that totems are acknowledged or embraced with varying enthusiasms. The normative system that informs totemism as such is elusive. 346 Turning to the Eastern Islands, I have referred in part already to Erub. In aggregate the evidence for Erub is that there are four tribes, two of which have the same names as two of the eight on Mer. While totems were associated with clans only Kapua Gutchen could name them. Two of the three witnesses said tribe membership was passed usually down the father's line. The three referred to the family held fish traps on Erub. Kapua Gutchen considered tribes had a special position in relation to the outer reef. Beyond those reefs, according to Bully Saylor, the sea belongs to everybody from Erub. Additionally, according to Mr Gutchen, four clans had sea areas projecting from their land. 347 The late Atai Wailu said there was only one tribe on Dauar. Alo Tapim identified six totems that were important to his family and to Dauareb, the clan or tribe totem being the turtle. He regarded a "clan" as being a family group. 348 Malo is said to have brought 8 tribes to Mer each of which now occupies its own part of the Island. Both Alo Tapim and the late Atai Wailu identified certain totems for tribes. Both witnesses described family fish traps as belonging to tribes. Alo Tapim considered Meriam people are born into totems. Totems are not exogamous. 349 The evidence for Ugar is, in the main, quite oblique. Tom Ned Stephen was not sure of how many tribes there were on Erub or Mer. There were two tribes on Ugar in times past but "[w]e don't really talk about tribes on Ugar". He has totems from his ancestors on Erub and Mer. 350 I have in the above used the terms "tribe" and "clan" synonymously. This is not wholly reflected in the evidence of the Islanders. Unpackaging their usages in all cases would be difficult and pointless. 351 My own conclusion on the Islander evidence, largely unaided by expert evidence, is a less fulsome variant on that of Professor Scott to which I referred earlier. I earlier indicated my concerns about the evidence and will not repeat these. 352 I do not consider that the state of the evidence lends support to the State's ultimate society contention of 13 separate societies. In its submissions on clan totems, it does not go so far. Its contention is that what is apparent are separate, incompatible and discrete systems. They work together to build an inescapable conclusion that the inhabitants of the application area are not a single group united in and by their observance of a body of law and custom relating to totemic clans. 353 I am satisfied that what Professor Scott calls the "salience of clan totems" is much diminished in significant parts of Torres Strait, though in some of those parts it retains a cultural importance in some degree. The diminished salience is most apparent in the Central Islands. As I foreshadowed, I do not consider that the evidence relied upon by the State is capable of supporting a finding that in the Central Islands there is a normative and vital body of laws and customs associated with clan totems, let alone laws and customs that are acknowledged and observed. Totems do, nonetheless, have some cultural purchase in that area. 354 Subject to my real apprehension in drawing confident conclusions for either the Top Western and Western Islands on the basis of the slender evidentiary foundation laid, I consider that such of the laws and customs on clan totems as were reflected in the evidence given can reasonably be said, save possibly for Badu, to reflect those agreed by the experts to have been operative in Torres Strait prior to annexation. In saying this I consider that the variation in number and identity of clans from island community does not operatively divide those communities. The system itself appears to be informed by shared principles. I will deal directly with the significance of difference in my consideration of the "One Society" issue below. Despite the evidentiary uncertainties of assignment of totems, I consider that these communities still betray a bias in favour of taking through the father. I will later exemplify the relationship of totem clans to forms of property ownership: see 7(ix): Intra-mural allocation of rights. Suffice it to say here, I agree with the views of Professors Scott (2008, at [246]) and Beckett that: Although the retention of clan identities has been variable in different parts of Torres Strait, it appears that the basic circumstances of family organization and property-holding are similar. Beckett's observations at Mer (one of the island communities with relatively strong retention of clan identities) rings true elsewhere in central and eastern islands, and probably for western islands as well: "Society is now organised in terms of 'families' which are small descent groups [what I have called lineage segments], often bilateral [cognatic] and often not more than three generations in depth. Such groups may own land collectively or individually, in which case some of the holdings having been subdivided will be adjacent. Beyond the immediate control of residential and cultivatable land, ownership is believed to be tangible proof of a family's hereditary right to live on a permanent island and in a particular community."

[10]

Finally, I am not confident about the vitality and the observance of the laws and customs on clan totems in all of the Western Islands. I make no finding on those matters. 355 While the Islander evidence for the Eastern Island permits positive findings that a clan (or tribe) system subsists (save possibly for Ugar) and that there is some level of totemic "affiliations" with clans - to use Mr Murphy's term (2008, at [190] - I am left in considerable doubt as to the normative significance in social life that should be attributed to these affiliations, hence my initial reference to the evidence of George Mye and Bully Saylor. To the extent that the evidence is suggestive of laws and custom relating to totem clans - and I refer in particular to that of Kapua Gutchen, the late Atai Wailu and Alo Tapim - it does suggest features having some similarities with the evidence from the Western Islands and, excepting the moiety/exogamy rule, from the Top Western Islands. I do not pursue this for the following reason. 356 I am not satisfied that the evidence permits a positive finding to be made that there is today a shared and vital body of laws and customs relating to totem clans which are acknowledged and observed by the claim group, even admitting differences and variations as between Island communities. Even if I had taken a different view of the Central Islands, too much is wanting in the evidence to sustain such a positive finding. I reject the Applicant's aspirational submission to the contrary. I would also indicate, I consider that the same lack precludes the making of a positive finding that there were differing systems of laws and customs relating to totems amongst the island communities of Torres Strait that were so significant in the purposes they served in the social organisation of each such community as to negate any reasonable finding that there was one society or, alternatively, were four societies. As I understand Professor Beckett's evidence, part of which is quoted above, the differences were not of such an order. 357 What the evidence on totems does sustain is what was the apparent object of its introduction into this proceeding. That was to exemplify "a cultural orientation towards the sea".

[11]

(viii) Other Laws and Customs 358 There are three very minor matters of law and custom that are relied upon by the Applicant which I should note. 359 First, the naming of boats. In writing of "The Canoes of Torres Straits", Haddon reported (1912, at 205) that "[m]any canoes have proper names which in some cases are now painted on the gunwale, but I do not know whether giving names to canoes was an old custom". The Islander witnesses in number gave evidence of the naming of watercraft and this is relied upon to evidence a custom which is practised across Torres Strait (which, it is said, adds support for the "One Society" case). 360 The Commonwealth accepts there is such a practice but that it does not inform the one society case. The State contests the practice and contends naming is a matter of personal discretion. 361 The Islander evidence is overwhelmingly that boats are named after persons (usually family, living or deceased) or other things of significance, for example, a totem, a ship's name which marks an event (eg the Coming of the Light) or Cyclone Tracy. There were, though, departures from this (eg sandfly, which was not a totem). I should interpolate that I have taken no account of the naming of Master boats. The Islanders have in some number referred to such naming as a "custom" - though the content of it varies somewhat. They equally have referred to it as coming from "ancestors", or before the Light, as an "old custom", or as going "back for many generations". 362 I accept the practice is a conventional one properly to be characterised as a custom. It is practised across Torres Strait. I accept the provenance attributed to it. However I do not consider that of itself it informs the One Society issue in a significant way, though it is consistent with the finding I make on that issue. 363 Secondly, making peace and welcoming. The Applicant, relying upon several historical accounts, and upon some contemporary evidence (including of the Court's first visit to a Torres Strait Island), propounds a custom of waving a tree branch to symbolise peace making or welcome. The Commonwealth does not take issue with this, and admits it is traditional. The State does. 364 It is Professor Beckett's evidence (2008A, at [31]; 2008B, at [12]) that at, and prior to, annexation there were "conventions for peace making"; there was "a customary process for re-establishing [a broken] relationship through the peace making ceremony". 365 Despite the Islander evidence - there is only a very small body of it - I am not satisfied that any law or custom on this matter has been made out. For the most part that evidence only deals with the fact of welcoming people. George Mye did refer to waving a branch as indicating an intent to make peace. There is nothing to suggest a peace-making ceremony or conventions for peace-making to which Professor Beckett alluded. 366 Thirdly, omens. That signs (or omens) could be conveyed by the unusual behaviours of birds, fish or other animals is recorded in Haddon (1935, at 129; 1908, at 259-261). There was a deal of Islander evidence - often tied to the behaviour of totemic animals - confirming that such messages were conveyed. The Applicant advances this belief or understanding of Torres Strait Islanders as a matter of law and custom. The Commonwealth, benignly, accepts that there was such evidence - although without conceding any consequence to this. The State acknowledges such evidence but denies patterns to it save, seemingly, in relation to totem animal signs.

[13]

Contextual Matters 368 The Applicant has included amongst its "laws and customs" some number of contextual matters which, though of varying relevance to the issues in this proceeding have been inaptly so described. These are dealt with in the Applicant's submissions under the rubrics of "Social 'levels of scale'", "Marine orientation", "Language", "Receptiveness to innovation and change" and "Cosmology, mythology and religion". I will refer to each briefly and will add several other matters which can be dealt with conveniently at this place. These are the "Central Islanders", "Identity", "The two unresolved land claims" and "Infra-mural rights and interests". 369 I should emphasise that what I call "contextual matters" - what others have described as a "constellation of factors": Sampi FC, at [77] - are relied upon in these reasons to the extent that they assist, or have some explanatory force, in the drawing of inferences in relation both to the relevant society and to its normative system of laws and customs. As North and Mansfield JJ commented in Sampi FC (at [77]): Whilst the ultimate fact to be proved by native title claimants is that they have been continuously united in their acknowledgement of laws and observance of customs, there are many subsidiary facts from which an inference may be drawn about that ultimate fact. It is too narrow to exclude from consideration factors which may bear on the existence of a normative system whilst not being direct evidence of the existence of that system. Indeed in the present case the array of factors relied upon by the Bardi and Jawi people themselves to demonstrate the existence of a single society at sovereignty highlights the point. They have not restricted themselves to factors which directly prove the existence of a normative system. For instance, the proof of the existence of songs about the sea is capable of showing that there were rules about the use of the sea even though the proof of the songs themselves is not proof of the law or custom.

[14]

(i) "Social 'levels of scale'" 370 I have found this matter, in large measure, to be a distraction. I have referred earlier to the Applicant's "plain English" description of the potentially relevant society for purposes of this proceeding. That document differentiated and described progressively the Islander groups within "the current society" from the least inclusive to the most inclusive. To reiterate, the progression of these groups, ie "the levels of scale" is (i) lineage segments, lineages, families, clans ("Kin-based groups"); (ii) descendants of ancestors who were inhabitants of inhabited islands at sovereignty ("communities"); (iii) descendants of ancestors who were inhabitants of regional groups of inhabited islands at sovereignty ("cluster groups"); (iv) descendants of ancestors who were inhabitants of communities where a particular language was spoken ("language groups"); (v) descendants of ancestors who were inhabitants of the Torres Strait at sovereignty; and (vi) descendants of ancestors of the inhabitants of a larger regional area at sovereignty ("larger regional society"). "Nested" within each such group were the smaller groups which constituted it. For example, the groups in (i) were nested in and constituted the individual groups in (ii) and so on. 371 I accept that this differentiation may have its own utility for some purposes; that it may properly define "societies" for anthropological purposes; but its utility, if any, for present purposes will only be revealed in light of the finding that I make on whose are the laws and customs that are acknowledged and observed for the purposes of s 223 of the NT Act. The Applicant has sought to contrive that finding by the confident, but question begging, assertion that the above differentiation is itself a matter of law and custom. 372 At best the Applicant's submissions produced what only can be described as shadow boxing awaiting the determination of the main issue. I do not intend to engage further with this diversion.

[15]

(ii) Marine Orientation 373 The pleadings on this matter virtually speak for themselves. The Applicant's Points of Claim 4 states (at [43]): The current society by its laws and customs is essentially a marine oriented society in that by the current laws and customs the occupation, inhabitation and use of the application area by the members of the sea claim group is characterised by: (a) intensive and extensive exploitation of the marine environment and resources; (b) a profound knowledge of and taxonomy for the marine environment and resources; (c) a well developed adaptation to exploitation, utilisation and management of the marine environment and resources; (d) a major reliance on the marine environment and resources commercially, nutritionally and symbolically; (e) sophisticated seafaring and resource exploiting skills and technologies and associated navigational knowledge and maritime lore. In part this knowledge is enshrined in songs and myths; (f) long distance voyaging by sea; (g) a cultural orientation towards the sea. Marine imagery permeates Torres Strait Islander culture, including religion, mythology, totems, art, music, song, dance, and story telling, personal identity, the identification of life stages, home décor, fashion, tombstone design and everyday conversation; (h) a preference for seafood and other traditional foods and the importance of the inclusion of dugong and turtle meat in feasts; (i) belief in dugong and turtle hunting magic; (j) knowledge of dangerous marine creatures and of treatments for contact with them; (k) recognition and use of a multitude of named places and places otherwise of importance (some deriving from myths or more recent historical events) in the sea across the Torres Strait including the application area; (l) recognition and use of a multitude of sea habitats and biota; (m) frequent and regular participation in marine resource fishing, hunting and gathering activities by men, women and children; (n) a day to day life on the islands which to a large extent revolves around the temporal cycles of the sea and work involved in procuring marine resources; (o) island based groups being connected rather than divided by the sea; and (p) the naming and celebration of the naming of watercraft.

[16]

374 The State's response admits (a) that the "present inhabitants of the Sea Claim Area Part A are marine oriented" and (b) that the occupation, inhabitation and use of that area by many of those inhabitants is characterised by all but two of the sixteen listed matters - albeit the admission is shorn of all of the emphatic adjectives ("intensive", "profound", "well developed", etc) used by the Applicant. The two not admitted are (i) ("belief in dugong and turtle hunting magic") and (o) (island based groups "being connected rather than divided by the sea"). 375 The State's submissions on the Applicant's pleading highlights two matters, the principal of which is that [43] does not, and does not purport to, identify laws and customs. Rather it merely identifies ways in which occupation, inhabitation and use of the application area are said to be characterised by unspecified laws and customs. 376 The Commonwealth does not admit the existence of the current society or of the "current laws and customs referred to", but does admit that members of the sea claim group, or a large number of them, do, know, practise etc twelve of the sixteen listed matters - albeit with some deletion or omission of the emphatic adjectives and some re-casting of the language used by the Applicant. The matters not admitted are (f) ("long distance voyaging"), (i) (dugong magic, etc), (k) ("recognition and use of a multitude of named places" etc) and (o) (island based groups "being connected" etc). The Commonwealth's submissions on this matter, I would add, are a model of brevity. Having acknowledged its admission, it comments only that, in light of the nature of the claim area, the "extraordinary range of detailed information about the sea and its resources" which is transmitted from generation to generation is not surprising, though no less impressive. However, "knowledge" is not necessarily law and custom. Nor does knowledge, without more, assist with establishing a "connection" by laws and customs to the areas now used by the claimants as a basis for recognising property rights. 377 In over 70 paragraphs of written submission, the Applicant, argumentatively, has attempted to transform knowledge and activities (historical and contemporary) into laws and customs that relate seemingly to the sixteen matters characterised in [43]. I do no more than illustrate this process. 378 Positing that the marine orientation of the members of the claim group is not in question, the Applicant opens with the observation that: It is not immediately apparent why deeply ingrained patterns of behaviour perpetuated over centuries and associated with a vast body of knowledge and cultural practice is not a matter of law and custom in the Native Title Act sense.

[19]

(iii) Language 381 Language is the basis upon which Haddon saw the people of Torres Strait as divisible into two people or tribes. For its part, contemporary case law under the NT Act suggests that language differences between groups constituting a claim group can be a factor to be taken into account in determining whether or not the groups do or do not constitute a single society: see eg Sampi FC at [68]. So in Neowarra, Sundberg J found that, though three languages in the North Kimberley family of languages were mutually unintelligible, the peoples who spoke them were together "a society". 382 The evidence on language as such in this matter is uncontroversial. For this reason I will confine myself to the uncontested evidence of the expert linguist, Nicola Piper. It is that there are three languages spoken in Torres Strait. Two are traditional indigenous languages, Miriam Mir ("MM") which was and still is spoken (though not as a community language) in the Eastern Islands, and the Western Central language ("WCL"), which was and is spoken in the rest of the Strait. The third language is Torres Strait Creole. Its vocabulary is 85 per cent English-derived. In Ms Piper's experience, Torres Strait Islanders are today usually monolingual or bilingual. They will speak either one of the indigenous languages and Torres Strait Creole or the latter only. 383 MM is classified as a Papuan language belonging to the Eastern Trans-Fly family, which also includes the Bine, Gidra and Gizra languages. The exact relationship between those languages and MM has not yet been demonstrated. 384 WCL has two major dialects ((i) and (ii) below) and two other dialects ((iii) and (iv) below): (i) Kalau Kawau Ya, a northwest dialect spoken on Boigu, Saibai and Dauan; (ii) Kalau Lagau Ya, a central west dialect spoken on Mabuiag and Badu; (iii) Kawalgau Ya, a dialect spoken on islands such as Moa (Kubin) and Ngurapai (Horn Island) and is closely related to Kalau Kawau Ya; (iv) Kulkalgau Ya, a dialect spoken in the central east on islands such as Masig, Poruma, Warraber and Iama and is closely related to Kalau Lagau Ya.

[20]

The second of these dialects does not include a full cluster group. The third crosses cluster group lines. All WCL speakers can understand each other. 385 WCL is related to the Australian language family. However, there are also similarities between WCL and Papuan languages. There is still debate about the nature of WCL's genetic relationship to the Australian language family. WCL is also spoken as the second language of many of those Papuans who live in neighbouring parts of the Torres Strait, particularly those who have traditional ties with Islanders. 386 WCL and MM belong to different language families and they are classified linguistically as distinct languages; they are not dialects of the one language because they are not mutually intelligible. However, they do have a great deal of common vocabulary. A word list compiled in 1992 found around 25 per cent common vocabulary between the two languages. An adaptation of the list has been provided as an appendix to Ms Piper's report. The vocabulary covers a wide range of semantic domains. 387 It is Ms Piper's opinion that the shared vocabulary does not prove or disprove common genetic linguistic ancestry. However, it is reasonable to infer from this shared vocabulary across a number of semantic domains that a close relationship has existed between speakers of these two language groups over a long period of time. This relationship must have been extensive as borrowing is most likely to occur when there is widespread bilingualism. It can therefore be assumed that WCL and MM speakers both spoke each other's languages well. There is, however, no linguistic evidence that provides a time-determined rate for this borrowing. 388 As will later become apparent, I consider the interpenetration of the two languages is significant, the more so because the WCL speakers who had the major contact with the Eastern Islanders were the Central Islanders. 389 I should note that, apart from drawing attention to the obvious dialectic problem with Mua (its dialect differs from that of the other Western Islands), the Commonwealth's contention is that the linguistic evidence provides no support for "one society" across Torres Strait. The State's contention is that to the extent that examination of languages is informative (which it questions), it supports a case for the existence of multiple societies.

[34]

Professor Scott deals with the cults of the Brethren at some length (2008, [130]-[135]). I merely note his observations concerning their shared mythology and ritual practice; their concern with the ritual of warfare; the inter-island hosting of members visiting in a seasonal ceremonial cycle; and their function as a vehicle of trade and friendship between Central and Eastern Islands. Distinctly, there is evidence of community of origin of songs of which Haddon observed that, as a general rule, "where there is close similarity, it looks as if the Eastern Islanders had borrowed [it] from the Western". Notably, Haddon records (1907, at 50) that "the songs sung in the Malu ceremonies" were said by the Islanders of Mer to have been introduced by people from Naghir, Iama and Tudu (all Central Islands). Relatedly, Haddon (1912, at 241-242) also noted that the characteristics of the three kinds of Miriam music were determined or influenced by "the free communication of the inhabitants with western and other islands of the Torres Strait". Much music on Mer was not claimed to be of Miriam origin. 404 Secondly, trade and visits. The Central Islanders were the least sedentary of the peoples of Torres Strait. Necessity ordained this. As explained by Anna Shnukal (2004, at 325): They traditionally 'flitted' from island to island in the seasonal search of food - hence the mocking jibe of 'seabirds' - and visited their neighbours in order to trade. Driven by a constant search for sustenance, they ranged among adjacent islands, seasonally exploiting some as fishing bases, others as garden sites, others for their seabirds and eggs. Haddon (1935: 84-86) narrated the fate of survivors from the wreck of the Charles Eaton in 1836, who accompanied their small band of Kulkalgal captors from island to island on what was probably a regular voyaging/foraging/trading cycle. Depending on available resources, they might stay for one or even two months to fish or move on quickly, 'calling on their way at different islands, and remaining as long as they supplied food'.

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410 In his final report, after indicating he had not cited the above article in his report and a reason for this was that he did not have the benefit of Sweatman's diaries and Brierly's manuscript, when he wrote the article Professor Beckett stated (at [5]-[6]): These two sources particularly when read with the previously published accounts of Macgillivray and Jukes, provided a much fuller and clearer account of the dynamics of inter-island relations and hostilities than one could obtain from Haddon's reconstructions, and caused me to reconsider my understanding of the significance of trade, particularly the canoe trade, as indicated in my Draft Report and Statement, especially 47(b). In particular, I would now disown the passage of my paper … the reference to 'small units which were all that was required for economic survival' … In respect of the Torres Strait Islands - the quotation was attempting a broader generalization - my subsequent reading of these sources makes it evident that few communities could have survived without the canoe trade and the trade in other items that it made possible; and for those few, life would have been impoverished and in the event of drought, excessive rain, and plagues of insects, which we know afflicted islands from time to time, livelihood would been insecure. My point, however, is not that the trade was 'need' driven, but that the Strait-wide recognition of such laws and customs enabled the practice of trade between islands and between mainlands. This traffic was sometimes interrupted by fighting … but it is clear from the mid-19th century and other sources that it was practiced to sufficient degree for the islanders to be able to occupy their maritime habitat. My view of trade in Torres Strait before Annexation, as presented in my Draft Report, has been based on the conclusion that the laws and customs by which trade was practiced throughout the Strait were essentially the same. The early accounts of encounters with European vessels in the late 18th and early 19th centuries indicate that the Islanders expected that the strangers would recognise their overtures and participate more or less in accordance their laws and customs regulating trade, as in due course they did.

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(vii) Identity 412 Dr Fuary's 2000 paper - "Torres Strait and Dawdhay: Dimensions of Self and Otherness on Yam Island" - has, in its own way, identified a characteristic common to all of the Islander witnesses: see esp at 222. It is their uniqueness in virtue of their belonging to a particular island community. All self-identified by reference to their particular Island and that remained the principal point of reference to locate their place and being. This was apparent from the first witness, Nelson Gibuma: "I'm Boigulaig". Most, though not all, made reference to their respective Island cluster group - the Central Islanders the most emphatically so - and to being Torres Strait Islanders. Relately other Islanders not from the witness' own Island tended likewise to be identified by reference to their own Island. 413 While there is something of a curiosity in this Island-based form of identification - some formerly occupied islands are no longer inhabited as, for example, Gebar and Tudu whose people were relocated to Yam at the turn of the twentieth century - it is obviously descent based in essence and explicable in those terms. I do not intend to further exemplify the Islander evidence in this regard. It is set out at length in the submissions of the Commonwealth and the State, albeit with differing emphasis reflecting their respective cases on the society issue. 414 It is, in my view, unsurprising that the Islander evidence on identity had the emphases it did. The characteristic feature of the individual island communities is that their primary focus was - and is - on their respective selves and their own areas (land and sea) or on their near neighbours and their sea areas (especially if shared with them as was common in the Central Islands, or if permissive use of them was allowed, as seems to have been the case between Top Western Islands and between some Central Islands). 415 In emphasising the individual island community I also recognise that some islands had particularly close relations with another island. The obvious examples of this were between Warraber and Poruma, Saibai and Dauan and to some extent Boigu as well, Ugar and Erub and Mabuiag and Badu. The explanations for the closeness of these relationships are probably varied but the fact of such relationships was recurrently described by the Islander witnesses in terms of the inhabitants of the islands being "really one people" or "one family". As Bully Saylor said of the Ugar and Erub people, "[they] are all the same family". Likewise, the late Walter Nona described the peoples of Badu and Mabuiag as "they's a family". Nonetheless, the evidence suggests this more inclusive sense of group and identity was not translated into distinctive property ownership arrangements between such islands - hence Julie Lahn's 1999 observation (as quoted in Dr Fuary's 2005 Connection Report for Yarpar and Uttu at 11): Warraber and Poruma may well identify as one family but that one family does not collectively own all land. Land is parcelled with particular families, with elder decision makers … Warraber and Poruma have close and mostly shared pre and post contact histories but within the specifics of land tenure Poruma people do not have primary rights to Warraber lands [nor Warraberlgal to Porumalgal lands].

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(b) Naghir 420 This island, as I have indicated, is the subject of an as yet unresolved native title land claim. No details of that claim are in evidence. Naghir was the only island which was inhabited at the time of the Cambridge expedition, but which is not now. It is high, rocky and relatively fertile and is visible from both Warraber and Mua. 421 The historical evidence (Mullins, 2008, [17]) is consistent with Naghir, along with Mabuiag and Dauan, being strategic centres in the west for the distribution of long range trade items and for intensive horticulture. Jack Billy said of the latter of these that he had been told by his father and grandfathers that Poruma, Warraber and Mua used the island as a garden place. The Islander, expert and historical evidence makes plain an ongoing connection between Naghir and the Central Islands and especially with Warraber. Haddon located Naghir in the Central island cluster group: 1904, 1-2. Naghir was the western-most of the Torres Strait Islands to have a "lodge" devoted to the Cult of the Brethren, itself a pre-annexation feature of the Central and Eastern Islands. 422 Nonetheless, there is also significant evidence associating Naghir with the people of Mua to the extent that Harris (1979, at 96) described the Prince of Wales-Mua-Naghir "community … as an integrated subsistence system". It was used as a place of flight in Mua's feuds with Badu and Mabuiag and there was considerable inter-marriage between the two communities. 423 The complication in drawing easy conclusions about Naghir is in some measure the product of events beginning shortly prior to annexation. As Mr Murphy noted (2008, at [136]): The Nagir community was severely depopulated in the precolonial period, partly as a result of reprisal killings by Europeans in retaliation for the massacre of the survivors of the Sperwer wreck. In the early colonial period Nagir was occupied by James Mills, a Samoan man who married Torres Strait Islander women, and some survivors of the original inhabitants. Nagir has not been permanently occupied since the 1960s.

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424 Islander evidence on Naghir's association with one, or other, or both of Mua and Warraber (or the Central Islands more generally) is mixed. On the issue of who were the Islander ancestors inhabiting Naghir at the time of annexation, I discount the evidence of those witnesses whose home islands are more remote from Naghir and who, while aware of Jimmy Mills, did not reveal any knowledge of the pre-annexation circumstances of connections with Naghir. For the most part such witnesses from the east simply asserted that the people who were on Naghir were Central Islanders or that it belongs to the Mills family (eg Alo Tapim of Dauar, George Mye of Erub and Keith Pabai of Boigu) while those from the more distant west asserted it belonged to Mua alone (Sophie Luffman of Mabuiag) or, contrarily, to the Central Islands (Alick Tipoti of Badu and Patrick Whap of Mabuiag). 425 The evidence of Father John Manas and Lillian Bosun, both of Mua, gives Naghir and its two satellites to Mua. What I take from their evidence is the contemporary use of the waters around these islands by the people of Mua without the need for permission. While Tom Jack Baira gives Naghir to Mua, he considered that the Kulkalgal had a relation with Naghir through intermarriage and could use its waters. 426 The evidence of the Central Islanders had the converse emphasis, but was more accommodating of people from Mua. Kris Billy from Warraber considered Naghir, Gitalai and Sauraz and "the surrounding seas are … shared". There are strong connections with Warraber but other people, "particularly Mualgal people, who still use the area", also have connections as do the Mills family. Jack Billy said Naghir was inside the Central Islands, but was also used by Mua people. George Lui's evidence was to similar effect although he said he did not "know the story from the Mua side". Ethel Bob thought Naghir was part of the Central Islands as did Lizzie Lui and Mareko Kebisu, both from Iama. 427 For my own part I am satisfied that Naghir, Gitalai and Sauraz were probably shared islands in the sense that the ancestors at the time of annexation were made up of some combination (or subset) of people from Mua and from the Central Islands (probably Warraber). Others such as Jimmy Mills were probably later coopted into that community. I am not at all in a position to identify who those ancestors might be and whether or not they are specified as ancestors of the present claim group. This does not matter. 428 For present purposes it is sufficient for me to say that I am satisfied that the waters surrounding these islands were, at sovereignty and now, shared at least by Islanders from Mua and Warraber. 429 This conclusion may be underinclusive but that is of no great consequence. I am not concerned with rights and interests in land. My concern is only with non-exclusive rights and interests in the marine areas. 430 The final matter I do emphasise is that Naghir and its waters provide a further example of sharing between Islanders from different cluster groups.

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(ix) Intra-mural allocation of rights 432 The State has made a geographically very circumscribed concession, the Commonwealth a much more expansive one, as to the areas in which native title rights and interests are possessed in the waters, reefs, etc of Torres Strait. It is important to appreciate the implication of this. 433 I earlier indicated that, in respect of occupation based rights and interests (as distinct from reciprocity based ones), it only was necessary to consider these at the level of individual island communities, save in those cases where areas were shared by two or more communities. How rights and interests are allocated within a particular community in accordance with the laws and customs, was, and is, essentially an intra-mural matter. It has not been contended that difference between island communities at least in this regard bore on the "One Society" issue. Nonetheless, to understand the diversity in the manner in which rights and interests in land and waters (particularly adjacent reefs and waters) are held as between island communities is itself instructive. It suggests how and why (eg for ecological, topographical and community organisation reasons) laws and customs can differ at what I might call the level of micro-allocation of rights and interests. 434 I intend merely to illustrate difference by reference to some only of the Islands. The consistency of Islander evidence on near-shore marine tenure is mixed. For the Top Western and Central Islands, the evidence for the same island is consistent. Otherwise for particular islands, for example, Badu, the system is less clear. This was in part attributable to inconsistencies relating to the extent of clan-based ownership of land and waters, clans, as I have indicated, being a subject upon which the Island's knowledge was often shallow. I would add that language difficulties and confusion contributed to the giving of contradictory evidence. 435 Boigu. Land, including beach areas, is owned by family clans, the sea areas are communally owned as are offshore sandbanks to the south and southwest (which are extensive). The dividing line between clan and family ownership and communal ownership is the "Sea Grass line" which is below the high water mark but above the low water mark. Keith Pabai explained why it became communal beyond the sea grass line: We need to survive … we need to share resources. Some lands have plentiful resources, some don't, so that's why we share.

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Society: Contentions and Conclusions 441 A number of conclusions emerge clearly enough from the evidence. First, the laws and customs acknowledged and observed in Torres Strait are not wholly uniform. Differences in content (or in understandings thereof) are discernible. Secondly, the precise manner in which rights and interests in land and waters (particularly near shore) are distributed varies across the islands of the Strait. Thirdly, the Islanders are not unified by a common mythology, a creation myth, or for that matter, a common traditional language. Fourthly, the Islanders self identify, and differentiate between themselves, by reference to their local communities. Fifthly, there is no traditional overarching authority or institution for the governance of the Strait as a whole. Traditional governance is a local community matter. 442 For the State and for the Commonwealth what is lacking, what is different and what is localised are fatal to the Applicant's one society claim. Particular emphasis is placed upon how the Islanders self-identity, their lack of a common traditional language and their localised land and marine tenure. While noting that in Sampi FC such factors did not defeat a "one society" claim, I reiterate that each case depends on its own fact: Alywarr FC at [80]. 443 The Applicant's case, as I have indicated, has been difficult to comprehend. It has been girded in needless complexity and abstraction. A clear consequence of this is that often, though for understandable reasons, the Respondents did not engage as fully as they might otherwise have done with important aspects of its case. Nonetheless, despite the obstacles it created, I am satisfied the Applicant has demonstrated the core of matters necessary to establish its native title claim. 444 The Respondents' defences, but particularly that of the State, have a deceptive simplicity. That character was exposed in Professor Beckett's cross-examination following a question of mine: HIS HONOUR: The second-last sentence, you begin: In this wider society - and then you talk about the most significant rights and interests regulated by laws and customs relate to marine areas and marine resources. Would I be correct in inferring from that that it is your view that the existence of this wider society is of little importance when one gets to considering rights and interests in land in particular islands? PROF BECKETT: Yes. HIS HONOUR: If that is the case, would I be correct in inferring that you are essentially saying that, when one is considering the rights and interests in land on a particular island, one meaningfully would talk of the community - the Islander community of that island … PROF BECKETT: Yes. HIS HONOUR: - - - it is the people on - of - it is the laws and customs of the people on that island that are the matters of significance on the issue of rights and interests in land. PROF BECKETT: In general terms, yes, I think that is the case. … HIS HONOUR: Now, can I ask - ask you two related questions. Do you - if that is the case, do you agree with Professor Scott's proposition that you can be a member of several societies at different levels of scale? PROF BECKETT: I'm - - - HIS HONOUR: That for - for one purpose - this is as I understood what Professor Scott was saying - - - PROF BECKETT: Yes. HIS HONOUR: - - - that, for one purpose, your society can be your island - - - PROF BECKETT: Yes. HIS HONOUR: - - - and at another level it can be the regional society. I think - that is, as I understood, what Professor Scott said. PROF BECKETT: Yes. HIS HONOUR: I think there was a - - - PROF BECKETT: Not at - for - not, for example, in the case of land which you raised earlier, but I think there might be other kinds of issues where you were, indeed, operating at a - a broader scale. And trade, I suppose - once again, we keep going back to trade - would be a case in point. Or perhaps the access to a shared reef or resource like Sassie Island. But that would be a case where one was not simply limited by - or subject to the laws and customs of one's own community, but operating at a more - a wider level. … MR HILEY: Professor, I just wanted to follow up on some of the questions that his Honour put just before the break. I think the - the questions were confined to interests in land. So I think the first question his Honour put was along the lines of whether you're of the opinion that the wider society is of little importance in considering interests in land on a particular island. PROF BECKETT: Yes. MR HILEY: If I could ask the same question, but to extend that to the marine areas immediately adjacent to a particular island, would your answer be the same? PROF BECKETT: I can't speak with so much assurance on the marine side of things, but that's my understanding. … MR HILEY: Yes. … going back to pre-annexation, on the information that you do have, I take it you would accept that the wider society is of little importance in considering interests in the marine areas immediately adjacent to land. PROF BECKETT: Yes. MR HILEY: Thank you. And - and that would apply to Sai - to fishtraps? PROF BECKETT: Yes. MR HILEY: And to fringing reefs? PROF BECKETT: Yes. MR HILEY: And - and I appreciate that you haven't investigated marine tenure further, but I suppose you would expect that - that - it also to apply to the whole of the marine estate of the particular island community. PROF BECKETT: Yes. I think that's true until you come to the point of joining with the marine estate of another island.

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(i) The NT Act and the splitting of the sea claim 449 One strand in contemporary Australian public policy proceeds upon the premise that it is important to protect the traditional way of life and livelihood of Australians who are Torres Strait Islanders and of Papua New Guineans who live as traditional inhabitants in the coastal area of PNG in and adjacent to the Torres Strait: PNG Treaty; Torres Strait Fisheries Act 1984 (Cth). That policy, though, is only imperfectly reflected in the NT Act. The recognition it gives to "native title rights and interests" is limited to those rights and interests held by Aboriginal people or Torres Strait Islanders: s 10, s 223 (and s 253 "Torres Strait Islander"); see also the Preamble to the NT Act; Gamogab FC at [2]. Such interests as persons from PNG may have which may be affected by a native title determination can only be protected defensively, if at all, by joinder as a respondent under s 84(5) of the NT Act: Gamogab FC. 450 There has been an issue in this proceeding as to whether "the society" whose laws and customs are being advanced by the Applicant is limited to persons who were, or are, Torres Strait Islanders, or whether it includes persons from PNG. My own view on this matter can be stated shortly. I am satisfied that there is a single body of laws and customs acknowledged and observed across Torres Strait, albeit they can have differential application in, and between, Islander communities. I equally am satisfied that there have been long-standing interconnections between some Torres Strait Islander communities and coastal dwellers of PNG (notwithstanding the relatively recent diminution in importance the Islanders appear to attribute to this: see esp Fuary (2000)). The modern boundary between the coastal people of PNG and the Torres Strait islands is an artificial, not a natural, one. It may well be the case that a corpus of trading and other laws and customs were shared between PNG coastal dwellers and Islanders and that long, regular and close historical contact may account for some apparent variations in the laws and customs of Top Western Islanders from those of Islands more remote from PNG. The state of the evidence does not permit me to make findings on either of these matters, let alone make a finding that historically and now, PNG coastal dwellers were and are united with Torres Strait Islanders in, and by, their acknowledgment and observance of the single body of laws and customs to which I refer. Nonetheless I consider that the question whether or not the relevant society extended - or extends - into PNG is, in any event, not one of practical consequence for the purposes of a native title determination application. The traditional interests, if any, of coastal dwellers cannot be the subject of such a determination and, of my findings, native title is not held communally by the members of the "society". 451 It is unfortunate that the sea claim had to be split into two parts. Given the obvious connectedness of the two, and the present and historical participation of the Kaurareg community in particular in the life and culture of Torres Strait (I note its apparent past alliance: Haddon, 1935 at 410; and its shared language with Mua), a more complete evidentiary base would have made for more sure-footed findings, both historical and contemporary about a range of matters in this proceeding. I advert to this because of the quite ambiguous attitude demonstrated by the Applicant to the Kaurareg. I would add that, to the extent the splitting somewhat artificially contrives the claim if not the claim group, that is a consequence of s 67 of the NT Act. I also indicated in my opening comments that the splitting of the sea claim precluded my expressing any view on whether the Kaurareg or the Gudang peoples belong to "the society" that is, on the Applicant's case, in issue in this proceeding.

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(b) The Laws and Customs 457 I have made, or foreshadowed, my conclusions on such of the various laws and customs propounded by the Applicant as I consider to have been proved. I would emphasise that together they display four attributes. 458 First, even though they ordinarily have only local application, most are common to the island communities of Torres Strait. I would instance laws and customs relating to descent rules, adoption, territorial control and permission, minor matters such as feasting, funerals, naming boats, etc and, importantly, elders. I emphasise this last because it is an institution of governance replicated in all local communities. 459 Secondly, I put to one side laws relating to land and waters. In those cases where there are discernible differences - these are, principally, laws and customs relating to kinship, marriage and affinal relations and totems - I do not consider such differences to be destructive of the one society case. 460 (i) In relation to kinship, I have inferred from the opinions of the experts which I have accepted that the close resemblance of the Eastern Island and the Western and Central Island systems bespeaks commonality notwithstanding some differences. It has not been suggested that in Haddon such differences decisively differentiated the Eastern from the Western Islands. I am not satisfied that they do so differentiate. 461 (ii) As to the laws and customs relating to marriage and affinal relations, I have found that, notwithstanding both differences in details and in understandings of particular laws and variations in their practice and force, these are sufficiently coherent in their essentials and they are applied across Torres Strait. Further, they do reflect the same informing principle of reciprocity and exchange, though this of itself would not warrant attributing a commonality to them were there apparently operative distinctions in other laws and customs as between local communities or cluster groups. 462 (iii) As to totems, I have found this to be a difficult matter to deal with because of the way it emerged. Despite Haddon's view to the contrary, I have found consistently with contemporary expert opinion, that the Eastern Islands had a system of tribal totems. The contemporary Islander evidence on the significance of totems is quite imperfect. I am not satisfied that the evidence permits a positive finding to be made that there is today a shared body of laws and customs relating to totem clans/tribes which is acknowledged and observed by the claim group (even admitting differences and variations as between Island communities). For the same reason, I am unable to make a positive finding that there were differing systems of laws and customs relating to totems among the communities of Torres Strait that were so significant in the purposes they served in the social organisation of each such community as to negate any reasonable finding of one society - or, for that matter, of four societies. Differences in totemism are not nearly sufficient to break the "close relationship" (to adopt Haddon, 1908 at 254) of the communities of the Strait. 463 Thirdly, there is an obvious commonality in the laws and customs which regulate an Islander's rights and obligations outside his or her own land or marine territory. I would instance the laws and customs relating to inter-Island marriage and affinal relationships, hereditary friendships and tebud, and permission and ailan pasin. I will return to these below. 464 Fourthly, without reiterating what I earlier said, I have concluded that the evidence on shared land and marine areas is consistent only with common laws across the Strait applying principles of continuing acknowledgment of prior occupation by ancestors and of descent and inheritance. What I need to emphasise in light of the Buru-Warul Kawa, etc determination and my conclusion in relation to Naghir, is that sharing is not confined to sharing within a cluster group. The laws and customs which accommodate sharing are not simply ones of individual island communities or of a cluster group.

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(c) Contextual material 465 In attributing laws and customs to a society or to societies, it is important to have regard to the volume of contextual material relating to the Islanders and their circumstances. The three matters that stand out in this respect are (i) the common marine orientation of the island communities; (ii) inter-Island "reciprocity and exchange"; and (iii) Islander self-identification and language. 466 Marine orientation. It can be said of the various matters pleaded under this heading in Points of Claim 4 [43] and mostly admitted in substance, that the Island communities have shared, and share, a range of marine-related knowledges, practices and characteristics which are reflected deeply and pervasively in their culture. This is unsurprising given they have inhabited this region for millennia and given their common use of "sophisticated sailing double-outrigger canoes" (to use Barham's description, 2000, at 299) to traverse it for a multiplicity of purposes. As Professor Beckett put it, their occupation of the region was "essentially maritime [in] character". When coupled with what the Applicant advances, convincingly, as an historical network of exchange connecting people (Murphy, 2008 at [301]), I consider that, whatever the impulses for diversifying change and difference over time, the Torres Strait environment and Islander use and understanding of it were likely to be forces for cultural convergence. Professor Scott's opinion was to this effect. He noted that the Islanders "did have constant historical interaction over long periods of time and they shared a similar environment, technology and demography": 2008, at [91]-[93]. 467 I have already quoted two general descriptions in Haddon (1912, at 4 and 229) of the Islanders' extensive knowledge and comprehension of the sea areas of the Strait. One (at 4) warrants reiteration: The whole area of Torres Straits from the Great Barrier Reef on the east to the deeper water in the west, and from the mouths of the Fly river to Boigu on the north to the northern point of Cape York on the south, was more or less known to the islanders; probably the Western and Eastern Islanders kept mainly to their respective halves of this area, but may have overlapped to some extent in the central islands and reefs. There is no doubt that practically every man had a very extensive and at the same time sufficiently precise knowledge of a large area, being acquainted not only with the special products of various islands, but with the position of sand-banks and reefs that are exposed only at low tides, and with the seasons for collecting the marine fauna of which they were in need. In this and in their gardening operations they were assisted by their knowledge of the movements of the stars, many of which they had grouped into named constellations. For these voyages they must have had a considerable amount of weather-lore and a knowledge of tides and currents.

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468 This is not a description of reclusive and isolated societies or communities. I would note as well in passing that in it Haddon again has returned to the Western-Eastern Island divide. I deal with that matter separately later in these reasons. 469 Inter-island "reciprocity and exchange". I have dealt in some detail with inter-island marriage and adoption and, in particular, hereditary friendships and tebud relationships and their significance in customary regulation of social conduct between communities. When one adds to these the necessary interconnections associated with satisfying food dependences and cultural exchanges, important elements in the framework of what might be said to be a "wider society" - as Professor Beckett puts it - are clearly discernible. 470 Identity and Language. If self-identification could properly be taken to be a sharp indicator of "society" in this matter, there would be thirteen societies at the level of island communities. If language was such an indicator, there would be five. I will deal with language later in the context of the Eastern-Western Island divide. 471 So far as concerns the apparent paradox between a "wider society" yet a local island based identity, I consider it to be more illusory than real. There was a time when, for many purposes, people of this country self-identified first and foremost by reference to their State of origin. Within the confines of Australia they had no reason for the most part to do otherwise, the more so if property and family were similarly located. 472 In Torres Strait, given the local operation of laws and customs as to descent which provided (i) an island (or "community") identity; (ii) one's place in the social organisation of that community; and (iii) a basis for inheritance, the Islander emphasis is unremarkable. Pre-annexation, they did not exist in a place where wider geo-political reasons would have been likely to have required of them a larger self-vision beyond, at best, that of their cluster group. 473 It seems to be common ground that a consciousness of Torres Strait Islander identity first, as a unique people and then considerably as later a political "identity", were post-contact and annexation phenomena. I should emphasise in passing that the finding of a society is not premised as of course upon a finding that the groups who constituted it had a consciousness of it. This they may or may not have had. In the present matter, while the advent of the marine industries prior to annexation may have enhanced the development of a pan-Torres Strait awareness amongst some Islanders, I make no finding of consciousness of a Torres Strait society at annexation. 474 Notwithstanding the basis upon which Islanders identify self and others, I do not regard identity as such as a useful indicator of a "society" in this matter. For reasons I have already given, a local community based "society" fails to accommodate the phenomenon of sharing island land and waters by two or more island communities. Further, accepting that infra-Island matters are characteristically settled by laws and customs having purely local application, the severing of Island communities for reason of identity ignores those laws and customs dealing with relationships between, and reciprocal obligations of, persons on different Islands. Such laws and customs, as I have indicated, are replicated across Torres Strait. Similarly it attributes no significance to laws and customs which, though local in operation (eg in relation to elders), are characteristic of all of the Island communities. Importantly, to use identity as the State proposes disregards context in a variety of ways.

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477 For near parallel reasons I also cannot accept the cluster group basis for four societies in this matter. I put to one side the potential problem, in any event, of Mua at annexation. Haddon (1935, at 64) described it as "the most northerly of [the Kauralaig] group of islands" whose people shared the same dialect and traded and inter-married with each other. I consider the unities in Torres Strait are more pervasive than simply between the Islanders of the individual cluster groups. Further the laws and customs of each cluster group are inadequate to describe the system of laws and customs in the Strait. 478 The evidence suggests that, while inter-island marriage was usually between cluster group related Islanders, it was by no means invariably so. I referred to Rivers' account of inter-island marriage of people of Gebar (Central Island) and Badu-Mabuiag (Western Island). As well there is evidence of intermarriage of the peoples of Mua, Naghir and Warraber and of Aureed (Central Island) and Mer (Eastern Island). With these came reciprocal obligations of affines. Sharing of waters between communities, though common within cluster groups, also occurred between islands of different groups, particularly between Mua and Warraber and Masig and the Eastern Islands. In saying this I recognise that the Commonwealth does not accept the Buru-Awial Kawa, etc consent determination. As I have indicated, that determination is not the only instance of inter-cluster group member sharing, hence the significance of my findings in relation to Naghir: and see "The Geography Issue". Tebud/trading relations were common between persons from different cluster groups. I already have illustrated this with the Central Islanders. Such relations were regulated by shared laws and customs. Further, there was, and is, a great commonality in the laws and customs applied in the four cluster groups (differences and absences notwithstanding). Distinctly, to focus the society on single cluster groups does not account adequately for the depth of interaction between islands in adjacent cluster groups. Again I would illustrate this with the Central and Eastern Islands and, for example, the Cults of the Brethren and the lodges from Naghir to Mer (Scott, 2008, [130]-[135]). Nor does it take account of the practical incentives to function cooperatively between such groups.

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(iv) Conclusion 488 In consequence I consider that the evidence supports the conclusion of Professor Beckett that the role of the Central Islanders between the Groups before sovereignty was such that there could be said to be a single society. They did not act as an "integrated polity" (Scott, 2008, at [112]), but had no need to. What they did, island by island, was to observe and acknowledge a body of traditional laws and customs. That body, though, was a single one. It admitted of some local differences both in content and in applicable laws. I do not consider that any one reason can explain those differences. I have referred to some number of possible causes of difference. The differences were not, in the scheme of things, of real moment for present purposes. For the most part, the laws and customs had, and have, local application. The exercise of local autonomy ought be expected to have produced some variances in practices and understanding over times. 489 What needs to be emphasised is that it was not only local applications of the body of laws and customs that were observed by Islanders. The observance of those that had inter-island applications has been well established. The two enduring symbols of the recognition of the bodies of laws and customs as such were the seeking of permission to take from another's land or marine territory and the practice of ailan pasin. 490 As I commented earlier in these reasons, if one were minded to give an analogy for the body of laws and customs - and it is a quite imperfect one - it would be of a quilt (to use Professor Beckett's metaphor) of united parts. The laws and customs which regulate the internal (or "domestic") workings, relationships, etc of each island community largely replicate those of other communities though not entirely or in all respects. The communities themselves are linked each to the others not only by these largely common "domestic" laws and customs, but also by common laws and customs which govern the relationship of one community's members to the members of another, both within and beyond the former's own land and waters. 491 In light of my conclusions and the concessions of the State and the Commonwealth, I do not understand there to be any abiding dispute as to continuity of the laws and customs found or as to these being "traditional". 492 My conclusion is, then, that the Applicant has established its one society case. There is an irony in this. The issue of authorisation apart, the answers to the question of native title rights and interests - which is, after all, the concern of the NT Act - would in all probability be the same whether my conclusion had been one, or four, or thirteen societies.

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(i) Reciprocity based rights 503 There is a considerable body of evidence and argument on this matter. I do not intend to lengthen these reasons by outlining it in any detail as I consider there is a short answer to the Applicant's case. 504 By way of preface, I should note that much of the discussion and, for that matter, obfuscation concerning these rights centred upon Professor Scott's triple-typology of "primary, secondary and tertiary" rights and upon how the latter two were properly to be conceptualised - as "rights", "interests", "expectations", or "privileges". Earlier in these reasons ("Reciprocity and Exchange (a) An Informing Principle), I referred to both Professor Scott's 2008 Report and his oral evidence to expose his views on reciprocity and reciprocity rights. I will not repeat here what was considered there other than to note the following. First, Professor Scott agreed with me that reciprocal relationships are status based - affinal, tebud, etc - and that to deny the rights and obligations arising out of those relationships is to deny the relationship. Secondly, reciprocity takes various forms, depending on the closeness of relationship of the people involved. Thirdly, as I understood his evidence, his secondary and tertiary rights were more than interests. They were rights and they gave access to the land and waters of another. 505 I have already accepted that the Islanders' society does have a body of laws and customs founded upon the principle of reciprocity and exchange and that that principle is dominant and pervasive in relationships in general. I am of the view the principle expresses in particular contexts and in varying degrees, notions of respect, generosity and sharing, social and economic obligations and the personal nature of relationships - notions, in short, which inform the Islanders' way or "ailan pasin". 506 There have been some quite number of examples in the Islander evidence of the rights and obligations of reciprocal relationships in practice: to provide an assured welcome, accommodation and sustenance to a visiting friend: eg Lizzie Lui; Lillian Bosun, ("I always give them a place to sleep"); to go fishing with, to share with, him or her: Walter Nona; to be provided with something you need: Kapua Gutchen; or to provide something to your friend if requested: Patrick Whap. The matter I would emphasise is that the reciprocal obligations assumed are situational in the sense of requiring the appropriate response to the friend's requirements of the moment - "If a person asks his thubud for help, then that person must help": Mebai Warusam; George Mye - and are multi-faceted, ie they are not limited, for example, to permitting the friend to fish, usually in the host's company, on the family's or community's marine estate. 507 For my own part I am satisfied that there are, under Islander laws and customs, status based relationships, for example, of an affine or thebud with a person having occupation based rights, which give rise to rights and obligations that are reciprocal in character in the sense that they will be enjoyed and discharged by one or other of the parties as the situation requires. What each party properly can expect of the other depends "on the closeness of the relationship of the people involved": cf Scott, 2008 at [223]-[224]. The relationships and the rights and obligations that arise in them are personal in that the discharge of the performance obligation is the responsibility, for example, of the Islander host (in the case of a tebud relationship) or relative and not of the island community and this is mutually understood by the parties to the relationship and is acknowledged by the members of the Island community. The relationship can be passed down generations. And a partner in reciprocity "can be denied" for reasons which "are valid and legitimate": Scott. As Kris Billy noted: "Thubud are like family; you can't say no to them, unless you have a very good reason." 508 In short, the parties to such status-based relationships have what properly are to be described as rights and obligations that are recognised and are expected to be honoured or discharged under Islander laws and customs. They are not privileges, interests, etc. So to describe them confuses the benefit or burden imposed with the possible forms or manner in which the rights may in a given circumstance be satisfied or the obligations discharged. I agree with Professor Scott, save only that the rights in question are not rights in relation to land or waters. They are rights in relation to persons. The corresponding obligations are likewise social and personal and can be quite intense in character. This emerges clearly in the Islander evidence, the predominant emphases being on helping, sharing, being hospitable. To suggest that because, in a tebud relationship, the rights provide a "passport" to the host, partner's island and, with permission, will allow fishing in the community waters of the host, simply diverts attention from the personal nature and the relationship-sustaining purpose of the rights themselves. I would add that merely because rights are to be satisfied in the host's island's areas does not mean that the rights themselves are ones in relation to those areas. I do not accept "a relation to" land or waters conceptualisation of reciprocity based rights as such. Neither does it resonate in the Islanders' evidence. 509 Accordingly, as the "real relationship, or connection" is between the right and a person (Ward HC at [577]), I find that reciprocity based rights as such are not native title rights for the purposes of s 223(1) of the NT Act. This conclusion does not deny such rights their character as rights under the Islanders' traditional laws and customs. 510 I should add that if, contrary to my view, reciprocity based rights could plausibly be said to be ones "in relation to" land or waters, there would, as the Commonwealth contends, be considerable difficulties involved in accommodating a conclusion to that effect within the scheme of the NT Act. I need say no more about that.

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520 The traditional laws and customs that gave these rights clearly envisaged the rights would be exclusive - hence the permission requirement, the past assertion of a right positively to defend one's territory, and the acute contemporary appreciation of one's own marine area and that of others. As I will indicate below, exclusivity would not be recognised by the common law, nor is it claimed in the determination sought. Nonetheless, as will be seen, the rights of group members to access, traverse and use their own marine territory will be recognised as they are not inconsistent with the common law's public right to navigate so far as it goes. 521 What is also clear on the evidence is that the uses made of marine estates are multifarious. They range from using the waters for cooking and hygiene, in operating tidal fish traps, as a "highway", as a place to hunt, to take resources etc. Moreover uses have changed with changes in technology. 522 The State objects that the terms "use and enjoy" in the context of non-exclusive rights are meaningless and the rights it encompasses ought be "defined more specifically": Sampi TJ [1072]. I agree with this in part. There is the risk that the composite formula "use and enjoy" might be taken to signify "possess and occupy": cf Sampi FC at [153]. That is not what the Applicant is claiming here. Shorn of the words "and enjoy", the description of the right is both apt and unobjectionable. There clearly are circumstances where greater specificity in definition may be not only desirable but necessary. But account must be taken as well of the context in relation to which the words are used. I consider that, in its generality, "use" is appropriate for present purposes - the more so because it is enlarged upon in important respects in the second group of claimed traditional rights. I am conscious in saying this that, in the joint judgment in Ward HC (at [52]), it was observed that in cases where there is no native title right to control access - … it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.

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In final oral submissions the Applicant resiled from this: "the claimed rights are not put on the basis that they're dependent upon territorial control." This withdrawal is understandable. The Islanders' use rights in their own marine areas, for example, do not necessarily presuppose territorial control. But the protect rights are not so easily disjoined from territorial control. The Applicant obviously appreciates this. It now proposes that there are two classes of protect right - "a class of exclusive rights and a class of non-exclusive rights". The problem, it is said, is that the English word "protect" does not have separate forms which conveniently distinguishes between the two. 532 There is evidence that the Islanders have engaged, and do engage, in resource conservation measures and have an awareness of the inter-generational need for this. There equally is some evidence of lawful remonstration against outsiders and Islanders from more distant places, who were engaging in practices which were considered to be likely to deplete resources or to harm habitat, or who were working in close-inshore areas (which areas, as will be seen, the Islanders perceive to serve a distinctly domestic function). 533 In oral evidence the Islanders were questioned about a range of hypothetical actions taken by others which were detrimental to the marine environment (eg breaking crayfish houses) or else were otherwise an affront to them and their ways (eg shooting or netting dugong). The responses were understandable and predictable but they hardly betrayed the existence of traditional rights of the types claimed. At best they reflected the need for some responsive but lawful action to be taken, the object of which was to avert, or to bring to an end, the offending conduct. 534 I have difficulty in understanding what the "protect" rights actually comprehend in the marine context of Torres Strait. The uninformative generality of the language of the rights exaggerates the difficulty: cf Neowarra, at [484]. I do not understand, for example, what actually are "places of importance" for present purposes. The Applicant's submission, I would note, though referring to conserving resources, is directed primarily at responding to perceived threats in, or to, marine areas. As I indicated in considering "Territorial Control", much could have been said by way of illumination of how the historic right Islanders asserted positively to defend (and manage their areas) evolved after annexation and was manifest in modern practices in a way which might explain the traditional rights they now are claiming. This course was not taken. 535 After making the unrevealing observation that "[t]he content of ancestral occupation based rights is territorial control" (my emphasis), the course taken has been to mould a set of "rights" to meet the circumstance that the Applicant necessarily must accept that their right of control cannot be enforced against others. And so have emerged rights, having still a predominantly control rationale, which justify lawful remonstration, the provision of information or discussion so as to dissuade another from engaging in particular conduct, reporting to, or invoking the aid of, civil authorities, etc. The rights, in short, claim an unelaborated entitlement to do whatever is appropriate in the circumstances to protect but which falls short of controlling the access and conduct of others. 536 I have noted on several occasions that the Applicant has conceded that it did not seek the inclusion in the determination of a native title right or interest as "having a nature or an extent" that would authorise a member of the native title holding group to control access by, or the conduct of, any other: emphasis added. That concession does not entitle the Applicant to emasculate and dismember a holistic traditional right (Gumana FC at [172]) so as to create a right or rights different from that which existed at sovereignty and which, unlike that traditional right, would secure common law recognition. 537 As was said in Alyawarr FC at [148]: [P]articular native title rights and interests cannot survive partial extinguishment in a qualified form different from the particular native title right or interest that existed at sovereignty.

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551 (v) In Bodney FC comments were made (at [175] and [178]) that are of particular importance in this matter. The Court observed: … the connection inquiry can have what may be described as a particular topographic focus within the claim area, the perimeter of which must itself be specified with reasonable precision: NTA, s 62(1)(b), (2)(a) and (b); Daniel [2003] FCA 666 at [113]-[117]. This focus has been apparent, for example, in those cases where the claim area includes within its boundaries portions of land or waters for which there is no evidence of use by the claimants, or which are inaccessible. In such cases the courts have shown a distinct propensity to infer such connection as was practicable with such land or waters from Aboriginal activities in the surrounding areas which were supportive of a connection to the general area within which those apparently unused or inaccessible areas were located: see Ward FC 99 FCR 316 at [262] and also [240]; Yarmirr TJ 82 FCR 533 at [91]-[98]; see also Daniel [2003] FCA 666 at [412] ff. … It is not uncommon for the traditional laws and customs of a community to connect that community to a claim area by connecting groups within the community both to each other (often in complex ways) and, respectively and immediately, to their own particular portions of the claim area (in the latter case by granting rights to, and imposing responsibilities on, each such group in respect of its portion). In such cases, it is entirely appropriate that the connection inquiry consider not merely evidence of the general connection of the claimant community to the claim area, but also the evidence of the particular connection of the particular groups and their members to their respective portions of the claim area: see Neowarra [2003] FCA 1402 at [353]-[356]. The latter evidence, we would suggest, will ordinarily be necessary in some degree if the claimants' assertion of connection is to be sufficiently manifest over the claim area as a whole - the more so, in communal claims, if rights and interests are held differentially across the community - though there can be cases where, because of long-standing occupancy of the claim area, the s 223(1)(b) inquiry (as distinct from that under s 223(1)(a)) will not loom large: cf Griffiths v Northern Territory (2006) 165 FCR 300 at [561]-[562].

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(b) Company/Family boats 557 I referred in the opening "Brief Sketch" to the "Company Boats" system which was introduced in the early 1900s. It was a system administered by the Queensland Government and lasted until about 1970. While it took various forms, its object was to facilitate island community and family ownership of pearl-shelling and trochus luggers and cutters. At its height, after World War II, it employed some 600 Islander men operating between 20 and 30 vessels. As Professor Mullins has indicated, while some research has been published about the system, it has been short on detail about the sort of day-to-day activities on the water that might further demonstrate the Islanders' close relationship with the sea. 558 In what follows I will all but disregard the Master boat system. These boats were not owned by Islanders. Their commercial imperatives were not subject to the restraints felt by Islanders. 559 There is evidence of aspects of this system which has some bearing on the Geography issue. First, company/family owned boats (I will not differentiate between them) were skippered characteristically by an Islander from the community or family to which the boat belonged and were crewed by Islanders mainly from the same island, or else from a number of geographically close islands. 560 Secondly, there is evidence that company boats tended to work in areas which, if not in their own marine estates, were in areas in which they had permissive use: eg Alo Tapim. Saibai Company boats, for example, worked the Mabuiag reefs south and south-west of Buru: Mebai Warusam; Central Island boats worked what was known as the Dugong Line which encompassed the reefs running south from Masig and Poruma to Atub (Dugong Island) while the Eastern Islands boats used the Murray Island line which ran south-west from Mer and included the reefs to Three Reefs and Seven Reefs: Kapua Gutchen. Gutchen further commented that: Today, the dinghies from the Eastern Islands and the dinghies from the Central Islands still normally keep to these areas.

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(ii) The Expert evidence 568 Mr Murphy's opinion was that save for the far western and far eastern portions of the claim area about which he was uncertain, there was and is a system for marine tenure that extends across Torres Strait. There are no gaps in this "tenure blanket". The Islander's conception of things was that their rights radiated out from their respective islands and extended to the point where they met with those of another community. At that meeting point, which was not a fixed boundary line, there is generally an area of overlap which is shared. The limitations of this "no gap" principle emerged sharply, but not only, at the western and eastern extremities of Torres Strait where, in the absence of further islands extending outwards, there is no obvious cut-off point to a community's marine estate. There Mr Murphy suggests, the estate extends "for an indefinite distance". As will be seen below, it is in these areas at the extremities - in the east out beyond the Barrier Reef into the Pacific Ocean and south down the Reef and, in the west, towards Indonesia, that the coherence of the claimed tenure blanket frays, although it does as well in several southern areas. 569 There is a distinct aspect of Mr Murphy's evidence to which it is appropriate to refer because of its significance for an issue raised by the Commonwealth concerning the notion of a marine area "belonging to" a community. In his cross-examination by the State the following exchange occurred: MR HILEY: Okay. I suggest to you that, in relation to what I'm calling the open sea - that is, areas of sea somewhat distant from a particular community - that there may not have, in fact, been any rules at all, any - any laws saying who can go there and who can't go there. KEVIN MURPHY: Well, that's not my understanding of Islanders' conception of things, but they believe - I think I can use that word - that their rights extended to the point where they've met with the rights of - with a - with - of - of another group - - - MR HILEY: With the next - - - KEVIN MURPHY: And sometimes they merged in a shared area, which was - it seems to me, to be generally the case there's an area that was regarded as shared between them. So there's a zone, a shared zone somewhere between two places. MR HILEY: Okay. KEVIN MURPHY: But rarely a - a straight line in the sea: our place goes exactly up to that point, and not beyond it. MR HILEY: So it's one thing for - I hear what you say, but I suggest it's one thing, on the one hand, for Islanders to say, "Yes, I've got a right to go there", or privilege, or whatever, but - "I'm allowed to go there" - that doesn't necessarily infer that there is a rule to that effect that relates to there, to that lace. KEVIN MURPHY: But they're not just saying they've got a right to go there; they're saying that it belongs to them. MR HILEY: Okay. And that - that, again, is - that word "belongs to", is that a - - - KEVIN MURPHY: Is the property of, I suppose, is the translation. MR HILEY: Yes. Is that a - but that - that - I suggest that would be - rarely be a word that people would use to you. That's an inference that you've drawn from things that people have said - namely - - - KEVIN MURPHY: Oh, they say that word all the time, "belongs" - - - MR HILEY: Belongs to. KEVIN MURPHY: Mm.

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575 On the delimitation of the marine estates of a community or its members, his evidence was that (a) Islander conception of sea estate places more emphasis on the idea it radiates from a source, this commonly being spatial projection outwards from the shore; (b) the nearer one is to that source, the greater the intensity of feeling about defending one's estate, the further from it the easier the acceptance of comingling and of having overlapping or shared rights with neighbouring communities; (c) boundaries between neighbouring communities are somewhat porous and shifting; and (d) pragmatic rules and compromises are employed in the delimiting process. He referred, for example, to the "[p]rinciples of adjacency and proximity": a division roughly equidistant between two inhabited islands tends to be accepted as a legitimate guideline as does the claim to a reef by the inhabited island most proximate to it. As I will indicate below, there was a body of Islander evidence to the above effect. 576 When asked the meaning of the term "home reef", Professor Scott replied it was a "context sensitive term" and could mean, variously, the attached fringing reef of an island, the reefs for which permission must be sought belonging to a home island, or all of the reefs of a community's marine estate. The Islander evidence reveals such varied usage: George Mye, for example, used the term figuratively to mean a reef "closer to home"; George Lui so described a reef about four kilometres away that could be seen from the home island beach and to which people have travelled from time to time for a very long time; and Sophie Luffman thought of Kuiku Pad as our "home reef": it is used "daily" and "by everybody" and "protects and shelters Mabuiag". 577 Finally, it is necessary to digress and to refer to a matter raised by the Commonwealth against Professor Scott and also Mr Murphy. It relates to what was referred to as a "beyond the horizon rule". In a 1999 article written by Professor Scott and Monica Mulrennan on land and sea tenure at Erub, it was said (1999, at 159): Exclusionary practice, of the kind described by Peterson and Rigsby (1998:3), is one aspect of sea tenure. But the emphasis at Erub is as much on the right to share as the right to exclude (the two are, of course, not necessarily contradictory - a decision to share implies that, in principle, one could also decide not to share, at least under certain circumstances). In practice, exclusion is variable through a field of reciprocity that is differentiated spatially (on an axis from garden and residential land to the seaward horizon and beyond) and at levels of social scale. At one end of the scale are gardens and fish traps, from which local non-owners are excluded (but whose produce may be shared). At an intermediate position are sea territories where access is limited to home island communities, or inter-island allies. Beyond even these horizons, particular clans enjoy the rights to tell the stories and utter the songs relating to particular totems, winds, and stellar constellations whose use can hardly be confined to a particular community.

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578 Cross-examined on their expressed view that "visual surveillance … is central to the regulation of territorial rights and resources", Professor Scott responded that he was speaking practically, not jurally and that beyond the area of visual surveillance, as you cannot control it effectively, you are more likely to say that this is an area for sharing. 579 Mr Murphy in turn was asked whether the distribution of marine estates included a concept of an "horizon of visibility"; that is "you can protect or exclude as far as you can see but beyond that … it may be a situation … of shared use or anyone can use it." He agreed that he had heard people at Mua try to apply that principle, that he had heard discussion of it during the court hearings at Poruma and he was first told about it by an anthropologist who had done research with Kaurareg and Mualgal people. 580 The Commonwealth relied upon such evidence for the submission that visual surveillance, facilitated by the seaward aspects of island estates, is central to the regulation of territorial rights and interests. I will deal with this submission below. 581 Turning to Professor Beckett, he candidly admitted that he could not speak with so much assurance on the marine side of things, although he considered that if contemporary testimony was any guide, marine estates usually abutted on one another. Importantly for present purposes, Professor Beckett made the observation of the Meriam people (2008A at [145]-[146]) which, despite objection, is clearly admissible: In my opinion, based on recent interviews, and a reflection on my experience over the years, a gap has emerged over the years between formal statements of boundaries and what waters are used at any given time. If, as Scott and the Meriam claim, the boundaries date from a time before Annexation, this is only to be expected. The Meriam have ceased to use outrigger sailing canoes, and they have ceased to carry out long distance trading for items such as ochre, or to procure conus shells to trade to Papua. For pearling (and the related activities such as hunting) they used luggers and cutters from the late 19th century to the 1960s which having keels, could not go over the reefs the way canoes could with shorter draft. Bęche-de-Mer, which was the first commercial fishing item, could be found in the vicinity of Mer and Dauar, though also around the other Eastern and Central Islands. Trochus boats worked in the vicinity of the island, or near the Barrier Reef, or down the east coast of Cape York, with periodic trips to Thursday Island to unload. (I do not have a comprehensive list of the other places they worked.) Luggers and cutters could all be used for hunting turtle, something usually done when the men were returning to the island; sometimes a turtle would be sighted on the way home. Between 1936 and 1941 Mer had no luggers, though some men worked on Master Boats; virtually all boats were seized during World War II. As stated earlier, Mer had two luggers between 1946 and 1961. During this period, the people had only flimsy plywood dinghies for subsistence fishing, which could not be taken far from the island, though they were used to gather trochus on neighbouring reefs. The aluminium dinghies with outboard motors, which came in during the 1970s, were more robust, apart from the expense of fuel, but taking them too far from the sea lanes was risky in case of a breakdown. These boats did not have sails, so that if fuel ran out or the engine broke down, the travellers could only hope for a passing vessel. Even so, apart from fishing trips, Meriam could take their boats as far as Daru for shopping, or to Masig to catch a plane (before Mer had its own air strip). I do not know whether Meriam boats engaged in either subsistence or commercial fishing in the vicinity of the Central Islands. In sum, according to the kind of vessel available and the purpose of the trip, Meriam traversed particular parts of their sea territory, and beyond. The blocking out of traditional clan and island sea territory is, in this sense, an abstraction, which provides space for the different activities at different times and periods, that engaged Meriam over the centuries.

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582 Dr Sackett's view, based on the literature to which he had access and the draft reports of the Applicant's experts, was that he was unable to form an opinion on the geography issue. This was because of the sketchy, relatively inconsistent and contested evidence regarding the extent(s) of marine tenure. 583 There is a body of scholarly writings that has been tendered by the parties which in varying degrees is said to throw some light on the geography issue. I have already indicated my views on the Johannes and MacFarlane pieces that were tendered by the Commonwealth and the State. I consider them to be of no assistance at all for NT Act purposes on the present issue. While they may have been of assistance in ascertaining what at the time were Islander views of the then traditional marine fisheries, they do not illuminate what were, and what remain of, the rights and interests in relation to land and waters possessed under the Torres Strait Islander Society's laws and customs. 584 Criticisms and conflicting views have been expressed over other writings as well. The only further instance to which it is profitable to make any reference is to works of Bernard Nietschmann. Professor Scott describes him as having done the most detailed and rigorous ethnography of marine tenure in the Western Islands. In a 1985 UNESCO publication to which he contributed a chapter, "Torres Strait Islander Sea Resource Management and Sea Rights", Nietschmann wrote of Mabuiag, the subject of his study, that (at p 138): The sea territory used and traditionally claimed by Mabuiag Islanders embraces approximately 640 square kilometres, including 190 square kilometres of reefs. Kuiku Pad is referred to as Mabuiag's "home reef" and it delimits the southern boundary of Mabuiag sea territory. Westward, the end of Zug Reef marks the extent of the island's sea area. Running 35 km northeastward from the island are a series of reefs, from Ngazi to Numar, collectively called Orman Reef by Europeans (whites). These reefs and adjacent waters are Mabuiag territory. The western edge of Kuiku Pad and nearby Bufu Island establish the southeastern edge of Mabuiag sea claims, which extend to the northeast along the big reefs. The extent and limit of the reefs are the decisive markers of sea space for the Mabuiag Islanders; the waters surrounding the reefs and the channels between the reefs and islands are all Mabuiag waters. The water boundaries of Mabuiag sea space are not carefully delimited. (Emphasis added.)

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(iii) Islander Evidence 588 In its submissions on the "Society issue" the State made the following observations: 587. The indigenous witnesses, without exception, identified particular areas within the claim area as their group's area - as 'belonging' to their (island community) group. In many cases they also identified areas that were shared by their group with other neighbouring groups. Where detailed evidence was elicited in relation to particular places, the evidence revealed, for the most part, that the witnesses' understanding was detailed and precise, not off-hand or approximate. 588. This in turn suggests that the divisions and distinctions that the witnesses identified were well understood (even if not in all respects unanimously agreed amongst the witnesses), meaningful and relevant. It is submitted that the probable explanation for this is the pre-eminent importance of this "ownership" of country by the people concerned. None of the witnesses suggested that the country which they considered belonged to their group was determined by some sort of intramural process involving the other groups in the region. Each of the witnesses described the area appropriate to his or her community as deriving from the community's historical association with the area. … 590. A feature of the evidence, and in particular the oral evidence, has been the remarkable ability of witnesses to identify the local group (or groups) to which particular places and areas belong. In the overwhelming preponderance of instances the particular island communities were identified as the owners of places and nearby areas. … 592. A further feature of the evidence was the recurring references to "permission". This involved an expectation that people would seek and obtain permission when using an area which was not theirs. Whether, this is properly characterised as seeking permission or merely "letting them know" is unimportant for present purposes. What is relevant is that there was a clear sense of places belonging to groups at the island community level.

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(a) The evidence of Kris Billy 591 Kris Billy, who was 56 when he gave evidence, was born at Poruma but lives at Warraber. Since leaving school when he was about sixteen he has spent most of his working life crayfishing or trochus fishing. In his affidavit he described the many trips he took as a boy with his father to numerous islands, reefs and sandbanks in the Central Island area (including down to Atub which is in the Part B sea claim area). The names of these and other places were marked on a map attached to his affidavit. He said he learned about them all "from my parents, my uncles and other old people". 592 He worked for many years, though not continuously, in his mother's family's business, mainly on a boat called the Suba. The following is his account of his working on that boat: 55. During the crayfish season, we started work around Warrior Reef, Tudu, Dungeness Reef (Tidiu) and Bet Reef. We used to go into Yam Island to let the council there know that we were going to be fishing around Warrior Reef and Tudu because these places and the seas around them are part of the Yam Island area. It's the same today - if I want to go crayfishing at Warrior Reef, I would let Yam know. Yam would never say no to me, but it is gud pasin to ask or let them know. If we were going to be fishing around Dungeness Reef, we would just go. … 56. After weeks or even months in that area, we moved to the Cumberland Passage area and worked on reefs such as Gurigur, Nepkem, Gau Gau and Seriam Gau Gau. This area is quite a long way from any of the community islands. It is east of Poruma and south of Yorke Island and Erub. 57. When coming to the Cumberland Passage from Tudu, Warrior Reef or Dungeness Reef, we usually stayed overnight at Yorke Island with relations. If we didn't stay overnight, we would at least call in to the island. We told them where we were going. They were always happy for us to be working in the Cumberland Passage area. Islanders understand how we need to be able to make a living from the sea, as there are not many other ways of making a living.

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593 His oral evidence on the Central Island area reveals much about his island's and other islands' own and shared marine territories. It was particular, detailed and quite lengthy. The following are two short excerpts to illustrate it: MR KEELY: So I'm just, so just to recap where we are, Kris, I'm talking about the area between, say, Poruma and Masig. So you've said Moian belongs to Poruma; maybe if we come the other way from Masig there's a place there called Kebi Kein, I think you mentioned Au Kein before, but say just deal with Kebi Kein for a minute; does that belong to anyone? KRIS BILLY: To the Yorke Island people. MR KEELY: And Au Kein? MR KEELY: To the Yorke Island people. MR KEELY: Then somewhere round about the middle, what's there? I'll tell you what I'm thinking about, Aureed; do you know Aureed? KRIS BILLY: Yes, well in my knowledge Aureed we used to share that place, Yorke Island and Warraber and Porumalgal and Yam Island, yes. MR KEELY: So that's a shared area in the middle, and what about as you go towards Masig from Aureed, how do you describe those reefs and sandbanks and waters? KRIS BILLY: Well it's belong to the Masig people. MR KEELY: And if you go from Aureed across towards Poruma, how do you describe the reefs and sandbanks - - - KRIS BILLY: This belong to the Porumalgal. MR KEELY: And the waters too? KRIS BILLY: All the waters. … MR KEELY: … If you come from Sassie and Dungeness back this way towards Poruma, how do you view the waters, the sandbanks, islands and so on? KRIS BILLY: Well, those islands are close to Poruma, like Uttu, Yarpar, Timan Sandbank, Beka Sandbank, Moian, Gagainab, they belong to the Poruma. MR KEELY: And if you're going from Dungeness, Sassie, across towards Yam, those waters there look like they might be deeper waters, are they? KRIS BILLY: There's plenty of sandbank in the middle there. MR KEELY: There are sandbanks? KRIS BILLY: Yes. MR KEELY: Those waters, are they used, do you know? KRIS BILLY: Yes, for pearl shell. MR KEELY: Pearl shell? And what about today? KRIS BILLY: No, we only use this place here because it's too deep, not too deep, but the sandbank, but we use this place Zegey, they use Zegey and Tidiu. MR KEELY: Are you talking about Porumalgal people? KRIS BILLY: No, Yam Island. MR KEELY: Yam Island people? KRIS BILLY: Yes. MR KEELY: Do you know whether they do trawling for example - - - KRIS BILLY: Yes. MR KEELY: - - - and deep line fishing? KRIS BILLY: They do the same thing as we do in Coconut, Yorke and Warraber. MR KEELY: In the deeper waters? KRIS BILLY: In the deeper waters, yes.

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(b) The Evidence 594 I would note at the outset that the Islander evidence is as one in not asserting a land-sea dichotomy. Despite variations between communities as to how rights are allocated across and beyond the tidal zone, the Islander evidence is consonant with both the idea of spatial projection (though not its limited extent) identified by Haddon (1908, 167 fn 1) and to the concept of the marine territory radiating out from a community's islands (which is agreed to by the anthropologists). 595 The evidence is overwhelming that that radiating out does not stop when fringing reefs or beaches are crossed and deep water is met. It incorporates deep waters. I would add, in light of the State's exclusion of deep waters from its concession, that Kris Billy enlarged above on the use made of such waters, as did other witnesses. He indicated in evidence-in-chief how the deep waters were "trawled" to catch mackerel, barracuda and trevally. Other deep water fish were caught using fishing lines. Coral trout was caught that way: Kapua Gutchen. Some number of hunting or fishing activities could only be conducted at all, or else at certain times, in deep waters, for example, turtle hunting - a fact recognised by Haddon, above, and attested to by a number of Islander witnesses: eg Father John Manas. 596 The Islanders claimed not only the physical features in their marine territory - the reefs, sandbanks, rocks and seabed - they claimed the waters themselves: MR KEELY: So you've given names of some reefs and sandbanks and perhaps some rocks, as well, in the Erub area. My question to you is this: what do you say about the waters that flow around those kinds of places? KAPUA GUTCHEN: The - the water that flow around the places also belong to Erub, and - because it's a highway for us to go from Erub to these places and come back. MR KEELY: How do you look at those waters? You've - you've said you think they belong to Erub; is there anything else you can tell us about how you feel related to those waters, how you feel connected to them? KAPUA GUTCHEN: Yes, because they - they were given names by our ancestors, and they also contain the resource what is used by our ancestors, and the living things that are there within these waters in the area surrounded - surrounding Erub.

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597 The State emphasised early in its submissions that the evidence of the Islanders was of "utmost importance". What is of some mystery to me is why the State, in its concession and in its submission on the Geography issue, invites me to disregard the Islander evidence in favour of its "adjacent area" submission. I have no hesitation in refusing to do so. 598 The primary issue that needs address is the reach of the marine territories or shared marine territories of the island communities. I have earlier indicated that native title rights and interests "possessed under" a society's laws and customs must be "the creatures of", "sourced in", "derived" from, or "rooted in" those laws and customs: Yorta Yorta HC at [50], [33] and [41]; Ward HC, at [20]. Further, they "do not for their vitality require recognition by someone other than the person who asserts them": Neowarra, at [365]. I am satisfied, as I will indicate below, that the territorial extent of native title in this matter was, and is, determined both through the Islanders' laws and customs and by criteria and indicia which emanate from, and effectuate, those laws. 599 First, to discount several matters. The Commonwealth has suggested that the evidence yielded up a "beyond the horizon" rule as a marker of a community's territory. To reiterate, its contentions are that territorial control helps to define the geographing extent of the rights of an island community and that visual surveillance from their island is central to the regulation of territorial rights and resources. The so-call rule is an extrapolation from the evidence of Professor Scott and Mr Murphy. It is the case, as Professor Beckett agreed, that the "reefs and waters around an island" which he called a protected zone, were well policed to the seaward horizon. It is unsurprising then that the permission requirement had particular purchase within that area - the more so because, as several witnesses acknowledged, it was the area used by Island communities to satisfy their daily needs for fish, etc: see below. This said, it was not suggested to any Islander witness, and none volunteered, that their community and/or their shared territories did not extend to places beyond the horizon. On the contrary. As will be seen, to accept the "rule" would be to restrict impermissibly the evidence; would underplay the significance of sharing by communities the further away one got from inner areas - a matter to which Professor Scott was attentive; and would be to adopt a quite arbitrary rule for claimed, but distant reefs, the horizon being measured seemingly from the community's home island. 600 None of the few Islanders who were questioned on the matter accepted that there were "gaps" or "empty areas" between the marine territories of neighbouring communities, irrespective of the distance, small (eg Mabuiag, Badu, Mua) or large (eg the Central Islanders and/or the Eastern islands) between them. So when Sophie Luffman was asked whether there were empty areas for which nobody speaks in the waters between Mabuiag, Iama and Warraber, she replied: "No I never heard of that". She had previously given evidence of the meeting up of the waters of the three islands. Jack Billy gave a like answer to such a question in relation to the Kulkalgal (Central Islands) area; though he did go on to accept that there were areas that were not used because they were too deep: see also Tom Jack Baira. I will return later to this distinction. Kapua Gutchen's response to the suggestion of empty areas in the Strait was: KAPUA GUTCHEN: There - I don't think there's any empty areas in Torres Strait that no island people could - could not speak of, or - is that the right English? The empty areas I consider is west of all the Warul Kawa area to the west of Boigu and all that, and to the Ashmore Reef and Eastern Fields in the Pacific Ocean. MR KEELY: Where are those two places: Ashmore Reef and Eastern Fields? KAPUA GUTCHEN: Ashmore Reef is nearby Murray to the south, and Eastern Fields and Boot Reef are more out to the east, way out in the Pacific Ocean or Coral Sea.

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609 There is much evidence about song revealing sea knowledge: see eg George Lui's evidence; but not about ownership of places. 610 I intend to deal relatively briefly with the criteria used to identify when a place belongs to a community or to communities. In taking this course I will focus almost exclusively on what the State describes as "distant areas" beyond an inhabited island's fringing reefs, low tide elevations and nearby uninhabited places, and in particular on reefs and sandbanks. I take this course, not only because of the way the State challenges the Applicant's case, but also because the various consent land determinations as I have already noted, have acknowledged many of the uninhabited islands, islets and rocks belong to, or are shared by, island communities. That, as I will indicate later, has clear implications for the ownership of the waters between such uninhabited places and their owner islands under the Torres Strait Islanders' law and customs. 611 The fundamental criteria of ownership of a place, as has been already discussed at length, are ancestral occupation and use of that place and subsequent, continuing Islander acceptance thereof. It is recognised that mere use, even repeated use, does not necessarily lead to the conclusion that the place so used belongs to the user's community. The marine industries were conducted on precisely this basis and Kris Billy's evidence on working in another community's area exemplifies this. More is needed. 612 As the State has put it, the witnesses described the area of their own community's marine estate "as deriving from the community's historical association with the area" - hence the significance of Alo Tapim's evidence I referred to earlier. That association, with for example a reef or sandbank, was for the most part evidenced in one or more of three ways. The first simply expressed their oral tradition: they were told by their fathers, uncles, grandfathers or elders that it was "used" by them, or by their grandfathers or their ancestors. Much of this evidence, which could be interpreted as relating to post-annexation use, is in language of such generality as to have little probative value. Moreover, it is by no means clear that when the term "grandfather" is used, it is used to signify a particular person or simply "ancestors". I would add that, for the purposes of understandings said to be based on oral tradition, I give greater weight to the evidence of the elderly witnesses, for example, the late Walter Nona, George Mye, Bully Saylor and Gertie Bigi, and to those witnesses who have had long experience in the marine industries. This said, I am satisfied, that there is evidence drawn from the oral tradition which finds support in Haddon and the historical and archaeological evidence to which I have referred, from which it can be inferred a community's association with a place or area predated sovereignty. The second basis for association related to continuity in use. The area in question had been used by their fathers, etc in the lugger days, the implications (not universal) being that this reflected a then continuing use and that use has persisted. The third related to naming of the place. I have referred both to Haddon's observation that "[a]ll the islands however small, every large sandbank and many coral reefs are named" and to Kapua Gutchen's on the sea places that "were given names by our ancestors, and they also contain the resource what is used by our ancestors". I would add to these Walter Nona. Having said that named islands on the west side of Badu belong to Badu and were used by them, he added "those names put by those ancestors" from Badu. While some witnesses claimed an island or reef for a community, for example, Koey Maza because it had a Mabuiag name (cf Patrick Whap), others, for example, Alick Tipoti accepted that "there can be places that have names in the Badu language that don't belong to Badu", but he went on to acknowledge, as Alo Tapim did, that the big factor in identifying places was use by ancestors - hence Bully Saylor's statement: There are a large number of places in the waters around Erub that have language names that were given by the ancestors of Erubam Le. The islands, sandbanks and reefs all have names. Even some of the bommies, which are large underwater columns of coral, have names.

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(d) Using "landmarks" to identify marine territory 616 This is best explained through examples revealed in the Islanders' evidence. 617 (i) The waters between a community's home island and a named landmark (eg another island or reef) belonging to, or shared by, it. The Islander evidence is that, save in exceptional circumstances, such waters belong to that community whether the landmark be nearby or distant. The Islanders, as a rule, claimed the waters between their home island and relatively close by landmarks on this basis. On this basis Daisy Kabay, for example, claimed for Masig the waters between it and Umagar several kilometres to its north; Kapua Gutchen, the water "highway" between Erub and Edgor, the Tobin Cay area, "Seu and all the surrounding reef"; Father John Manas, the waters to the north-east around the islands of Kulbi, Zagarsub and Iem; and Nelson Gibuma, Boigu to Buru. But equally, and on the same basis, the waters to more distant "owned" islands were also claimed; Kapua Gutchen, the waters from Erub to Maizab Kaur and Rebes; Lillian Bosun, Mua to Naghir, Sauraz and Gitalai; Walter Nona, Badu to Cook Reef; Nelson Gibuma, Boigu to Warul Kawa; Kris Billy, from Mer, Erub and Ugar to Three Reefs and Seven Reefs. The exceptional cases were those where, because the landmark itself was shared with another community, the waters near, around, or leading to, that landmark were also shared. Such was the evidence relating to Warul Kawa, which was shared by Boigu, Dauan, Saibai, Mabuiag and Badu and to significant areas of the Central Islands. Equally exceptional for different reasons were the waters between Mua and Mua's side of Tuin which were shared with Badu as this provided Badu's route to Kubin on Mua: Alick Tipoti. 618 (ii) The waters between one island community and another. Subject to the possibility of shared use (which was, and is, common in areas of all four cluster groups), the evidence suggests that, if there is a significant expanse of water in the central area between the two islands which does not itself contain named landmarks belonging to one or other of the communities, their respective marine territories cross over in that central area and ordinarily in an area which is itself shared by them. So according to Nelson Gibuma, between Boigu and Saibai: Oh we split it in half. Saibai got their mark, and Boigu got their own mark.

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But if this suggests a precise division, it is undercut by the general sharing of use of waters in the Top Western area: see below. Both Sophie Luffman and Patrick Whap gave evidence that when one went east from the Mabuiag reefs towards Iama you meet with Iama waters and, if going south-east, you would meet up with Warraber waters. Sophie Luffman did not know where the transition occurred. Patrick Whap, while insisting "you cannot put a line across the ocean", said the division was equidistant between Mabuiag and Iama and Warraber respectively. He could not usefully explain how that division worked in practice and whether sharing in the centre was accepted. The way he put it was that "the spirit will tell you which boundaries you are entering into". Kris Billy has the Warraber and Poruma waters meeting up in the middle area between them. Nonetheless, for other reasons, their use is shared. Though not the subject of direct evidence the reasonable inference on the available evidence is that the waters between both Dauan and Saibai, and Gebar (which belongs to Iama) merge somewhere to the north of Iki but in the Top Hat area. Gebar was previously an inhabited Island. Iki (Sapul Maza) is a reef north-east of Gebar. Mareko Kebisu's evidence is that it belongs to Iama. Much further north of Iki is Adrian Reef which I infer from Mebai Warusam's evidence is in Saibai waters. Applying the equidistance rule - and it is reasonable to do so - the place of merger is likely to be where I have suggested. 619 (iii) The waters between two (or more) island communities towards the centre of which there is a named landmark shared by the communities. Subject again to questions of wider sharing, the evidence is that such a landmark will divide the marine territories of the communities. There are many instances of this in the evidence. Bully Saylor explained the boundary between Erub and Mer thus: MR BLOWES: Have you got a way of knowing whether you're half - when you're halfway between Murray and Darnley? When you're on a boat out there can you tell when you're about halfway? BULLY SAYLOR: Well, you tell you're halfway because you look at Murray Island and you look back to Erub and Darnley, you can see that both island seems to be you in the middle, and that is halfway. We always class Meri as halfway. MR BLOWES: Meri? BULLY SAYLOR: Big Meri. MR BLOWES: Alright. And on the other side of those reefs, in your understanding from your ancestors, is that other side of those reefs from there on to Murray Island belong to anyone? BULLY SAYLOR: Belong to Murray Island people. MR BLOWES: And this side? BULLY SAYLOR: Right up to - you mean from Meri or from Murray? MR BLOWES: Yes, from Meri - from Meri reefs back this way towards Erub? BULLY SAYLOR: Well, it might be the Erub people.

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George Mye gave evidence to like effect about the Meri reefs. He did this in the context of explaining sharing of areas: the closer to home, the area is that community's; further from home, the area is used communally. The following are merely a few examples of a shared landmark dividing marine territories, albeit ordinarily with some area of shared space around it: Kris Billy, Naghir between Mua and Warraber, Aureed between Poruma and Masig and Dungeness and Sassie between Iama, Poruma and Warraber; Mebai Warusam, Buru (and its western reefs) between Boigu, Dauan and Saibai and Mabuiag. I would note in passing that Mebai described Buru as "a cross-roads for everybody travelling between Thursday Island or Western and Top Western". Finally, the late Walter Nona used the "little islands" of Yargas, Tik and Urukaran to divide the channel between Badu and Mua. 620 (iv) A named landmark closer to one inhabited island than another. Such a landmark, ordinarily, will belong to the closer island as will the waters around it and between it and that island unless there are other indicia to the contrary. This proximity (or "closer to") principle probably expresses a more complex judgment based more on naming, use, ancestral occupation etc. It was referred to by some number of witnesses. So Alick Tipoti, for example, considered the "small islands" south of Badu and Mua and geographically close to both islands were shared, "whereas the ones that are close to Badu are mainly occupied by Badulgal". 621 When one aggregates the examples, the common thread in how the marine boundaries between inhabited islands are determined is a notion of rough equidistance: see Nelson Gibuma. That cannot be applied at the extremities of the sea claim. This is of little consequence for present purposes both to the north of the Top Western area (because of the territorial boundary with PNG) and to the south of the Western Islands (because of the Part B claim). But it raises problems with the claims made to the north, north-east, east and south of the Eastern Islands; to the south-west of the Central Islands; and to the west of both the Top Western and Western islands. I expressed my concerns about dealing with the extremities at the hearing. The evidence on marine estates in these areas is sparse. I will deal with the claims to the extremities separately in my Geography conclusions. 622 A distinct notion is also apparent in the evidence. Landmarks (named reefs, sandbanks, etc) characteristically were, and are, places for fishing etc. While the areas between used landmarks within a community's marine estates may, or may not otherwise be used, eg for passage, hunting, or deep water trawling, they are nonetheless considered to be that community's waters. The "no gap" notion - or what Professor Scott calls "ubiquity of ownership" - probably explains this. For this reason, for example, Badu regard the waters out to Cook Reef and Turu Cay as being within the boundary of its marine estate; and Erub, the waters between it and Maizab Kaur and Rebes. The Islander evidence does not, and could not reasonably be expected (given the conditions of the Strait), to reveal use, let alone continuity of use and occupation, of all parts of the respective marine estates. There is, for example, evidence that certain places were dangerous and to be avoided: see Kris Billy on the underwater rock between Warraber and Guiya. I emphasise this conscious of the Full Court's observations in Bodney FC at [175] in relation to connection: … in those cases where the claim area includes within its boundaries portions of land or waters for which there is no evidence of use by the claimants, or which are inaccessible … the courts have shown a distinct propensity to infer such connection as was practicable with such land or waters from Aboriginal activities in the surrounding areas which were supportive of a connection to the general area within which those apparently unused or inaccessible areas were located: see Ward FC 99 FCR 316 at [262] and also [240]; Yarmirr TJ 82 FCR 533 at [91]-[98]; see also Daniel [2003] FCA 666 at [412] ff.

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(iv) Conclusions 635 There is one matter which I wish to dispose of at the outset as an unhelpful diversion. It concerns the State's persistent reliance, seemingly for analogical purposes, on the sea claims made in The Lardil Peoples v Queensland [2004] FCA 298 ("Lardil") and Yarmirr. I have referred already to the view expressed in Sampi FC (at [71]) that it is "not normally useful to compare the facts in one case to the facts in others". How much more this is so where, as here, the facts contrast sharply. Rafts (Lardil at [99]) and probably dugout canoes (Yarmirr TJ at 558G; see also Gumana TJ at [229]) belong to different spheres of technology and of human activity and intercourse to those of the Islanders' double outriggers and luggers. The contrast between the domains in which the respective claims have been made is similarly stark. 636 My own views on this matter have been foreshadowed in findings I have already made. They can be stated shortly, but need to be prefaced with the following two comments. First, I exclude from what I have to say what I earlier described as the extremities of the claim - the areas north, east and south of the Eastern Islands, south of Warraber, and west and south-west of the Western and Top Western islands. They raise their own difficulties and are considered separately below. Secondly, I do not refer separately to the ownership of any part of a marine estate by any group smaller than the claim group members of an island community as such, notwithstanding that the evidence clearly establishes at least for some islands that there is clan, tribe or family ownership of usually close in-shore areas (such as fishtraps, small islands and parts of fringing reefs). Such ownership is, for the purposes of these reasons, to be taken as subsumed under my findings in relation to the individual island communities. 637 I should also reiterate my views on the evidence on the Geography issue. Again I have found Professor Scott's evidence of assistance as also Professor Beckett's reflections. Though Haddon and the other early writers were understandably not concerned with describing the Islanders' marine estates, their accounts of their movements and practices, and in Haddon's case, of their geographic and sea knowledge, have provided more certain foundations for the drawing of inferences concerning Islander activities and understandings around the time of the annexations in the 1870's. Of the contemporary Islander evidence, I have paid particular regard, especially for historical purposes, to the evidence of the more elderly witnesses especially the late Walter Nona, Mebai Warusam, George Mye and Bully Saylor. I, equally, have given greater weight to the evidence of those who have spent very significant parts of their life engaged in marine industries, especially where there are inconsistencies between the Islanders on marine matters. 638 Certain matters are, in my view, beyond serious question notwithstanding the State's contrary contentions on some of them. First, the primary holding groups of marine estates are the group members of the individual island communities. Such estates are held severally by an island community or, for certain areas, are shared. The estates radiate out from the inhabited islands which provide the primary point from which the extent of the estates are respectively measured. 639 Secondly, there is no land-sea dichotomy. The evidence clearly establishes that the estates are spatially projected out from the shores; they do not stop at the edge of fringing reefs or when deep waters are met. I accept the Islanders' evidence on this and reject the State's "adjacent areas" contention to the contrary. Areas of deep waters, no less so than shallow ones, are claimed and used. 640 Thirdly, save for the extremities of the claim area, a "tenure blanket" covers Torres Strait. Under the Islanders' laws and customs, a community's estate extends outwards until it meets the estate of another community in what characteristically is a shared area. I have referred to various indicia that are used to identify the boundaries of marine estates and will not repeat them here. I accept the expert evidence, which was supported by some Islander evidence, that there are no "gaps" between marine estates. Everything is considered to be owned. There is no "commons" open to all, although certain areas may be widely shared, be this shared ownership or, more commonly, shared use by a number of communities. I would, for example, instance the sharing of their respective open waters in the Top Western area by Boigu, Dauan and Saibai and the extensive sharing of often distant areas by the Central Islands and by Masig and Erub and Mer. 641 Attachment 8 to these reasons provides my indicative account of the island communities' own and shared estates. The boundaries I have settled upon are, necessarily, fluid. To that extent my description may suggest a precision and rigidity that is not there. As the Islanders have emphasised, their estates are not divided by lines on waters. While it was necessary for me to satisfy myself both that the "tenure blanket" was intact and that there was continuity of connection - hence the need to locate the various estates - the Applicant was unwilling or unable to assist me in this process. I have resorted to the use of an attachment for this purpose, notwithstanding the importance of its contents. What I have written would convey little to a reader who does not have access to a detailed, multilingual map of the claim area. 642 Fourthly, I am satisfied that the Island communities have had, and do have, differential regard for the areas of their marine estates as they radiate outwards. To paraphrase Professor Scott, the nearer one is to the shore, the greater the intensity of feeling about defending one's estate, the further from it, the easier the acceptance of comingling and of having overlapping or shared rights with neighbouring communities. This varying intensity is reflected (a) in Professor Beckett's acceptance that the area to the horizon was, historically, a policed protected zone; (b) in the evidence I have referred to relating to the domestic use made of inner areas and the reservation of them for the community's own purposes; (c) in the more ready allowance of permissive use of more distant areas; and (d) in the sharing of ownership in the areas where the waters of two communities meet. While this conclusion is based upon inference, my characterisation of the evidence differs markedly from that of the State. I do not accept that such rights as an Island community has in its distant areas are, as the State would have it, "of a lower order". I reject the State's contention that there are gaps - open areas - between the estates of the various communities and refer back to Mr Murphy's rebuttal of this proposition during cross-examination. 643 As I have foreshadowed, I reject the Commonwealth's "beyond the horizon" rule. It has no resonance at all in the Islanders' evidence which I prefer. It ignores the evidence of sharing ownership and/or use in distant areas. It converts an understandable policing mechanism into a limiting rule of ownership. And when one has regard to the topography of the Strait and the location of what the evidence establishes to be used uninhabited islands and reefs and sandbanks, the rule is likely to be quite arbitrary. It could for example defeat claims by Masig or Erub to marine areas to their south about which there is clear evidence of historical and present use (for example, down the Dugong Line or around Cumberland Passage), naming, etc. And it is inconsistent with evidence of one community's awareness of the extent of the marine estates belonging to another. 644 There is a group of submissions made by the State which require response. They relate (i) to "occupying" the marine estates; (ii) "connection" under s 223(1)(b) of the NT Act; and (iii) continuity. 645 "Occupation". The Applicant's "emplacement based rights" require, first and foremost, prior ancestral "occupation" of the place or area claimed. The State draws upon the obvious difficulties there are in applying conventional meanings of "occupation" to sea areas and has sought to give "occupation" a prescriptive meaning by reference to judicial expositions of what it means "to occupy" land as, for example, under s 47A and s 47B of the NT Act. The meaning to be given this term has to be related to the marine context in which it has to do its work. The Islander evidence in my view betrayed an appreciation of this ("Identifying 'owned' landmarks"), even if there were inconsistencies in the evidence of some about when human activity in a place could lead to the conclusion that it belonged to the community of the actors. I will return below to an aspect of this. The semantic quibble is not one which I consider warrants further attention. 646 "Connection". I earlier outlined the legal principles applicable to this issue. I would have to say I find the point taken to be somewhat puzzling. The State's contention is that the evidence is that most use of areas beyond "adjacent areas" has been for, or in connection, with (a) travel between islands; (b) pearling or trochus gathering - in the past; (c) fishing, cray-fishing etc; (d) working; (e) visiting family or friends including for events such as weddings and tombstone openings. 647 Most of the evidence regarding such distant areas, it is said, was to the effect that people feel connected because they and/or their father etc went there. But that was usually for the purpose of working on pearling or trochus luggers. That is not connection "by those laws and customs", as required by s 223(1)(b) of the NT Act. 648 There is no room for doubt that the Islanders have, since sovereignty, continued to acknowledge and observe a body of traditional laws and customs. The short question is whether those laws and customs and the acknowledgement and observance thereof, connect them to their marine estates and have done so since the date of annexation. I am satisfied that they do. The Islander evidence of their knowledge of their own marine estate and of where those merge into the adjacent estates of others (usually in a shared area) is probably explained, to use the State's own words, by - … the pre-eminent importance of this "ownership" of country by the people concerned. … Each of the witnesses described the area appropriate to his or her community as deriving from the community's historical association with the area.

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650 Even more compelling, knowledge of the boundaries of one's estate and knowledge of the areas of shared ownership or use with others marks out where one can go as of right and where one needs permission. The laws and customs on permission and, relatedly, on ailan pasin in its marine aspects, connect Islanders directly to their own estates and, in the case of permission, constitutes an acknowledgement of what is required if another's community's estate is to be used in accordance with laws and customs. The observance of these laws and customs involves "the continuing internal and external assertion by [the claimant community] of its traditional relationship to the country defined by its laws and customs": Sampi TJ, [1079]. 651 Professor Beckett referred to "the essentially maritime character of the Islanders' occupation of the region". I accept this characterisation. It is reflected in much of what they have done and do. It is reflected in the rhythm of their lives. And it is both presupposed by, and suffuses, much in their laws and customs. To give minor examples, I have found feasting to be a custom of the Islanders. Not only are feasts marked by the sharing of seafood with an emphasis on turtle and dugong, they also are often related directly to marine events such as a child's first turtle or first dugong. As Professor Scott put it, the sharing of seafood "is inscribed in ceremonial life generally, and in traditional rites of passage". I equally have found there to be laws and customs relating to song and dance. The Islanders' evidence demonstrated that both song and dance have an obvious marine orientation and often embody maritime knowledge or relate to particular marine areas. I have not found that song and dance can be used to solve the Geography issue. However, I do consider that they are activities that in a general way reflect the reality of Islander connection to their waters. 652 I noted at the very beginning of these reasons that the acquisition of sovereignty over the islands of the Strait did not lead to the Islanders being dispossessed of the land and sea areas, or their being deprived of their traditional means of livelihood. They have, as I have sought to explain, used the waters of the Strait and its resources for a multiplicity of purposes over the last one and a half centuries. That usage has varied with changes in available marine technologies, government policies, a World War and its effects and the rise and fall of marine industries. While the sea areas have throughout been used as sources of subsistence and livelihood and as places of passage, they have by no means been used uniformly or in their entirety. The State's principal objection on connection is an extrapolation from this last observation. It is contended that the evidence of use related to the adjacent areas, not to the distant areas. It is said that most of the evidence regarding distant areas was to the effect that people feel connected because they and/or their father, uncle, grandfather, etc went there usually for the purpose of working on pearling and trochus luggers. And the State points to the fact that Mr Murphy agreed that a lot of his informants "including some of the witnesses" believed they had rights in relation to some of their distant areas because their fathers, etc had "used those areas". I would interpolate immediately, though, that those witnesses who have had long experience in the marine industries gave much the most informative evidence on "distant areas" and on their own use thereof. 653 There is a number of responses which properly can be made to this. First, the responses of the Islander witnesses cannot reasonably be expected to be framed with the precision required by Yorta Yorta in mind. Secondly, there is a very significant body of evidence of use of areas quite distant from inhabited islands but within what are claimed to be owned or shared areas. I would instance Kapua Gutchen's and Bully Saylor's evidence on the use made by the Central and Eastern Islanders of the area around Cumberland Passage, the Dugong line and the Murray line. Gutchen commented of the areas he described: Today, the dinghies from the Eastern Islands and the dinghies from the Central Islands still normally keep to these areas.

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654 Thirdly, I have indicated that I have given weight to the evidence of the more elderly witnesses and of those who have had long experience in the marine industries. Their's is the evidence that refers to the use and naming of places and areas by "ancestors". Given the ages of such men as the late Walter Nona, George Mye and Bully Saylor and their obvious reliance upon transmitted knowledge, I infer that they were referring to a distant past. I draw this inference with some assurance, having regard, first, to Haddon's comments on the naming of places, the Islanders' extensive geographic knowledge and the distant places to which they travelled and, secondly, to the historic record of Islander mobility (and particularly that of the Central Islanders) for subsistence purposes and to the archaeological evidence of use of uninhabited islands. 655 Fourthly, as I have indicated, the Islanders' laws and customs, and, for that matter, their exercise of the rights and interests possessed under them, are markedly utilitarian in character. Areas are used, not because this is dictated by a law or custom, but for reasons of utility, convenience, seasonal abundance, accessibility, weather and tidal conditions, prudential considerations, etc. To this I add the means available to access an area and in so doing I refer back to Professor Beckett's reflections on the significance of changes in marine technology. When one looks both at the State's dot maps of areas in Torres Strait said to "belong to" a community or to be "shared" by communities, and to the Applicant's line map of indicative community and shared areas, they reveal a history of utilitarian use of the Strait. In so doing they expose large areas of sparse use, save for purposes of passage, if even that: cf Bodney FC, at [175]. Connection, in my view, has to be seen in this light. Section 223(1)(b), after all, "is not directed to how [the Islanders] use or occupy land or waters": Ward HC [64]. The Islanders' marine estates have been "defined by" their laws and customs: Sampi TJ [1079]. How, by those laws and customs, they have a connection with those estates will, as Ward HC requires (at [64]), depend upon the content of traditional law and custom and "upon what is meant by 'connection' by those laws and customs". What is clear is that the laws and customs are premised upon the "essentially maritime character" of the Islander's occupation of their respective marine areas and in some measure those laws and customs address the Islanders' use and exploitation of their own and others' areas (thus connecting them to their areas). However, the laws and customs do not prescribe the actual places of use and, I would infer, for the utilitarian reasons I have given. The Islander's sea knowledge, their needs, the marine technology available to them, etc will dictate the patterns of use of their estates from time to time. 656 I conclude in consequence that the Islander's have acknowledged and observed their laws and customs since annexation and moreover have substantially used and exploited their respective areas since annexation. The requirements of s 223(1)(b) have been satisfied.

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(a) The north-eastern areas 661 Maizab Kaur (Bramble Cay) and Rebes. These lie to the north of Erub beyond the Seabed Jurisdiction Line. They are about five kilometres apart; are part of Australian territory; and have their own territorial sea having a three mile limit under the PNG Treaty: see Article 3. They have been the subject of a native title consent land determination in favour of the Erubam Le People: Mye v Queensland [2004] FCA 1573. While there is clear evidence of people from Erub using those areas and their waters - and it is both historic (Haddon, 1935, 150) and contemporary (Kapua Gutchen) - the evidence of Islander witnesses was that Maizab Kaur was used primarily for collecting the eggs of turtles and various bird species (Mareko Kebisu, Tom Stephen, Patrick Whap, Kapua Gutchen and Bully Saylor). These references were made in relation to the land mass rather than the waters. There is evidence of use of the reef and waters around Maizab Kaur. The reef was a good source of trochus shell, black lip pearl shell crayfish and bęche-de-mer (Kapua Gutchen and Bully Saylor). Witnesses gave evidence that turtles were taken from around Maizab Kaur (Bully Saylor and Mareko Kebisu). Tom Stephen indicated that the waters around the island were fished for mackerel and George Mye indicated that they were used to dive for trochus shell. The evidence of use of Rebes was scant. However, Kapua Gutchen indicated that the waters around Rebes were trawled for dabor (mackerel) and malowap (tuna). George Mye also explained that the area around Rebes was used to dive for trochus shell. 662 Garboi and Misnare. These are two islands at the top of the Barrier Reef to the north of Mer. They are beyond the Seabed Jurisdiction Line and are in Australian territory under the PNG Treaty having the English language names of Anchor Cay and East Cay. The documentary evidence suggests that they were annexed in 1879. The Islander evidence of to whom each belongs is mixed. Kapua Gutchen's view is that they are shared by Erub and Mer because "the Meuram at Murray and Meuram at Erub have a special role in relation to those two places". Wolfgang Laade's account (1969, at 37) is to like effect, although he attributes the Meuram interest to Maizab Kaur as well. George Mye's view is that they belong to Erub because it is "closer" to them but "we all use it". And Bully Saylor, that Erub has Garboi. Mer, seemingly, has it and Misnare as well, though it is used by Ugar. Each gave evidence of having worked around them. Such evidence given of resource extraction from their waters related only to harvesting trochus. Given the location of these two islands relative to both Erub and Mer and that they are located within PNG waters (ie in the direction from which the Eastern Islands were settled), it is reasonable to infer that they were used by both Erub and Mer prior to annexation. While there is some evidence of early Eastern Island involvement in the pearling industry in the decade prior to annexation (Mullins 2008, [170]-[178]), and gathering the trochus shells was part of this industry (Beckett, 1987, 33-35) and while archaeological evidence has revealed the existence of trochus shells in middens at Mer and Dauar, it is not possible to conclude that either island was being used for pearl shelling prior to 1879. 663 Conclusions. I am satisfied that, prior to annexation, Maizab Kauar and Rebes and their surrounding waters were used by and belonged to Erub and that Garboi and Misnare were probably shared by Erub and Mer. 664 While the sea area claimed for both sets of island are their respective territorial waters, no basis for such a claim has been advanced. I accept that the near waters surrounding the area between each of the two sets of islands and the waters to the south of them were part of the marine estates of Erub (Maizab Kaur and Rebes) and of Erub and Mer (Garboi and Misnare). I am not satisfied that the waters to the north of the near waters of any of the islands is part of the marine estates of Erub or Mer. There is no evidence of use there, nor of connection to those waters. These findings will be reflected in my conclusions on the Geography issue.

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(b) The Eastern areas 665 The issue here relates to the location of the eastern boundary of Mer's marine estate. I should emphasise I do not differentiate between Mer and Dauar for present purposes: cf Alo Tapim. A considerable part of the claim area on both sides of the Barrier Reef needs to be considered. The Applicant has not been able to provide much assistance in resolving the issues I have raised about these areas. In the absence of an adjacent marine estate of another community to the east of Mer's estate - hence the lack of foundation for an "equidistance rule" - I am not prepared to apply the so-called "indefinite distance" proposition propounded by Mr Murphy. The Islander evidence in relation to Western boundaries beyond Cook Reef and Warul Kawa does not seem to support it: cf Walter Nona's observation above. 666 Though there is some arbitrariness in the eastern boundary I propose to accept for Mer, I consider it nonetheless appropriate to use the northern part of the eastern boundary of the claim area from the point where it joins the northern boundary, down to where it touches the Barrier Reef below Zor, as providing part of the eastern boundary of Mer's marine estate: see the evidence of the late Atai Wailu on travelling in this north-eastern area. Below that point, the Barrier Reef itself down to Sim Kep and Eur provides a natural boundary which, I consider, is consistent with the evidence of use of Atai Wailu and Alo Tapim. 667 While there is considerable evidence of the Islanders from Mer travelling long distances down the reef (eg 100 miles to Raine Island off the Queensland coast: Haddon, 1935, at 150) there is no evidence of use of the Reef as such below Eur in the Part A of the sea claim area. There is, though a body of evidence of very experienced fishermen - for example, Bully Saylor and Kapua Gutchen - concerning a line of sandy reefs and cays running to the south-west into the Part B claim area and known variously as the Murray, Barrier, or Inside Line. These reefs include Toleh Toleh Nor, Au San, Three Reefs, Seven Reefs and Sunday Reef. I consider that line provides the south-eastern boundary of Mer and so find. I should indicate in passing that the area around Seven Reefs on that line is in Australia's Exclusive Economic Zone. The southern boundary for present purposes is provided by that portion of the northern extremity of the Part B claim lying below and between Sunday Reef and the Central Island area to the west.

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(c) South of Naghir/Warraber 668 The problem which arises here is the product of a number of causes. The first, is my conclusion that the waters around Naghir, Gitalai and Sauraz are shared by Mua and Warraber. The second is that the boundary of the sea claim, anomalously (given the Islander evidence on "no lines" in the sea), runs in a straight line from north of the Prince of Wales Group (below Mua) for some distance east before turning south-east (again in a straight line) as part of the Part B claim area. Thirdly, for a significant part of that portion of the straight line boundary, there is no inhabited Torres Strait Island in relation to which the "rough equidistance principle" could be applied. Fourthly, for that reason no adjacency principle could be applied to the two claims. While it may well be the case that the Kaurareg claim asserts native title rights in an easterly direction in an area or areas somewhere below that boundary line - and I infer such is the case - there is no evidence to suggest that the Part A claim area abuts the Kaurareg claim at the point of that line. The inference to be drawn from the sea claim map itself is that it does not. I have not been asked to treat the boundaries of the Kaurareg claim area as a matter of common knowledge under s 144(1)(b) of the Evidence Act. In the circumstances I refrain from making my own inquiry about the Kaurareg claim boundary because it is not at all evident what relevance that information could have in this matter. Fifthly, the area south and south-east of Naghir to that portion of the Straight line boundary is not one in which the Applicant, in its indicative community and shared areas diagram, records any Island evidence of emplacement based rights. Indeed that diagram conveys the impression of a large vacant area. 669 Whilst there is a considerable body of pre-annexation evidence (a) of interaction between Muralag (Prince of Wales), Mua and Naghir; (b) of Naghir's situation on the customary exchange routes; (c) of Kulkulgal visits to Muralag (eg Mullins, 2008, [46]) and of trading visits to islands off the east coast of North Queensland (Haddon, 1935, at 88); and (d) of Islander congregations at Mount Adolphus and visits to Cape York, the vacant area I have noted appears for the most part to have been by-passed. This said, one of Haddon's customary exchange "maps" (1935) and Professor Beckett's (1972) have a direct route from Cape York towards Sassie and Warraber respectively. There is contemporary evidence of Central and Eastern Islanders sailing to Thursday Island. Little has been revealed of their routes. 670 The evidence in relation to Warraber's estate encompasses to Warraber's south and south-west Ugain, Yurin Kula (rocks), Poll Island and Maza Guiya (reef). Further to the east Warraber's estate goes into the Part B area. While this evidence is consistent with Warraber having a significant marine area to its south-east and probably south, and while its sharing of Naghir's waters gives it a marine estate to its west, there is little to support its having a south-western estate to the boundary of the sea claim. 671 In this state of the evidence, while I am prepared to infer that both Warraber's and Mua's shared ownership of Naghir's waters extend some distance to the south of that Island, I do not consider that the Islanders' laws and custom provide for, or would justify Mua and Warraber maintaining a shared marine area from Naghir to the southern boundary of the sea claim area. In this I attribute no little significance to the Applicant's indicative diagram. Equally, I can discern nothing in Mua and Warraber peoples' practices and use of the area to the south and south-east of Naghir as would suggest that their connection with it has been a continuing reality: Bodney FC [168], [171]. Neither, on its north-south axis, can it be classified as an unused area within a general area which is used: cf Bodney FC [175]. 672 Accordingly, I consider that below Naghir, Warraber's marine estate goes in a south-easterly direction and intersects the southern boundary of the Part A sea claim in an area to the north-west of Kagar. Likewise, I consider that Mua's estate below Naghir probably curves in a south-westerly direction meeting the Part B boundary line in the region east of Mokanab (which the Mua and two of the Badu witnesses, the late Walter Nona and Alick Tipoti, claim belongs to Mua).

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(d) The South-western areas 673 The problematic area here relates to Cook Reef. It lies beyond Australian Territorial waters but is in the Exclusive Economic Zone by virtue of the Proclamation made in 1994 under the Seas and Submerged Lands Act 1973 (Cth): see generally, the "Sovereignty issue" below. I have concluded on the Sovereignty issue that, for Yorta Yorta purposes, the date of "sovereignty" is to be taken to be 26 July 1994. Given that Cook Reef has been used long before that date - the late Walter Nona said he was told by old people of Badu that they went out there in very good weather "in their canoes" to get turtle, dugong and fish - the only issues are whether it is part of a community's marine estate and, if so, whose? 674 Cook Reef was used extensively during the lugger period to dive for trochus and pearl shell: Walter Nona and Mebai Warusam. It was also used by people from Badu, Mabuiag and Mua "[b]ecause those reefs were easy to get turtle". The evidence further suggests it was used not only by Western Islanders but by luggers from the Central and Eastern Islanders (Tom Jack Baira) and by Top Western Islanders (Mebai Warusam; Gertie Bigi: "That's our place … it's our fathers' working place"). 675 Pearl shelling clearly was important in the Western Islands from the 1870s onwards. By 1879 there were pearl shelling stations at Mua and Mabuiag: Mullins, 2008, [177]. By 1881 the "Old Ground" to the west of Mabuiag was discovered. It was the Torres Strait's most productive pearl shelling area: Mullins, 2008, [176]. Mebai Warusam, who was born in 1924, worked at Cook Reef and he was told by his father that "he used to work in these areas too". The historical evidence in this proceeding does not confirm pearl shelling so far south-west of Badu in the late nineteenth century. 676 The late Walter Nona's evidence, as I have noted, is that Badu people "didn't go out much beyond Cook Reef. Even with luggers we didn't go much further than that". In cross-examination he indicated that Cook Reef and Turu Cay formed the western boundary of Badu territory. 677 I accept the evidence that Cook Reef belonged to Badu and the western boundary was as Walter Nona described it. I do so, not only because of his extensive marine experience with the Nona fleet of boats and otherwise, but also because of the historical depth of knowledge he derived from his mentor Sagigi who was "perhaps middle-aged" by 1902. I consider it probable that Badu owned and used Cook Reef before it became a significant pearl shelling site; that that ownership pre-dated the assertion of British sovereignty over Badu in 1872; that with the advent of pearl shell luggers, Cook Reef was permissively used by Mabuiag and Mua; and with the advent of significant pearl shelling in Western Torres Strait waters, it was permissively used by the Top Western Island and, possibly, the Central and Eastern Islands. It is not necessary for me to reach a concluded view on that matter for NT Act purposes. Finally, it would be contrary to what I understand to be the Islanders' conception of ownership to treat Cook Reef as an ownerless area and open to all.

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(e) The Western areas 678 My particular concerns here are with the seas around Warul Kawa, Awial Kawa and Turu Cay. These islands are part of a consent land determination: Nona and Ors v Queensland [2005] FCA 1118. That determination was in favour of the peoples of Saibai, Dauan, Boigu, Mabuiag and Badu. The first two of these islands are roughly 50 kilometres south-west of Boigu and 70 kilometres north-west of Mabuiag. Turu Cay is about 80 kilometres west and slightly to the north of Mabuiag. These islands were annexed in 1879. 679 The great preponderance of Islander evidence would share the surrounding waters of all three at least with the peoples of the five named islands to the extent that they gave evidence about one or more them, though most would have added Mua as well: Walter Nona, Mebai Warusam (though mentioning Warul Kawa only), Keith Pabai (Warul Kawa only) and Sophie Luffman. I would note as well that, in relation to Warul Kawa, Alick Tipoti and Tom Jack Baria, both of Badu, extend the sharing to Mua. Anomalously neither of the Mua witnesses gave evidence that they shared Warul Kawa. The issue raised by the Commonwealth, the consent order notwithstanding, is whether such confusion as there is between the witnesses has arisen because use of the area has occurred since sovereignty. 680 The uses made of the three islands are revealing. The Islanders attest to the waters around Warul Kawa being renowned as hunting grounds for dugong and turtle. Walter Nona explained why a number of communities used the area: WALTER NONA: Because easy to get dugong. MR BLOWES: Yes. WALTER NONA: Waral Kawa is - have lot of dugong. MR BLOWES: And - - - WALTER NONA: And turtle, and fish. MR BLOWES: And do you have an understanding about what reason that Mabuiag and Badu and - people can use that area? WALTER NONA: Which one is that? MR BLOWES: Around Waral Kawa, water where you - for dugong and turtle and all that. WALTER NONA: We always on, you know, those reefs, Waral Kawa reef. That's where we always get dugong.

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Additionally, the waters and reefs around Warul Kawa have been used to fish for whiting and to catch crayfish (Keith Pabai) and for trochus (Gertie Bigi). As for Awial Kawa, Walter Nona's evidence was that he hunted dugong and turtle there. Turu Cay was used similarly to Warul Kawa. 681 In considering Cook Reef, I referred to the Old Ground pearl shell area of Mabuiag. In his evidence Walter Nona said: "Old Ground, that's in front of Kiss Island [ie Awial Kawa]. In the middle. The big area there." Before and after the discovery of Old Ground in 1881, Mabuiag was a "significant base for the pearl shelling industry": Mullins, 2008, [176]. 682 Obviously, the evidence is in a less than perfect state to make unequivocal findings. Nonetheless, and consistent with the consent determination, I am satisfied that Warul Kawa, Awial Kawa and Turu Cay are shared by the five islands in whose favour the consent determination was made. It is probable, given the ready availability of dugongs and turtles, that they both would have experienced significant use prior to 1879. One can almost say this as a matter of certainty about the Top Western Islands which had an easy and predictable route along the PNG coastline to Warul Kawa. Though Walter Nona includes Mua in those who share Warul Kawa, Awial Kawa and Turu Cay waters, I am with some diffidence unprepared to accept the full significance of that primarily because neither of the witnesses from Mua claimed so to share. In this state of affairs I consider that permissive use of the two islands is probably the best explanation of Mua's people being there. Equally I consider it probable that after the discovery of Old Ground those islands would have experienced significantly greater use because of the influx of luggers into the area between them and Mabuiag. To this extent there may be some doubt about the timing of use of the islands at least by Mua which, as I noted in dealing with Cook Reef, had a direct interest in pearl shelling. 683 Accordingly I find that for the purposes of their respective marine estates, hence the area in which they have native title rights and interests, Saibai, Dauan, Boigu, Badu and Mabuiag share the waters of Warul Kawa, Awial Kawa and Turu Cay. Given that one of the principal uses of that area was and is the hunting of dugong and turtles, I am prepared to determine that the extent of that shared area includes all of Australia's territorial waters around the three islands. Those shared Islands provide the western boundaries of the marine estates of Boigu, Dauan, Saibai and Mabuiag. They provide the north-western boundaries of Badu's marine estate, the south-western boundary being from Turu Cay to Cook Reef. For the sake of completeness, and again acknowledging a certain arbitrariness, I would determine that the south-western boundary of Badu's marine estate runs from the south of the waters surrounding Cook Reef to the islands owned or shared by Badu to the south-west of Badu within the Part A sea claim area.

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(ii) The Legislative Setting 690 Australia's sovereignty over its territorial seas, and its sovereign rights and rights of control beyond those seas are recognised and regulated by the SSL Act and by the 1982 United Nations Convention on the Law of the Sea, articles of which are implemented or otherwise given effect in the SSL Act. Relevantly, for present purposes, the Act declares and enacts Australia's sovereignty in respect of the territorial sea. That sovereignty is vested in, and is exercisable by, the Crown in right of the Commonwealth: s 6. The "territorial sea" has the same meaning as in Arts 3 and 4 of the Convention. Its outer limit of 12 nautical miles is to be measured in accordance with those articles. Sovereignty over it is exercised subject to the Convention and to other rules of international law: Art 2. Thus is guaranteed the right of innocent passage of ships of all States through the territorial sea: Arts 17-26. 691 Beyond the limits of the territorial sea, the Act recognises that new zones of functional and resource jurisdiction can be declared or exist consistently with the provisions of the Convention. These, as they radiate outwards, are the Contiguous Zone, the EEZ and the Continental Shelf: on which see generally Churchill and Lowe, The Law of the Sea, Chs 4, 7, 8 and 9 (3rd ed, 1999); Evans, "The Law of the Sea" in Evans (ed) International Law,Ch 20 (Oxford 2003); Brownlie, Principles of Public International Law, Chs 9 and 10 (7th ed, Oxford, 2008); Triggs, International Law, Ch 6 (Lexis Nexis Butterworths, 2006); see also Attard, The Exclusive Economic Zone in International Law (1987); Gavouneli, Functional Jurisdiction in the Law of the Sea (2007). Of present interest is the EEZ, a zone which coastal States are not obliged to claim but which Australia, along with very many others, has. 692 This zone is defined in s 3 of the SSL Act to have the same meanings as in Arts 55 and 57 of the Convention. Those articles provide: Article 55 Specific legal regime of the exclusive economic zone The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.

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Articles 61 and 62 make provision for the conservation and utilisation of living resources. Article 62 envisages the coastal State will make laws and regulations establishing conservation measures. It goes on to enumerate non-exclusively eleven matters to which such laws and regulations may relate. These include licensing; the setting of catch quotas and determining the species that may be caught; the conduct of fisheries research programmes; the terms and conditions relating to joint ventures; and enforcement. 697 I would note in passing that Articles 69 and 70 make provision for "land-locked States" and "geographically disadvantaged States" respectively, to participate "on an equitable basis" in the exploitation of an appropriate part of the surplus of the living resources of the EEZ of a coastal State in its region or sub-region. 698 Article 73(1) provides for the enforcement of laws and regulations of the coastal State. It empowers a coastal State in the exercise of its sovereign rights in the EEZ to take such measures as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 699 Because a coastal State's exercise of its rights in relation to the seabed and subsoil in its EEZ are to be exercised in accordance with the continental shelf regime (see Art 56(3)), it is necessary to refer to certain provisions relating to that regime. Part VI of the Convention defines the extent of the seabed and subsoil of submarine areas that constitute the continental shelf of a coastal State. 700 Importantly for present purposes, Art 77 provides in part that: 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. … 4. The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. (Emphasis added.)

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How, if at all, Australia explores or exploits the continental shelf in the claim area has not been the subject of evidence. 701 Only two comments need be made about the "High Seas" regime of Part VII of the Convention. First, Art 87 which describes the "Freedom of the High Seas" provides: 1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. As I have already indicated, by virtue of Art 58(1), freedoms (a) to (c), but notably not the freedom of fishing, are enjoyed by other States in the EEZ of a coastal State. 702 For its part the NT Act is predicated upon the possibility that native title rights and interests may subsist in "waters": see s 223 and s 225. Section 6, in turn, provides, for present purposes, that: This 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 1973. (Emphasis added.) The "coastal sea" is, for the Act's purposes, defined to include "the territorial sea of Australia … and includes the airspace over, and the sea-bed and subsoil beneath, any such sea": NT Act, s 253 "coastal sea"; Acts Interpretation Act 1901 (Cth) s 15B(5); and see generally Yarmirr HC, [5]-[8]. "Waters" is similarly defined to include "the sea" and "the bed or subsoil under, or airspace over, any waters": NT Act s 253.

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707 The Commonwealth has accepted (subject to any question of extinguishment) that, as the limits of Australia's territorial seas in Torres Strait have expanded since 1872, the common law has recognised the corresponding expansion in the territorial reach of subsisting native title rights and interests in those waters. This acceptance was inevitable in light of the decision in Yarmirr HC. In that case the whole of the area the subject of a sea claim was "embraced" by the seaward limits of the twelve nautical mile territorial sea and was "therefore, within the area to which the [NT] Act's operation is extended by s 6": Yarmirr HC at [18], [66] and [75]. 708 The question that remains is whether the limits of the territorial seas nonetheless impose a limitation upon the extent of the common law's recognition of native title rights and interests. The Applicant's case, put baldly, is that native title can be recognised in areas where Australia's sovereign rights extend and that, beyond the territorial seas, such rights exist in the claim area. This Court, it is said, has jurisdiction under the NT Act to make a determination of native title in relation to the claim area. These two assertions have not been enlarged upon in the Applicant's otherwise voluminous submissions. 709 The Commonwealth's contention is founded upon the traditional dichotomy between the territorial seas of a coastal State (over which it has sovereignty) and the high seas (which are free for use by all). Particular reliance in this is placed on the non-exhaustive "freedoms" of the high seas enumerated in Art 2 of the Convention on the High Seas done at Geneva on 29 April 1958. 710 As to territorial seas, it is said it is implicit in Yarmirr HC that the common law will not recognise native title if it is in conflict with international law. Provided the native title rights claimed in territorial seas are not greater than Australia's sovereign rights in international law, there could be no inconsistency between international law on the one hand, and the common law's recognition of the native title rights on the other. So when the Crown acquired sovereign rights in the area between 3nm and 12nm it did so subject to pre-existing native title rights - but only to the extent that those rights did not exceed Australia's rights (or breach Australia's obligations) under international law. In the case of the territorial sea, the underlying "right" is Australia's sovereignty; the rights of other nations to innocent passage and Australia's obligations in that regard are, in effect, conditions which qualify the assertion by Australia of sovereignty over that area. In contrast, it is said, the underlying legal regime in respect of the waters and subsoil beyond the territorial sea is the freedom of the high seas. The primary rights and freedoms exercisable in the area are held by the community of nations. Australia's rights in the area constitute only limited exceptions to, or qualifications upon, those rights and freedoms, and are exercisable within limits and conditions to which Australia has agreed and under customary international law. Being pre-eminently within the international domain, the area beyond 12nm is subject to a complex web of international rights, duties and freedoms which must, in turn, be exercised with due regard to the rights and duties of other States. As a result, this area of the high seas could not be the subject of State or private appropriation of rights. 711 I should say immediately of the Commonwealth's submissions in light of questions I raised during the hearing is that, apparently designedly, they have not been made against the backdrop of the EEZ regime instituted by the SSL Act and the Convention. Nor have they explicitly acknowledged that the freedoms of the high seas have been eroded by the expansion of the territorial seas and "further eroded by the creation of zones of functional jurisdiction" such as the EEZ: Evans, at 637. 712 I have already found that, in two areas, Islander marine estates extend into the EEZ and that the Islanders' traditional laws and customs were, and are, acknowledged and observed there. The question which arises is whether the common law will give some effect (some "recognition") to those traditional laws and customs. I have earlier set out the principles applicable to "non-recognition" and to its "inconsistency" test. I will not repeat what I have said but will make the following additional comment. 713 In the joint judgment in Yarmirr HC, it was explained (at [46]-[48]) how the concept of "radical title" could be deployed as a tool to explain how native title to landcould survive the Crown's acquisition of sovereignty over the land. However, it was also explained (at [50]) that: 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.

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714 What emerges from the joint judgment is that the sovereignty acquired over the territorial seas was the right and power to govern that part of the globe: cf New South Wales v Commonwealth (1975) 135 CLR 337 ("Sea and Submerged Lands Act Case") at 479. This acquisition occurred by operation of international law and was subject to such qualifications as were necessitated by evolving international law (in particular in relation to the right of innocent passage): Yarmirr HC at [61]. 715 Turning to the EEZ, it is clear from the provisions of the NT Act which define "native title" (s 223(1)) and which extend the provisions of the Act "to any waters over which Australia asserts sovereign rights under the [SSL] Act" (s 6), that the Parliament contemplated that native title in the EEZ might be recognised by the common law. The Explanatory Memorandum to cl 6 of the NT Bill 1993 clearly envisaged the possibility that native title could exist in areas in which Australia asserted or had sovereign rights obtained by virtue of the SSL Act, notwithstanding that in relation to the EEZ no proclamation had then been made: but note by proclamation of 26 September 1979 under the Fisheries Act 1952 (Cth) Australia established an Australian Fishing Zone with an outer limit of 200 nm. 716 The rights in Australia's EEZ that are vested in the Commonwealth by s 10A of the SSL Act are described in the Convention as being "sovereign rights". The terminology requires note. 717 The significance of the word "sovereign" in this context was explained by Anderson in one of his selected essays in Modern Law of the Sea, 212 (Martinus Nijhoff, 2008). He commented: When the International Law Commission (ILC) advanced the concept of "sovereign rights" in 1956 in the context of the continental shelf, the Commentary explained that the term covered "all rights necessary for and connected with the exploration and exploitation of the natural resources …" and included "jurisdiction in connexion with the prevention and punishment of violations of the law." These important clarifications have been fully acted upon by coastal states in regulating oil and gas activities on the continental shelf. The same term "sovereign rights" is applied in article 56 to the living, as well as to the non-living, resources of the EEZ. It is clearly arguable, therefore, that the ILC's clarifications of the term are also relevant in regard to the regulation of activities in relation to living resources. On this view, the coastal state's sovereign rights cover all rights necessary for and connected with the exploration, exploitation, conservation and management of the living resources. The rights include, similarly, jurisdiction in connection with the prevention and punishment of violations of the law. In the present context, the jurisdictional rights are expressly backed up by the procedures and rights in the matter of enforcement contained in article 62(4)(k) and especially article 73.

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718 It is important to recognise not only that the sovereign rights so given are circumscribed by reference to the stated purposes informing their grant, but also that the regime in which they have their place is a hybrid one. In both of these respects the "sovereign rights" (and their attendant jurisdiction) are qualified by international law. 719 Dealing with the second of these qualifications first, it is well-accepted that the EEZ regime is a sui generis one. It is not an extension of the territorial sea (as witness the "delicate balancing" of the rights, functional interests and obligations of both the coastal States and other States in the EEZ: see generally Attard, 61-67; Churchill and Lowe, Ch 9 (3rd ed); Gavouneli, Ch 3; Brownlie, at 200-203). Full sovereignty was not given to the coastal States. Neither is it a modified version of the high seas regime (as witness Arts 56 and 86, the latter of which expressly excludes that regime); see also Evans, at 645; Attard, at 62-63. The traditional freedoms of the high seas were divided between coastal States and other States. In consequence as Art 55 indicates, the EEZ is subject to "the specific legal regime" established in Part V of the Convention. The complexity of this regime has been captured by Attard in this description (at 66): The drafters of the UNCLOS III EEZ regime have created a delicate, intricate, and sometimes ambiguous mechanism which attempts to overcome theoretical obstacles by removing the geographic notions found in the traditional law of the sea. The applicable legal regime is no longer dependent on the geographic area in question; rather, it is the activity in question that will determine the operative regime. Indeed, the jurisdictional significance of Article 57, which does not allow the coastal State to extend its zone beyond 200 n.m., depends to a large extent on the particular maritime activity involved. If it is the navigation of a ship, under Article 58(1), the flag State within an EEZ would continue to enjoy the high-seas freedom of navigation. If it is a fishing vessel or the Glomar Explorer, the EEZ regime would apply, whilst the flag State would also continue to enjoy jurisdiction. Thus, it is possible for different States to have jurisdiction over different activities in the same area; indeed, frequently there will be concurrent jurisdiction, usually for different purposes. Legal regimes transcend geographic areas and regulate accordingly the particular maritime activity. The same principle has, in fact, been applied in the relation of the EEZ to the shelf and the contiguous zone. Instead of placing the law on known foundations, the Conference has chosen to sail through uncharted waters creating a unique, but sometimes fragile, system of balances and counterbalances in an attempt to accommodate the various interests at play. It is an experiment in functionalism. Because of the ambiguous and indirect references to the nature of the EEZ, its actual nature will depend more on the practice of States over the years than on the theoretical formulae devised at UNCLOS III. Clearly, with the increase in zone uses, it will become imperative to be more precise as to the relationships and priorities of respective uses. (Emphasis added.)

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721 I have emphasised the reference in the quotation from Attard above the dependency of coastal State jurisdiction "on the particular marine activity involved". As has been seen, the native title rights and interests which I have found are for presently relevant purposes, rights to access and take marine resources. That activity falls squarely within one of the forms of marine activity which are the subject of Australia's sovereign rights under Art 56(1)(a) of the Convention, ie "exploiting … the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil". 722 The second limitation on the sovereign rights and jurisdiction given in Art 56 is betrayed in their purposive character. They are given for the purpose (a) of exploring etc the marine resources of the superjacent waters, the seabed and its subsoil and (b) of other activities for the economic exploitation and exploration of the EEZ. While extensive rights are given, particularly in relation to fishing and conservation to prosecute the economic function of the EEZ: cf Evans, at 651; it is the case that international law has not devolved entirely to coastal States the authority for regulating EEZs: cf Barnes, "The Convention on the Law of the Sea: An Effective Framework for Domestic Fisheries Conservation", in Freestone, Barnes and Ong (eds), The Law of the Sea: Progress and Prospects, at 234. They have not been given the right and power to govern those parts of the globe: cf Sea and Submerged Lands Act Case at 479. Moreover the explicit recognition in the Convention of the several rights and obligations of coastal States and other States in the EEZ, and of their reciprocal obligations to have due regard to the rights and duties of the other when exercising rights and performing duties: cf Art 56(2) and Art 58(3); reflects that balancing of interests and that qualifying of power which is characteristic of the terms of the Convention: Gavouneli, 62-66. 723 Had the application provisions of s 6 of the NT Act not extended explicitly to any waters over which Australia asserts "sovereign rights" under the SSL Act, there may have been some ground for saying that the EEZ regime did not provide a welcoming environment for the recognition of native title rights. The Convention does not recognise such rights. Its concern is with the rights, interests and obligations of States in respect of the sea. The EEZ regime, though concerned primarily with resource exploration, exploitation, conservation and management, designedly did not provide for coastal State sovereignty as such over the EEZ. Sovereign rights - something less than "full" sovereignty - were to be afforded coastal States. As was said by one commentator (Kaye, at 409): Realistically, … there is little in [the Convention] for an indigenous group to take heart in regarding the recognition of special rights … and claims of traditional ownership over offshore areas. If anything, the reverse is true.

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724 In 1994, the SSL Act was amended to make provision for the Governor-General, by Proclamation, to declare, not inconsistently with Art 55 or Art 57 of the Convention, the limits of Australia's EEZ. The Proclamation having been made on 26 July 1994, Australia then acquired "sovereign rights" for the purposes of s 6 of the NT Act. While the clear legislative intent of s 6 was to make such rights susceptible to a claim of native title rights and interests - at least to the extent that the rights claimed fell within the ambit of, and were consistent with, the sovereign rights acquired - a claim to native title still had to satisfy the requirements of s 223(1) of the NT Act and, in particular, common law recognition. To reiterate, native title rights find their origin in pre-sovereignty law and custom which are recognised by the common law, not rights and interests which are the creature of the Act: Yorta Yorta HC, at [45]; Bodney FC at [143]. 725 The Islander society's laws and customs were, and are, acknowledged and observed in areas of the EEZ. Australia's acquisition of its sovereign rights in those parts of the native title claim area brought about "an intersection of traditional laws and customs with the common law": Fejo v Northern Territory (1998) 195 CLR 96 ("Fejo") at 128. No less so than on a change of sovereignty: see Mabo [No 2] at 63; native title rights and interests in the claim area will not be recognised by the common law if inconsistent with the sovereign rights acquired. 726 I deal more generally in the next two Parts of these reasons with the issues of non-recognition and of extinguishment of native title rights and interests. I will simply anticipate here what I say at greater length and generality in those Parts. 727 Parts of three of the marine estates I have found are in the EEZ. The first is an estate shared by Mer and Erub in a region around Seven Reefs. The remaining parts are of contiguous estates belonging to Badu and Mabuiag extending westward from the territorial seas of those islands to, in the south-west Cook Reef and otherwise along the Seabed Jurisdiction line to a point near Cook Shoal. I likewise have found non-exclusive native title rights which are essentially use rights, ie to access, use and take the marine resources of an island community claim group's own and shared areas. These rights are acknowledged by the common law in the native title claim area in Australian territorial waters. The present issue is whether they can be so acknowledged in relation to the EEZ. 728 The rights of use not involving taking raise no issue. These rights are not inconsistent with Australia's sovereign rights and will be recognised: see 11. Non-recognition of Rights and Interests. The right to access and take resources is possibly more problematic. It is not an exclusive right and therefore is not inconsistent with Australia's sovereign rights for that reason. Equally it involves maritime activities which fall within the ambit of those sovereign rights as I earlier noted. The potential complication arises for this reason. While Art 56(1) gives sovereign rights to exploit the natural resources both of the superjacent waters and of the seabed and its subsoil, Art 56(3) requires that the rights with respect to the seabed and subsoil be exercised in accordance with the Part VI which relates to the Continental Shelf. Significantly the right to exploit the natural resources of the shelf are, by Art 77(2) made exclusive - … in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.

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(b) Progressive Sovereignty and the creation of new native title rights 732 I have already indicated that, as territorial jurisdiction was acquired progressively over areas in Torres Strait, such native title rights and interests as the common law recognised in those areas became (subject to any question of extinguishment) accretions to the rights and interests that the common law would protect. The Applicant's case is that, even if the Islanders did not have native title rights and interests in an area of water at the time British Sovereignty was acquired over the islands of the Strait, it was sufficient for NT Act purposes that they had such rights at the time sovereignty or sovereign rights were acquired in that area of waters. This issue only arises in this matter in relation to Cook Reef upon the assumption that contrary to my findings, it was not already part of Badu's marine estate in 1872 when British sovereignty was acquired over Badu. 733 If the emphasis in the Applicant's contention is upon the actual area over which sovereignty is acquired (ie sovereignty is first and foremost territorial), the Commonwealth's emphasis is on the persons governed by the Sovereign and on their post-sovereignty status. It is said that, irrespective of the date when sovereignty was asserted by Australia in geographical parts of the waters of the sea claim area, the capacity of the Islander society to create new laws - and new rights and interests under those laws - ceased upon acquisition of sovereignty over the land. It was from that time that the members of the Islander society became subject to the laws of Queensland and to the sovereign authority from which the laws of Queensland draw force and effect. 734 Yorta Yorta HC clearly established, first, that before native title rights and interests in land could be recognised they had to find their origin in pre-sovereignty law and custom: at [45]; and secondly, that upon the Crown acquiring sovereignty over a territory, the indigenous law-making system which then existed could not thereafter validly create new rights, duties or interests in the territory: at [44]. As Gleeson CJ and Gummow and Hayne JJ explained (at [44]): [W]hat the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom. (Emphasis added.)

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735 Contrary to what is said by the Commonwealth of Yorta Yorta HC, my understanding of what the Court was discountenancing was the recognition of new native title rights in land over which territorial sovereignty had previously been acquired. This proposition, though, is subject to the qualification (also mentioned in Yorta Yorta HC at [44]) that account can be taken of such post-sovereignty alteration to, or development of, traditional law and custom as is contemplated by that law and custom: for a consideration of this qualification see Bodney FC at [117]-[121]. In light of a reply submission of the Applicant I will return to this qualification below. 736 As Yorta Yorta HC also makes plain, the continued existence of pre-sovereignty native title rights and interests presupposes the continued existence and observance of the traditional laws and customs under which those rights were, and are, possessed. The advent of British sovereignty did not thereafter deny the existence of the pre-existing normative system. Rather, it simply denied recognition of its law-making capability in the territory over which sovereignty had been asserted. 737 Yorta Yorta HC did not address the capability of a system of laws and customs subsisting from before sovereignty, to create new rights and interests in areas beyond the territorial sovereignty of Australia from time to time. For my own part, I do not understand why a continuing society of Aboriginal or Islander peoples should be denied this capacity in relation to a territorial area over which Australia has not previously asserted sovereignty. The Commonwealth would do so, apparently, on the basis that, on and from British sovereignty, the members of such a society became British subjects: cf Mabo [No 2], at 38; and, latterly, Australian citizens. It is not apparent why such a status change would occasion that consequence. 738 It would be anomalous and unprincipled, in my view, for the common law to require an Aboriginal or Islander society to be faithful to their laws and customs from the time sovereignty was first acquired over some part of their territory if they are to be found today to have rights and interests under those laws and customs in that part, but to refuse to acknowledge a subsequent accretion to those rights and interests in an area not hitherto the subject of Australian territorial sovereignty (ie the emergence of new rights and interests under its traditional laws and customs). If the existence of native title in that later acquired area has to be determined at the time sovereignty is asserted over it, that determination should be made by reference to the situation existing at that time. 739 In consequence I agree in the result with the Applicants' submissions. 740 The Applicant has contended in the alternative that, because the existence of sovereignty does not preclude the development of traditional law and customs in response to changing circumstances, this means that the extension of the geographical marine area of traditional rights is not necessarily precluded by the bare presence of sovereignty. The extension of rights over an area in the ordinary course of the operation of traditional laws and customs is not the same as the creation of new rights. 741 It is unnecessary to express a concluded view on this. I would nonetheless be inclined to accept what is suggested, at least in circumstances where the extension has been facilitated by, for example, technological developments as where the emergence of new and more suitable marine craft enhanced Islander capacity to extend the range of their traditional activities undertaken in accordance with their laws and customs.

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It is because those rights and interests so become enforceable in the courts, that the native title determination must identify "how rights and interests possessed under traditional laws and custom can properly find expression in … terms" comprehensible in the courts: Ward HC at [89]; Gumana TJ at [128]. 744 While emphatic adjectives have on occasion been used to describe inconsistency - "necessary inconsistency": Yarmirr HC at [61]; "fundamental inconsistency": Ward HC at [388] - I do not consider that this suggests that there are degrees of inconsistency of rights with some only attracting non-recognition. To adapt to this context what was said of the test of extinguishment in Ward HC at [82]: "two rights are inconsistent or they are not." 745 It is well established that the common law will not recognise a native title right to occupy, use and enjoy waters seaward of the high water mark to the exclusion of all others, or a right to possess and control those waters to the exclusion of all others. Such rights are inconsistent with the public's rights to fish in, and to navigate over, those waters: Yarmirr HC at [97]-[100]; Ward HC, at [388]; Gumana FC [119] ff. However, it should be noted that non-recognition does not "extinguish" the native title right or interest in question: Gumana FC at [127]. The native title society can continue to acknowledge and observe its laws and customs. What it cannot do, absent common law recognition, is enforce in the Australian legal system such rights and interests possessed under those laws and customs: Gumana FC, at [170]. 746 A native title right which will not be recognised because of inconsistency with a common law right, cannot be saved by the expedient of acknowledging the common law right and by qualifying the native title right by making it subject to the common law right: Yarmirr HC at [95]-[96], [100]. 747 Because of its present relevance, there is an observation in the joint judgment in Ward HC at [52] that warrants note, the more so because the Islanders' conception of ownership of land and waters has characteristics, particularly in relation to exclusion and control, that resonate with common law notions: It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead.

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(a) Taking for trading or commercial purposes 751 While the Applicant does not claim explicitly a right to take for trading and commercial purposes, the right it claims would include such purposes and the Applicant does not disavow this. Both the Commonwealth and the State contend that the common law would not recognise a right to take for such purposes. As the State puts it, the right to access, take and use resources for trading or commercial purposes is an integral aspect of a right of exclusive possession. Rights to take and use the resources of an area for trading or commercial purposes cannot be sustained in the absence of a right to occupy the area to the exclusion of all others. 752 With the greatest of respect to others who may, or may appear to, have expressed a like view in relation to a claimed right to trade in a claim area's resources: cf Commonwealth v Yarmirr (2000) 101 FCR 171 ("Yarmirr FC") at [250]-[251]; Daniel v Western Australia [2003] FCA 666 at [320]; I cannot accept this if it purports to state a rule of universal application. It may well be the case that a right to exclusive possession may carry with it the right to exploit the area's resources in trade and commerce. But at least in relation to the sea - and particularly in waters with the abundant resources Torres Strait has - it is by no means apparent, absent a legislative regime to the contrary, why marine resources may not be exploited by those who care to do so for trading and commercial purposes, though they lack entirely any exclusive right to possession of the area or do not purport to assert any such right. 753 What is difficult to understand is why a right to take marine resources for trading or commercial purposes is said to presuppose a right to exclusive possession. Such a proposition is belied by the common law experience in this country. As was said in Yarmirr HC at [53]: Before federation the boundaries of the colonies ended at low-water mark. Any assertion of sovereignty, before federation, over the area beyond low-water mark was made, therefore, by the Imperial Crown, not the colonies.

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(i) Applicable legal principles: Extinguishment 766 A native title applicant carries the onus of proving that native title rights and interest currently exist and have not been extinguished: Ward FC [116]-[117]. Nonetheless, the party asserting extinguishment has the evidential burden of adducing evidence sufficient to raise the issue for determination. Where extinguishment is said to arise by force of legislation, the legislation is a matter of public record and needs no evidential proof: Ward FC, at [119]. Where extinguishment is said to arise from an Act of State, or executive act, evidence is required to prove the fact and content of the act. The Crown, as the party asserting extinguishment, bears the evidentiary onus of proving the nature and content of the act said to extinguish native title, although the discharge of that evidential onus may be assisted by the ordinary presumptions of regularity and continuance: Ward FC, at [120]. 767 Though the parties have filed very extensive submissions on extinguishment, the relevant principles for present purposes are few and the parties seem to be in agreement about them. If extinguishment has occurred in this matter it will for the most part be the direct product of legislation, although there is a narrow class of case in which the question of extinguishment arises in consequence of executive action under legislation, being grants made, and licences given, to third parties. 768 First, where it is said that legislation has effected the extinguishment completely or partially of native title rights and interests (whether directly or through action mandated by it), a question of statutory interpretation arises. Because rights recognised by the common law are said to have been extinguished: Mabo v Queensland [No 1] (1988) 166 CLR 186 at 224; Mabo [No 2] at 64, 110-111; Wik Peoples v Queensland (1996) 187 CLR 1 ("Wik Peoples HC") at 247; see also Native Title Act Case at 423; the relevant interpretative principle is that, if the legislature intended such a result, it must manifest a clear and plain intent to do so: Ward HC at [78]; either by express provision in the statute or by necessary implication: Wik Peoples HC, at 247. As was said by Brennan J in Mabo [No 2] at 64: This requirement, which flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land, has been repeatedly emphasized by courts dealings with the extinguishing of the native title of Indian bands in North America. … [R]eference to the leading cases in [Canada and the United States] reveals that, whatever the juristic foundation assigned by those courts might be, native title is not extinguished unless there be a clear and plain intention to do so. That approach has been followed in New Zealand. It is patently the right rule. (Footnotes omitted.)

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770 Given the contemporary significance now attributed to "context" in statutory interpretation: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; where the extinguishment is said to have resulted directly from legislation itself without, for example, the conferral of inconsistent rights on a third party: cf Fejo at 126; the absence in contextual material of any indication of a purpose to override native title rights, could, I would respectfully suggest, be of some significance in the interpretation of a statute enacted after the decision in Mabo [No 2]; cf the comments of Gummow J in Wik Peoples HC at 184-185; see also by way of contrast, Haida Nation v British Columbia (Minister of Forests) (2004) 245 DLR (4th) 33 at [25], [27], [32]. 771 Thirdly, in Mabo [No 2] (at 64), Brennan J observed that the required intention to extinguish was not disclosed in a law "which merely regulates the enjoyment of native title rights and interests" or which establishes a "regime of control" which is consistent with their continued enjoyment. The effect of regulatory legislation was enlarged upon in Yanner v Eaton (1999) 201 CLR 351 ("Yanner") where an Aboriginal person using traditional means caught two juvenile estuarine crocodiles on his traditional lands. The Fauna Conservation Act 1974 (Qld) prohibited a person from (inter alia) taking fauna of any kind "unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act". Yannerdid not have a licence, etc. 772 Further the Act made all fauna, save that taken lawfully during an open season, to be the property of the Crown and under the control of the Fauna Authority: s 7(1). Gleeson CJ and Gaudron, Kirby and Hayne JJ concluded that the "property" so conferred on the Crown was no more than the aggregate of the various rights of control by the Executive that the legislation created. Those rights were less than rights of full beneficial, or absolute ownership. As their Honours said (at [30]): Taken as a whole the effect of the Fauna Act was to establish a regime forbidding the taking or keeping of fauna except pursuant to licence granted by or under the Act.

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(a) The Queensland legislation 780 Queensland's first Fisheries Act - that of 1877 - had manifest regulatory and conservation purposes. It prohibited using a boat for catching fish for sale (a formula later to be defined and used in such legislation thereafter) without a licence (s 11) and catching fish with a net for sale in certain areas without a licence (s 12). The licensing regime took the form of the payment of a standard fee in advance for the licence to engage in the activity in question. The conservation measures in the Act included controlling netting and the prescription of permissible net types and uses (s 2); regulating the size of fish that could be taken (s 4); and banning the use of explosives and poisons for taking (s 8). 781 The next significant marine products legislation was the Pearl-shell and Bęche-de-mer Fishery Act 1881 (Qld). It imposed stringent controls over the business of diving for, collecting, preparing, storing or carrying pearl oysters, pearl oyster shells, bęche-de-mer (s 1) and (from 1890) turtles, by requiring all ships or boats employed in such a business to be licensed (s 3), and making it an offence to employ a ship or boat in such activities without a licence (see ss 4, 5 and 6). Amendments made in 1891 extended the regime of regulation of the pearl-shell and bęche-de-mer fishery; introduced restrictions as to size and varieties (s 11); and enabled prohibitions to be imposed in respect of particular areas (s 13). 782 Importantly for present purposes the Amendment Act of 1891 created a leasing system for pearl shell and bęche-de-mer grounds. Section 16 permitted the Governor in Council to grant a lease of the whole or any part of an outlying reef or bank, or of the foreshore of an island, or of any Crown lands lying below high-water mark in any river, inlet, estuary, or creek, or any lands lying below tidal waters within the limits of the territorial jurisdiction of Queensland, for the collection, storage, cultivation, or propagation, of pearl oyster shell or of bęche-de-mer, or of sponges or other products of the sea. By an amendment made in 1913, a lease so granted would by virtue of s 16A and subject to the Regulations made under the Act: (i) Confer on the lessee the right to take, collect, and gather within the demised area (to the exclusion of all other persons) pearls, pearl-shell, bęche-de-mer, sponges, and any other marine animal life or product of the sea; (ii) Confer authority on the lessee to exclude persons from the demised area, and such authority shall be absolute unless by the terms of the lease it is made subject to any modification; (iii) Enure for the benefit of and be binding on the lessee, his executors, administrators, and permitted assigns.

[220]

I would note in passing it was also made an offence to (inter alia) cut or remove any mangroves or timber growing upon any part of the foreshores of any Queensland waters: s 36. In 1945 an amendment to the Act introduced a licensing system for the removal of coral and shell grit: s 18(6). A 1955 amendment permitted such licences to be exclusive: Fish and Oyster Acts Amendment Act 1955, s 6. 786 Conservation measures were a more prominent feature of the Act and were enlarged over the ensuing decades. By s 7(1) of the 1914 Act, the Governor in Council could prohibit or restrict the taking of all or any kind of fish in any Queensland waters, either absolutely or except by such means as were prescribed. This provision was amended and extended in the 1955 Act as, for example, by permitting the declaration of close seasons for the protection generally of any species of fish: 1955 Act, s 5. It was unlawful to take or sell or have in possession fish of the species referred to in the First Schedule to the Act. 787 One presently notable exemption from the provisions of the 1914 Act as amended was contained in the 1955 amending Act; the Act was not to apply to the taking of fish by any Islander (within the meaning of the Torres Strait Islanders Act 1939 (Qld)) who usually lives on a reserve, for consumption by Islanders: s 4. 788 I should interpose that the Whaling Acts 1935-1936 imposed an absolute prohibition on the taking or killing of any "right whale, any calf or suckling whale or immature whale, or any female whale accompanied by a calf or suckling whale" (s 6); and otherwise prohibited the taking of any (other type of) whale without a licence (s 7). Other species of marine life were brought within such an absolute prohibition by the successor Act to these Whaling Acts. 789 In 1957 a further consolidating Fisheries Act was enacted. It brought the Whaling, Pearling, Oystering and Other Fisheries legislation into one Act. Under s 6(1) of the Act Queensland waters were defined to mean, inter alia, "[t]he sea within the territorial limits of Queensland". The Fisheries Act 1957 (Qld) continued the absolute prohibition in respect of certain whales (s 15), and the prohibition on taking other types of whales without a licence (ss 16-20); continued the prohibitions in respect of the taking of pearls, pearl-shell, trochus, bęche-de-mer etc (including making it unlawful to use a vessel for pearling unless licensed) (Part III); continued the prohibitions in respect of oystering (Part IV); and continued the prohibitions in respect of other fisheries (Part V), including the general prohibition on taking fish for sale without a licence (s 80), and employing or using a vessel to take fish without a licence (s 79). This Act is significant in a number of respects. First, it continued the exemption from the Act of Torres Strait islands taking fish, and now oysters, for consumption by Islanders: s 3(1). Secondly, it defined "Sell" for the first time: s 6(1). Notably the definition included "barter, exchange, or supply for profit". Thirdly, again for the first time, the legislation dealt explicitly with the issue of licences. Section 11, provided for present purposes that: 11.(1) (a) Subject to this Act, the Minister may grant, renew, and transfer licences of the different classes for any of the purposes of this Act. … (c) Each and every licence granted under this Act … shall be deemed to be granted subject to all the terms and conditions, if any, therein specified and to all other terms and conditions as may for the time being be prescribed for the description of license to which that license belongs. (3) Subject as hereinafter in this section provided, the Minister may grant or refuse to grant any license or the renewal or transfer of any license under or for any purpose of this Act: … The determination of the Minister that a license or the renewal or transfer thereof shall or shall not be granted, as the case may be, shall be final and conclusive of that matter, and it is hereby declared that the Minister may act in the matter according as he, in his absolute discretion, deems fit. (4) In granting any license or a renewal or transfer thereof the Minister shall not be bound by the application but, subject to this Act, he may - (i) Grant the license or renewal or transfer without terms and conditions; or (ii) Grant the license or renewal or transfer subject to such terms and conditions as may be fixed by him. (Emphasis added.)

[226]

Section 23 created offences relating, inter alia, to taking fish, selling fish or using a fishing vessel, for commercial purposes, if the person or the vessel was not licensed as stipulated. 793 There are several additional comments I should make. The public interest concern in both the protection, conservation and management of the State's fisheries and the ordered development and welfare of the fishing industry, are writ large in the Act. I note the following purely for purposes of exemplification: (a) the establishment of a Fisheries Research Fund: s 7; (b) the enlarged Schedule of protected fish and marine products: ss 11, 12; (c) the constituting under the Act of the Queensland Commercial Fishermen's State Council: s 21; (d) and Part VIII of the Act ("Management and Protection of Fisheries Resources") which includes powers to declare marine parks (s41-s49), reserves and sanctuaries (s 51) and closed seasons and closed waters (s53-s55). 794 The Commonwealth has described the 1976 Act as establishing "a comprehensive scheme" for the regulation of fishing off coastal Queensland, and as having heralded "a more sophisticated approach to the industry generally". I agree. 795 The Act was amended in 1981. The primary purpose of this was to enable arrangements with respect to the management of certain fisheries to be entered into between, and be given effect to by, the Commonwealth and the State. I will refer in passing to joint arrangements below. One aspect of the amendment related to fishing for commercial purposes by "community fishermen", ie licensed Islanders. The apparent object of the provisions was to encourage the development of "cottage-industry-type fishing" in the Strait: Record of the Legislative Acts, First Session, 1981-82, at 223; Queensland, Parliamentary Debates, Legislative Assembly, 24 November 1981, 3875. The following definitions were inserted into s 6 of the Principal Act: "community" means the inhabitants of a reserve being land reserved or set apart by the Governor in Council under the provisions of law relating to Crown lands for the benefit of Aborigines or Torres Strait Islanders; "community fisherman" means a person licensed under this Act as a community fisherman; "community fishing vessel" means a fishing vessel licensed under this Act as a community fishing vessel. 796 The "commercial fishing" provisions were in turn amended. Section 22 now provided for the granting of a "community fisherman's licence" and the offences in s 23(a)-(c): A person - (a) shall not take fish for a commercial purpose unless he is the holder of a master fisherman's licence, a community fisherman's licence or, while in the company and under the direction of a master fisherman or of a community fisherman, he is the holder of an assistant fisherman's licence; (b) shall not sell fish taken by him unless he is the holder of a master fisherman's licence or a community fisherman's licence; (c) shall not use, employ or have in charge a fishing vessel to take fish for a commercial purpose unless that vessel is licensed as a commercial fishing vessel or a community fishing vessel and the fish are taken by a master fisherman, community fisherman or assistant fisherman in the company or under the direction of a master fisherman or of a community fisherman. (Emphasis added.)

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797 For the sake of completeness, I would note that the Fisheries Act 1994 (Qld) is the legislation currently in force. The Act applies, inter alia, to the coastal waters of Queensland but does not apply to activities to which a Commonwealth law co-operative fishery applies, or exclusive Commonwealth matters for a State law co-operative fishery: s 11. Section 14 protects Aboriginal and Torres Strait Islanders rights to take fisheries resources and use fish habitats in accordance with tradition, though subject to the provisions of any regulation that "applies to acts done under … Island custom". The extensively defined main purpose of the Act (s 3), was to be achieved, inter alia, by providing for "the management of commercial, recreational and indigenous fishing". 798 Part 4 of the Act established the Queensland Fisheries Management Authority to ensure the appropriate management, use, development and protection of fisheries resources. Management and regulation is largely left to be defined by management plans produced by fisheries agencies. A management plan may deal with fishing methods, the protection of certain species, the use of fishing apparatus and the period of fishing: s 36. The management plan may also declare closed seasons, closed waters or regulated fish and quotas: ss 37 and 38. Similar regulatory powers are granted to fisheries agencies: ss 43 and 44. A management plan may also provide penalties for contravention of its provisions. 799 In addition to the imposition of a comprehensive and multi-tiered licensing system, the Act made it an offence to contravene closed season and closed water declarations: s 77; to take or sell regulated fish or to contravene quotas: ss 78 and 79. Part 6 reflects increasing concern to protect and preserve fisheries resources. 800 Part 7 is concerned with the Commonwealth-State management of fisheries through joint authority fisheries. The State is empowered to make an arrangement under Part 5 of the Fisheries Management Act 1991 (Cth) for the management of a particular fishery, whether or not a joint authority is to have the management of the fishery under the arrangement: s 132. 801 The State relies as well upon "numerous examples" of acts done under the particularised legislation on which it relies which, it says, similarly evince a clear and plain intent to control the use of the sea, the seabed and its resources and to extinguish or abrogate any otherwise existing public right, native title right, or right to take the resources of the sea for any commercial purpose. Of this material I would make the following comments. 802 There are in evidence a relatively slight number of Orders in Council made under fisheries and fauna statutes which illustrate regulatory measures being taken which were of an essentially conservation and fisheries management variety. The primary preoccupations under fisheries legislation were with netting and mesh sizes, closing waters, catch size, and prohibiting taking certain species. There was little that relates directly to Torres Strait: but see the Order in Council of 16 November 1967 prohibiting the taking of Trumpet Shell "in all Queensland waters"; that of 20 April 1978 declaring much of the coastal waters in Torres Strait closed in relation to bęche-de-mer; or that of 12 November 1981, that declared areas of Torres Strait closed waters in relation to nets. The evidence relating to licences, so far as it went, revealed that the licensing regimes of the various Acts were implemented but little more. I was, for example, taken to no evidence which indicated that exclusive leases or licences were granted under fisheries Acts, though they made provision for such grants. 803 The State's contention is that its legislative regime, dating back to 1877, evinces a clear and plain intention to regulate and control all "fishing" in Queensland waters (both domestic and commercial). Insofar as fishing for commercial purposes is concerned, the legislation does not merely regulate such activity; it clearly abrogates or extinguishes any (otherwise existing) right - whether a native title right, or a public right - to fish for commercial purposes; and it replaces such rights with private statutory rights to engage in commercial fishing activities, which are conferred only upon those who hold the necessary licences provided for under the legislation. Like the legislation considered by the High Court in Harper and Gumana HC, as well as by the Full Court in Yarmirr FC, by Sundberg J in Neowarra and by Selway J in Gumana TJ, the legislation summarised above has, it is said, extinguished any rights to take or use the resources of the claim area for trading or commercial fishing purposes. 804 For its part, the Commonwealth seeks to piggyback on the State's submissions. As I will indicate later, the territorial reach of the State's legislation is significantly more restricted than that of the Commonwealth.

[229]

Fisheries Act 1952 (Cth) and Pearl Fisheries Act 1952 (Cth) 807 The Fisheries Act 1952 (Cth) was the first general fisheries legislation enacted by the Commonwealth. This Act remained in force until repealed by the Fisheries Management Act 1991. At the same time as the Fisheries Act 1952 was enacted, the Parliament also enacted the Pearl Fisheries Act 1952 (Cth). 808 Both Acts operated on essentially the same principles. By s 7 of the Fisheries Act 1952 and s 8 of the Pearl Fisheries Act 1952, the Governor-General could, by proclamation, "declare any Australian waters to be proclaimed waters for the purposes of this Act". "Australian waters" were originally defined as meaning "(a) Australian waters beyond territorial limits; and (b) the waters adjacent to a Territory and within territorial limits". The definition of "Australian waters" was amended by the Fisheries Act 1953 (Cth) so as to include "(c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits …". The Pearl Fisheries Act (No 2) 1953 (Cth) amended the definition in a like manner but also, adding in addition, "being waters that are above the continental shelf". Proclamations were issued pursuant to s 7 of the Fisheries Act 1952 on 9 December 1954, 16 February 1956, 22 August 1968, 26 September 1979 and 20 December 1990 which embraced the claim area. 809 Both Acts provided for the granting of licences to take fish or use a boat to take fish in proclaimed waters or an area of proclaimed waters, such licence being subject to the conditions specified in them. The forms of licences under the Fisheries Act 1952were prescribed in the Fisheries Regulations, Statutory Rules 1954 (Cth), No 116. 810 The Minister was empowered to prohibit the taking of fish. Section 4 provided that "fish" includes turtles, dugong, crustacea, oysters and other shellfish but does not include any species of whales, pearl shell, trochus, bęche-de-mer or green snail". That definition was amended by the Fisheries Act 1968 (Cth) to exclude any organism that is a sedentary organism for the purposes of the Continental Shelf (Living Natural Resources) Act 1968 (Cth). Notices prohibiting the taking of prawns, for example, and providing for seasonal closures of specified areas, including areas of the claimed area, were in fact issued under the Fisheries Act 1952. 811 The taking of fish or pearl-shell, trochus, bęche-de-mer and green snail, or use of a boat for that purpose, in an area of proclaimed waters was prohibited without a licence: s 13. These prohibitions were not limited to the taking of fish for any particular purpose until 1973 when s 13(4) of the Fisheries Act 1952 was amended so as to create a defence to a prosecution for being in possession of fish when the taking of fish is prohibited by notice if the fish was not taken for trading or manufacturing purposes. Otherwise this scheme was essentially retained for the duration of this Act until 1985 with the introduction of managed fisheries where licences, specified to be issued for 12 month periods, were made subject to plans of management for the relevant fishery. 812 On 30 November 1954, the Governor-General issued a proclamation declaring "proclaimed waters" pursuant to s 7 of the Fisheries Act 1952. These waters completely surrounded the Australian coast but did not include waters within the territorial limits of a State. These proclamations were held to be valid in Bonser v La Macchia (1969) 122 CLR 177. The "proclaimed waters" thus encompassed the waters within the claimed area. 813 The 30 November 1954 proclamation was amended and later replaced by proclamations issued by the Governor-General, and published in the Commonwealth Government Gazette on 16 February 1956 and 22 August 1968, respectively. The Fisheries Act 1952 was amended so as to provide that: In relation to proclaimed waters comprised in the declared fishing zone, this Act applies to all persons, including foreigners, and to all boats, including foreign boats.

[232]

The Fisheries Management Act 1991 (Cth) 817 The Fisheries Management Act 1991 ("the 1991 Act") replaced both the Fisheries Act 1952 and the Continental Shelf Act 1968. That Act applies, in relation to the AFZ and to fishing for sedentary organisms outside the AFZ, to all persons and boats. The AFZ is relevantly defined in s 4 as meaning the water adjacent to Australia between the inner limits of the baselines and 200 nm from the baselines, excluding the coastal waters, and waters within the limits, of a State or internal Territory and excepted waters: see also s 5 "coastal waters". The Act, though, does not apply to recreational fishing carried on in the AFZ or coastal waters other than that prohibited or regulated by a plan of management: s 10(3). 818 Although management of fisheries under the Act is primarily to be determined by plans of management, the Act creates a number of specific offences, the most significant of which is the prohibition upon engaging in commercial fishing at a place in the AFZ without a fishing concession or scientific permit, authorising that activity: s 95(1). 819 Aside from Joint Authority Management Fisheries (discussed below), the 1991 Act provides for the Australian Fisheries Management Authority (AFMA) to develop management plans which may determine such matters as fishing capacity for a fishery, management of the fishery by statutory grants and the prohibition and regulation of recreational fishing in the fishery: s 17, s 21 and s 32. Certain objectives are specified in s 3 of the 1991 Act for the administration of the Act and by AFMA in the performance of its functions: (a) implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and (b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development, in particular the need to have regard to the impact of fishing activities on non-target species and the marine environment; and (c) maximising economic efficiency in the exploitation of fisheries resources.

[235]

821 The Fisheries Amendment Act 1980 (Cth) amended the Fisheries Act 1952 by inserting Part IVA in order to implement the Offshore Constitutional Settlement. As a result, a number of joint authorities were established including the Northern Australian Fisheries Joint Authority (comprised of the Commonwealth Minister with the appropriate Ministers of Queensland and the Northern Territory): s 12D. Provision was also made for the establishment of other Joint Authorities in the future. 822 The functions of the Joint Authorities in relation to fisheries were as conferred on it by Part IVA of the 1952 Act or a law of the State represented on the Joint Authority. 823 Section 12H in Div 3 of Part IVA provided that the Commonwealth may make arrangements with States represented on the Joint Authority. The Authority is to have management of a particular fishery in waters adjacent to those States. Such arrangements with only one State were required to provide either that the fishery was to be managed in accordance with the law of the Commonwealth or the law of the State. Those with two or more States were to be managed in accordance with the law of the Commonwealth. 824 Where a Joint Authority had management of a particular fishery under an arrangement, the Authority had the "functions of keeping constantly under consideration the condition of the fishery, formulating policies and plans for the good management of the fishery and, for the purposes of the management of the fishery, exercising the powers conferred on it by [the relevant State or Commonwealth Act] and cooperating and consulting with other authorities matters of common concern": s 12M. The powers of grant, endorsement, transfer and other matters associated with licences were exercisable by the Joint Authority in relation to Joint Authority fisheries: s 12P. 825 The Fisheries Act 1976 (Qld) was amended in 1981 by the Fisheries Act Amendment Act 1981 (Qld) in order to complement the provisions of the Commonwealth Act relating to Joint Authority Managed Fisheries. Section 36H provided that Queensland may, in accordance with s 12(J) of the Commonwealth Fisheries Act 1952make an arrangement referred to in s 12H of that Act for the management of a fishery. 826 The Joint Authority Scheme established by Pt IVA of the Fisheries Act 1952 (Cth) was continued by Pt 5 of the 1991 Act (which came into operation on 3 February 1995 when Pt IVA of the Commonwealth Fisheries Act 1952 ceased to have effect) and by Pt IVA of the Queensland Fisheries Act 1976. Section 76 of the Commonwealth Act states that where an arrangement provides that a fishery (being one which may be carried on partly within State coastal waters) is to be managed in accordance with the law of the Commonwealth, the coastal waters of the State are taken to be in the AFZ for the purposes of the application of the 1991 Act. Correspondingly, s 10(2) provides that Commonwealth law applies to the exclusion of State or Territory laws in coastal waters in respect of fisheries to which an arrangement mentioned in s 12K of the 1952 Act or s 76 of the 1991 Act relates. However, where the arrangement provides that the fishery is to be managed in accordance with a State, the 1991 Act does not apply except to foreign boats. A number of arrangements between the Commonwealth and Queensland made pursuant to the 1952 Act have been continued and new ones commenced. 827 The 1991 Act also provided that, where a fishery is to be managed in accordance with the law of the Commonwealth, AFMA has the same powers in relation to the fishery as it would have if the fishery were under AFMA's management: s 78(2) and see Fisheries Administration Act 1991 (Cth) Pt 2 for the functions and powers of AFMA.

[240]

833 Part III enables the Minister to require the masters of boats and licensees engaged in commercial fishing (other than community fishing) in any area of Australian jurisdiction, to provide specified information relating to fishing: s 14. Catch report requirement notices made under this section are in evidence. I would also note in passing that the Torres Strait Fisheries Regulations 1985 authorised the Minister to require log books to be kept "in pursuit of the objectives of the Act" recording the taking of kinds of fish, areas etc: regs 10, 11. Notices made under these regulations are in evidence. 834 Section 15 as noted above, permits Proclamations to be made in relation to fishing in adjacent near areas. Under s 15A the Minister may, by legislative instrument, determine a plan of management for a fishery in an area of Australian jurisdiction. The objectives of such plans and the multitude of matters those may address - eg determining the fishing capacity of the area and its measure (s 15A(4)), licensing etc (s 15A(5)), the allocation of units of fishing capacity to boats (s 15A(6)) etc - are detailed at some length. Section 15(9) requires that while a management plan is in force, the performance of functions and exercise of powers under the Act in relation to the fishery "must be in accordance with the plan of management, and not otherwise". 835 Section 16 outlines seventeen different and diverse subjects relating to fishing that the Minister may, by legislative instrument, prohibit. The section permits exemptions to be made. 836 A significant number of prohibitions (with or without exemptions) were tendered covering subjects as diverse as taking dugong and turtle, the equipment used in taking fish, rock lobster etc, the creation of sanctuaries, size and area restrictions for particular species, take and carry limits for specified fish species etc. A common form of exemption related to taking "in the course of traditional fishing". The following is provided purely for illustrative purposes. It is a Fisheries Management Notice made under s 16: PROHIBITIONS (GENERAL) 6.1 Pursuant to paragraph 16(1)(a) of the Act, the taking, processing or carrying of live pearl shell of the species Pinctada maxima or any other pearl shell species whether alive or dead, is prohibited. 6.2 Pursuant to paragraph 16(1)(a) of the Act, the taking, processing or carrying of dead pearl shell of the species Pinctada maxima is prohibited. EXEMPTIONS FROM PROHIBITIONS 7. Pursuant to paragraph 16(1A)(d) of the Act, the following persons are exempt from the prohibitions in paragraph 6.1: (a) a person holding a licence granted under either subsection 19(2) or 19(3) of the Act that entitles the person to take, process or carry pearl shell; (b) a person using a boat and who holds a licence that was issued under the law of Papua New Guinea that is endorsed by Australia under section 20 of the Act, authorising the boat to be used to take pearl shell in the area of Australian jurisdiction; (c) a person holding a licence granted under the Queensland Fisheries Act 1994 that entitles that person to engage in pearl shell farming; (d) a person using a boat, that does not exceed 6 metres in length, in the course of community fishing; and (e) a person using a boat in the course of traditional fishing.

[241]

837 Part IV deals with licences. Section 17 indicates the licences that may be required for taking fish in the course of community fishing. Section 17(1) authorises the Minister, by legislative instrument, to declare (inter alia) that a licence in respect of a boat (under s 19(2) or (3)) is required for taking etc of fish in the course of community fishing. By instrument dated 25 March 1999 the then Minister made such a declaration in respect of the area of Australian jurisdiction. Community fishing is in this respect now the same as commercial fishing. Section 19 prescribed the licences for persons and boats engaged in commercial fishing. Finally, s 45 creates fourteen offences relating to commercial fishing and community fishing. These relate, in the main, to fishing etc or being in charge of, or on, a boat without the prescribed licence, or to failing to comply with a condition of a licence. 838 Part V deals with the establishment, functions, arrangements for, etc of the Protected Zone Joint Authority. There is in evidence a copy of the current "arrangement" the Commonwealth has made with Queensland under s 31 to have management of the Protected Zone and adjacent near areas as a "fishery". It was published on 19 March 1999. Insofar as presently relevant, it provides: 3 Arrangement with Queensland (1) The Protected Zone Joint Authority is to have the management of the fishery specified in section 4. (2) The fishery is to be managed in accordance with the law of the Commonwealth. 4 The fishery (1) The fishery is commercial fishing within an area specified in subsection 4(2), of any kind other than: (a) fishing for sedentary organisms in the area of the Protected Zone bounded by the Fisheries Jurisdiction Line lying north of the Seabed Jurisdiction Line; and (b) aquaculture; and (c) fishing in areas within the limits of Queensland. (2) The areas are: (a) that part of the Protected Zone south of the Fisheries Jurisdiction Line; and (b) … (c) the area declared under that subsection by the Proclamation of 18 March 1999. (Emphasis added.)

[242]

839 Finally, I should note that one part of the Part A claim encompasses an area in the far south-west beyond Cook Reef which is outside the Protected Zone. My geography findings do not include it within the marine area where native title rights and interests exist. For that reason it is unnecessary to refer to the fisheries law that applies there. 840 The Commonwealth's contentions draw upon both the State's and its own legislation. It is said that the seas adjacent to Queensland have since at least 1877 been the subject of legislative fisheries management and control. The analysis of the legislative regimes for fisheries in the claim area demonstrates that, by increasingly comprehensive management regimes, the Crown has retained exclusively for itself and its agencies the capacity to manage seas which include those in the claim area. In effect, it has "covered the field" so far as control rights over fishing are concerned. 841 In all the legislation since 1877 licences have been required to fish for commercial purposes. The powers to close off areas to fishing and to limit fishing activities and methods in particular areas or generally have, it is said, been conferred with respect to commercial fishing. From the outset, fisheries management has tended to focus upon commercial fishing. This focus has been indicative of the treatment of fisheries in the sea as a public resource and reflects concerns about the long term development and sustainability of the fishing industry. Commercial fishing potentially involves the greatest threat of over-exploitation and damage to the marine environment. In any event it is clear that the Torres Strait Fisheries Act would be inconsistent with any native title right to fish for commercial purposes. 842 The Applicant has contended that the relevant native title right is a right to access and take marine resources, not a differentiated right to take resources for a trade or commercial purposes. The native title holders' rights to access and take have not been extinguished in any respect by the regulatory regimes for offshore resources under Queensland or Commonwealth legislation. That legislation "merely regulates the enjoyment of native title or creates [a] regime of control that is consistent with the continued enjoyment of native title": Mabo [No 2] at 64. Limited prohibitions that are part of a wider scheme of regulation are not inconsistent with characterising the scheme as regulatory. A legislative scheme imposing a requirement to obtain a licence before a prohibited act is done is, by its nature, a scheme of regulation rather than a prohibition. The case law on extinguishing the public right to fish (which is "freely amenable to abrogation": Harper, at 330: Arnhem Land Aboriginal Land Trust, at [19]-[29]), applies a different legal criteria for extinguishment to that to be applied to native title.

[243]

Consideration 843 I have confined my attention in what follows in two respects. First, while the concept of "marine resources" relied upon by the Applicant is more extensive than what is connoted by "fish" (even in the wide sense in which it has characteristically been used in fisheries legislation), the almost exclusive focus in submissions has been on fishing. For that reason I have limited the legislation to which I have had regard to fishing, though I note in its Extinguishment Particulars that the State does refer at some length to Acts dealing with animals, birds, fauna protection, nature conservation etc. Some but not all of these Acts apply to the sea claim area because "land" has been defined to include "waters". For the most part these Acts are of peripheral relevance to a sea claim. It is for example, interesting to note that an Order in Council (9 Sept 1922) provided a closed season for the "Torres Strait Pigeon". Material such as that, and there is a deal of it, is of no present relevance. I do not intend to deal with such Acts separately other than to note that on their proper construction some may raise an extinguishment issue in relation to a particular resource. Fishing for commercial purposes is, on the evidence, the matter of present controversy. Secondly, I have focussed primarily upon the Commonwealth's Fisheries Act 1952 ("the 1952 Act") and Torres Strait Fisheries Act 1984 ("the 1984 Act"). The reason for this is that, save for a narrow area of internal water which is subject to Queensland law and possibly the coastal waters around the islands to the north of the Seabed Jurisdiction Line, the presently applicable law in relation to fisheries in the Part A sea claim area in which I have found native title rights to exist is the Torres Strait Fisheries Act: see s 15(1) and s 31 of the 1984 Act; the "Arrangements made with Queensland" of 19 March 1999 and 30 January 1985, the former of which remains in force and under which Commonwealth law (which is the 1984 Act) applies: see the 1999 Arrangement, s 3(2); neither the Fisheries Management Act 1991 nor the 1952 Act apply, or did apply, to the Protected Zone or to a declared near adjacent area: see s 9 and s 5AA of these Acts respectively; see also the Fisheries Act 1994(Qld) s 11, as it applies to waters excluded from the 1999 Arrangement. 844 It is necessary to indicate what, as I understand it, is not in issue. First, it has not been said that the native title right to take marine resources has itself been extinguished. The concessions of the State and the Commonwealth presupposes the contrary. Secondly, it has not been contended that, at any time since Queensland's 1877 Fisheries Act, the native title holders have been legislatively precluded from applying for licences to fish (I use this term in the wide sense used in the legislative regimes) for commercial purposes. The evidence from the nineteenth century onwards, such as it is, is to the contrary. Professor Mullins (2008, at [199]) noted an irony in this: In 1897, John Douglas had expressed the view to the Hamilton Commission that Islanders, "should be exempt from license fees if they fish their own waters", and he went further in his annual report of the same year: "Their right to fish in their own waters has so far been recognised that they are not required to pay for licenses for their boats." The precedent for the waiving of license fees was set in the case of Mabuiag's Little Nell … and it was carried on in the Company Boat system.

[244]

This precedent apparently was reversed in the late 1940s: Mullins (2008, at [195]). Thirdly, while it is the case that particular statutes probably have prohibited native title holders absolutely from taking particular marine resources, I do not understand that I am being asked to do otherwise than note that there are such proscriptions in Fisheries legislation; that they apply to native title holders; and that they are unaffected by s 211 of the NT Act. Fourthly, it has not been contended, and has not been the subject of evidence, that native title has been extinguished in any particular parts of the sea claim area by leases and licences given under Queensland Statutes which attached exclusive rights to such grants. Fifthly, the Respondents have not advanced a case that the right to fish a particular marine species, or number of species, for commercial purposes has been legislatively extinguished and replaced by, in effect, a statutory fishing right, by virtue of the manner in which specific, legislatively mandated management plans have been structured - as, for example, the Torres Strait Prawn Fishery Management Plan 2008 made under s 15A of the 1984 Act; see also The Western Tuna and Billfish Fishery Management Plan 2005 made under s 17 of the Fisheries Management Act 1991. Sixthly, no submissions have been made, and no evidence led, to support a case that Islander fishing for commercial purposes may be permissible under the Torres Strait Fisheries Act to the extent that such fishing was "traditional fishing", ie was "for use in the course of … traditional activities": see PNG Treaty Art 1(l) and (k) which seem to encompass "activities of a commercial nature" and the definition of "commercial fishing" in s 3(1) of the Act which excludes "traditional fishing". Seventhly, it has not been disputed that, if Islanders wish to engage in fishing for commercial purposes in those parts of the Protected Zone and the declared near adjacent areas into which the Part A claim falls, they must secure such licences as are required under the Act and that if they fish without such licences, they are liable to prosecution under s 45 of the Act. 845 What I am left with is a narrow and seemingly barren question. It is this. Notwithstanding that the Islanders can, by seeking the necessary licences, avail of the present fisheries regime operative in the Part A claim area to fish for commercial purposes, have they nonetheless lost a native title right to fish for commercial purposes because of the extent of the rights of regulation and control the Crown in its State and Commonwealth manifestations has progressively arrogated to itself over a more than 130 year period? 846 At the outset I should indicate I consider that decisions on the abrogation of the common law public right to fish such as Arnhem Land Aboriginal Land Trust have no significant analogical role to play in answering this question. That right and native title rights are not, as I have already indicated, commensurable, as witness the protections accorded them respectively by our principles of statutory interpretation. They are rights which are different in character and, in our jurisprudence, apparent significance: see "Applicable legal principles: Extinguishment" above. 847 The native title right I have found is a right to access and take marine resources as such - a right not circumscribed by the use to be made of the resource taken. This said, where the activity engaged in when exercising that right has itself a discrete and understood purpose, I accept that that activity may properly be able to be treated as a distinct incident of the right for extinguishment purposes. As have some number of the judges of this Court (eg Yarmirr FC at [255]; Neowarra, at [779]; Gumana TJ, at [247(b)]) I accept for present purposes that a right to take resources for trading or commercial purposes - whether exclusive or non-exclusive - is a discrete and severable characteristic of a general right to take resources. To this extent I reject the Applicant's submission that it is impermissible so to "subdivide" this right. The distinction between engaging in an activity for commercial purposes or for non-commercial, private or other purposes is one commonly made. It was from the outset, and remains, a characteristic of the fisheries legislation considered in this matter. It is reflected in the differentiation of purposes in s 211 of the NT Act. 848 There are two very discernible and evolving features of the fisheries legislation over time. These seem clearly enough to be interrelated. The first relates to the expansion of the particular public interests of which account is to be taken in the design and implementation of legislative schemes to regulate and control fisheries. The second relates to the changing character of the discretions given in the grant (or refusal) of leases and licences under such legislation. While there were certain fisheries - for example pearl shell, bęche-de-mer and oyster fisheries - which were highly regulated from an early date, an analysis of the legislation over time demonstrates, as the Commonwealth has observed, increasingly comprehensive - and I would add sophisticated - management regimes which had and have as a principal focus, the control and management of commercial fishing. That process, in my view, became apparent in the latter years of Queensland's 1914 Fisheries legislation and accelerated thereafter. Queensland's 1957 Fisheries Act was the first to deal explicitly with the Minister's discretions to grant etc licences. The discretions given to grant or refuse were permissive and absolute: see s 11 of the 1957 Act. The 1976 Act did not retreat from this. 849 The State and Commonwealth statutes, understandably, reflected differing techniques of legislative drafting over time. For the reason I gave above, I will focus on the 1952 Act and the 1984 Act. Their regulatory regimes followed a common pattern. The relevant Minister could regulate fishing by prohibiting a specified range of activities and matters - eg "the taking of fish" etc: 1952 Act, s 8; 1984 Act, s 16; and could grant licences to fish etc: 1952 Act, s 9; 1984 Act, s 17 and s 19. A series of offences were created for doing specified acts or engaging in specified activities without the required licence, or in breach of the conditions of that licence: 1952 Act, s 13; 1984 Act, s 45. The 1952 Act extended to any taking for trading or manufacturing purposes within a proclaimed area; the 1984 Act, to commercial fishing and, qualifiedly, to community fishing (see s 17). 850 The question of interpretation raised by these schemes in their respective contexts was whether they disclosed a clear and plain intent to extinguish native title. Take, for example, the following notice made by legislative instrument under s 17 of the 1984 Act by the Commonwealth Minister, the effect of which was for the first time to require Islanders engaged in community fishing for commercial purposes, to licence the boat used for that purpose: PROHIBITIONS (GENERAL) 5. Pursuant to paragraph 16(1)(a) of the Act [which specified certain activities which could be prohibited] the taking, processing or carrying of fish by persons engaged in community fishing in the area of Australian jurisdiction is prohibited. EXEMPTIONS FROM PROHIBITIONS 6. Pursuant to paragraph 16(1A)(d) of the Act [which allowed for exemptions from a prohibition] a person holding a licence granted under subsections 19(2) or 19(3) of the Act that entitles that person to take, process or carry fish in the course of community fishing is exempt from the prohibitions in paragraph 5.

[245]

Did this notice extinguish the native title holders' right to fish for commercial purposes, but pave the way for them to acquire a statutory right to fish (ie a licence)? Or did it do no more than bring Islander fishing for commercial purposes into an aspect of the regulatory regime applied to commercial fishing - ie was the legislative intent it implemented simply to extend the control of commercial fishing (a possibility envisaged by s 17(1)) and not to define "underlying rights"?: R v Sparrow (1990) 70 DLR (4th) 385 at 400-401. To ask Brennan J's question in Mabo [No 2] (at 64): does the 1984 Act create a regime of control which is consistent with the continued enjoyment of native title? Or, as Yanner at [37]) queries: has regulation shaded into prohibition? 851 There are, in my view, clear "constructional choices" open here: Evans, at [68]. In these circumstances, and given (i) that the 1984 Act did not of its own force seek directly to deny Islander fishing rights for commercial purposes, hence its creation of the community fishing category (although the Act did envisage such fishing might later be subject to licensing requirements: s 17 and the Second Reading Speech below); and (ii) the s 8(a) objective of the Act to acknowledge and protect, as a management priority, the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing - I consider the choice that is more favourable to the retention of the right to fish for commercial purpose is to be preferred, there not being a clear and plain intention to extinguish it. I would add that, in the distinctive setting of this Act, and assuming native title rights subsisted in Torres Strait at the time of its enactment (see below), it would require particularly strong indications in the Act itself that existing rights were intended to be extinguished, given the markedly beneficial and protective intent of the PNG Treaty and of this Act. 852 The Minister's Second Reading Speech on the Bill for the Act is instructive in this regard (see Commonwealth, Parliamentary Debates, House of Representatives, 19 October 1983, 1902-1903). Having noted the Bill implemented the fisheries aspects of the PNG Treaty he commented: As a domestic Australian measure, beyond the requirements of the Treaty, the Bill makes special provision, to which I will refer later in more detail for commercial fishing operations by Australian traditional inhabitants. It proposes a minimum of control over such operations, subject only to the requirements of the Treaty and of effective management and conservation of the fish stocks. To stimulate commercial fishing enterprise among Australian traditional inhabitants, a special category of commercial fishing has been created exclusively for them. Only Australian traditional inhabitants or other people employed to provide them with technical advice or training will be allowed to engage in what are to be called the community fisheries. Community fishermen will not be required to hold master fishermen's licences. The Minister may declare that, for reasons of fishery management, community fishing boats are to be licensed in a particular fishery but unless he does so licences will not be required. … The provisions of the Bill relating to community fishing manifest the Government's intention to give effect to the spirit of Article 11 of the Treaty beyond the specific requirements of that Article. The concept of community fishing is an additional benefit for Australian traditional inhabitants, enabling them to undertake commercial fishing in the protected zone under conditions of considerable freedom from regulation. (Emphasis added.)

[246]

853 The s 17 declaration requiring for the first time that the boats of Islanders engaged in community fishing be licensed for commercial fishing did not, to use the words of Gummow J in Yanner (at [115]) "abrogate the native title right [to fish for commercial purposes]". It was, to use the Minister's words, a measure taken for reasons of fishery management. "[T]he regulation was consistent with the continued existence of that right": Yanner, ibid. 854 It is the case that, as a formal matter, the commercial fishing incident of the native title right I have found can only be enjoyed if and when a licence is granted under s 19(2) and such fishing would be unlawful without it: s 45(1)(b). However, when the licensing discretion is considered in the context of the s 8 "management priorities" to be followed "[i]n the administration of [the] Act", it can only be characterised as a regulatory control measure "consistent with the continued enjoyment of native title": Mabo [No 2], at 64. It does not create a new statutory fishing right. 855 I am quite conscious I have taken a view of the extinguishing effect of the licensing schemes in fisheries legislation which differs from that of judges whose views I greatly respect. I have, though, had the advantage of systematic and extensive submissions on the matter. It is not apparent that they did. 856 I have so far proceeded upon the assumption that when the Torres Strait Fisheries Acts were passed in the Commonwealth and the State, the "commercial purposes" incident of the native title right to access and to take had not been extinguished. I am satisfied that it had not. The licensing schemes relating to taking fish for sale were, from their inception clearly regulatory and control mechanisms. The requirement for a boat licence under the Queensland's 1877 Act was little if anything more than an authorisation for which a fee was payable in advance before a boat could be so used: see the Treasury Notice under that Act of 7 January 1878. That scheme, as I have indicated, clearly evolved in Queensland into one under which a true discretion was to be exercised. However it did not change what was its essential character. It was a regulatory measure. What changed was the increasing understanding of the marine environment and the growing sophistication of the controls being exercised particularly as conservation measures, as witness the recent focus on promoting "ecologically sustainable development": Fisheries Act 1994 (Qld) s 3 and s 3A. This said, if the Orders in Council that are in evidence are any guide, the continuing preoccupation with nets and netting was intense. 857 The public right to fish in territorial waters: see Ward v Cresswell (1741) Willes 265; 125 ER 1165; Halsbury's Laws of England, vol 14, "Fisheries" 1269 (1st ed, 1910) can be restricted by legislation, and by colonial legislation at that: see Sea and Submerged Lands Act Case at 468-469. I accept for present purposes that from 1877 onwards, Queensland fisheries legislation curtailed that right in relation to commercial fishing. What it did not do, is extinguish the "commercial fishing" incident of the native title right, save probably in those instances where grants were authorised to be, and were, made of particular types of exclusive lease or licence in particular areas: Fish and Oyster Act 1914, s 18; Oyster Act 1886. I have no evidence of such grants in Torres Strait. Judged against the "clear and plain" intention test, I am satisfied that such exclusive grants apart, the structure and character of the management and control scheme of Queensland's legislation was similar to that of the Torres Strait Fisheries Act, save that it did not have the same beneficial aspiration for the traditional inhabitants of the Strait. The Queensland legislation raised, and raises, the same constructional choices as the Torres Strait Fisheries Act does. That choice should be answered in the same way as for that Act. 858 I should interpolate that I do not consider that the provisions introduced into the State's legislation from 1927 which, variously, created specific purpose water reserves for Islanders, granted Islanders circumscribed exemptions from the provisions of Fisheries legislation, or promoted Islander "cottage-industry-type fishing", have any real bearing on the extinguishment question. These had their own distinct purposes and within their respective provinces were not inconsistent with the native title rights I have found. 859 I conclude that, while the complexity of the regulatory controls evolved over time, the State's measures as they related to commercial fishing were regulatory, not prohibitory, in character. They were not directed at the underlying rights of the native title holders who were required to comply with those controls if they were to enjoy their native title rights. They did not, through the licensing systems, create new statutory rights to fish. For extinguishment purposes, their regime of control was, and is, consistent with the continued enjoyment of native title. 860 I have, in effect, dealt already with the Commonwealth's Fisheries Act 1952 and the Pearl Fisheries Act 1952. They raise the same constructional choices as the Torres Strait Fisheries Act. Neither discloses the required intent to extinguish. The Continental Shelf Act 1968 only prohibited the use of a ship for searching for, or taking sedentary organisms for commercial purposes without a licence. As such it bound Torres Strait Islanders. I am satisfied it was a regulatory management measure. The Islanders could enjoy their native title right if they obtained a licence. The regulation, in other words, was not inconsistent with that right.

[257]

(a) The "fixtures" requirement 873 The first of the two definitions of "public work" require that the relevant building or other structure be a "fixture". Mr Hansen's evidence concerning the construction and dimensions of this group of AtoN clearly establishes that they have been firmly affixed to the reef, islet or rock to which each respectively has been attached. This is unsurprising given their purpose and inhospitable location. While their individual designs and methods of attachment to the earth's surface differ, the following are illustrative. The Sue Islet ("wet site") AtoN is a 7 metre high structure being for most of its length a concrete column which was fixed to its reef by means of three steel railway lines. These were driven into the reef at an angle and connected at the top by means of a steel ring to form a pyramid shape. Concrete was then poured over the steel lines to form the foundations. The Bramble Cay ("dry site") AtoN is fixed to its sand cay by means of four 20 ft long piles, each driven a minimum of 15 ft into the ground. A 17.5 ft square, 4 ft deep reinforced concrete foundation was poured around these piles and sunk 3 ft into the ground. Unsurprisingly, the Applicant accepts that "the degree of annexation is considerable". 874 Mr Hansen's evidence is that some of the navigational aids have been fixed since at least the 1940s. Some have been shifted to different locations with significant work involved in terms of engineering, planning and other requirements. He instanced the transfer of the tower at Dalrymple Islet to Arden Islet in 1982. In some other instances, the existing foundations of an AtoN have been left in place, and a new structure constructed directly on top of the old foundations. The Bet Reef navigational aid, although replaced and upgraded in about 1957, has remained in its present location for over 50 years, as has the upgraded Harvey Rocks navigational aid. 875 The Applicant, in my view remarkably, has called into question whether any of these structures constitute fixtures for the purposes of the NT Act definition of "public works". The starting point of its contention is the observation of Mansfield J in Alyawarr TJ at [307] that "there is nothing in the NT Act to indicate that the word 'fixture' is used other than in its normal common law sense": on fixtures, see generally Gray and Gray, 1.2.46-1.2.68 (6th ed, 2009), Butt, Land Law, Ch 3 (5th ed, 2010). For present purposes it is sufficient if I say of the common law that its concern is with when material objects, physically attached to land, are regarded as having in law become land by annexation to it: Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 ("Coroneo") at 712; Gray and Gray, at 1.2.47; National Australia Bank Ltd v Blacker (2000) 104 FCR 288 ("Blacker"); N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1979) 2 BPR 9241 ("N H Dunn"); see also Metal Manufactures Ltd v Federal Commissioner of Taxation (2000) 43 ATR 375 at [164]-[182]. 876 There are two strands to the Applicant's submission. The first is that this issue of annexation is relevant to certain relationships - landlord and tenant, vendor and purchaser, mortgagor and mortgagee, life tenants and remaindermen/reversioners and devisees and personal representatives. It is not to be assumed that criteria applied in those contexts will be applied to the seabed in a case such as this. Secondly, applying the common law criteria in any event would lead to the conclusion the AtoN were not fixtures, or else not ones owned by the Commonwealth. 877 Before expressing my own views on this there are two matters which I consider need to be emphasised. The first is that there is no live controversy between the Commonwealth and the State as to the ownership of the AtoN. They were built and are operated and maintained by the AMSA without any apparent concern as to their ownership. Nor has there been any detailed submissions made on the Coastal Waters (State Title) Act. I would note in passing though that, because no notice seems to have been given under s 5 of that Act, Sue Islet, Bet Reef and Dove Islet might well remain vested in the Commonwealth. Secondly, in considering whether the AtoN are "fixtures" for NT Act purposes, it needs to be emphasised that the concept of "fixtures" has to be considered in its statutory setting. Likewise the characteristics and purposes of AtoN and the AMSA's powers and obligations in relation to them, need to be considered in light of the provisions of the AMSA Act and the Lighthouses Act. 878 I have emphasised that there is no ownership issue between the Commonwealth, AMSA and the State in relation to the AtoN. Irrespective of whether the State is, or is not, the owner of some or all of them, such are the powers and obligations the AMSA has in relation to them under the Lighthouses Act: see s 7 and s 8; see also the s 19 offences; that such disputes as the law of fixtures is designed to resolve are unlikely to arise in relation to AtoN. And if, as is said in Gray and Gray (at 1.2.51), "the most significant difference between fixtures and chattels relates to the circumstances in which they can be removed from land", the AMSA has the statutory power to "remove any marine navigational aid" under its "control". Quite apart from any question of ownership, the evidence is clear that the 15 AtoN of present interest are under the AMSA's control. 879 I have also emphasised the matter of statutory settings for this reason. For NT Act purposes only a limited subset of fixtures - ie a building or other structure constructed or established by the Crown etc - can constitute a previous exclusive possession act which can extinguish native title on the "land or waters" on which the public work was or is situated: s 23C; and see the s 253 definition of "waters" which includes the "sea", the seabed and the foreshore. The statutory purpose of this limitation is obvious enough in the scheme of the Act. Of the past acts that were to be validated so resulting in the complete extinguishment of native title, the legislative purpose in ascribing this effect to the "fixtures" category of public works was, in my view, apparent enough. The construction, establishment or operation by or on behalf of the Crown, etc (ie for public purposes) of buildings or structures having the characteristics of a fixture were not to be impeded or inhibited by native title. Native title, in other words, was to be subordinated to the public good. A like purpose informed the "future act"/"facilities for services to the public" provisions of s 24KA of the Act, though without the drastic consequence of permanent extinguishment: see Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth), para 13.1. The term "fixture" in my view must be construed purposively paying due regard to the fact that the "structures" to which the s 253 definition refers are public ones; are likely to have some degree of permanence in situ; and serve public purposes. 880 The function of the AtoN was, manifestly, to promote a significant public purpose, ie that of safe passage through several of the sea-channels running in a north-easterly direction through the Strait. The tests used to determine whether they are or are not fixtures have to be applied, if they can at all, with this consideration in mind. In consequence some of the indicative criteria used in the cases which presuppose that an object is being affixed to land for private purposes will be inappropriate in this context: see eg Anthony v The Commonwealth (1973) 47 ALJR 83 at 88 (telegraph poles); as, for example, the question: "Has the object been affixed to land to improve the use and enjoyment of the land?" See generally Gray and Gray, 1.2.60. 881 It is well accepted that whether an annexation results in an object becoming a fixture depends on two circumstances, namely the degree of annexation and the object (or purpose) of the annexation: Holland v Hodgson (1872) LR7CP 328 at 334; Coroneo, at 712; but "neither is conclusive": N H Dunn, at 9246; and the proper conclusion will turn on the particular circumstances of each case: see Blacker at [9]-[16]. In consequence I share the questioning view expressed in Gray and Gray (at 1.2.52) that: In reality the differentiation of fixtures and chattels may now depend so heavily upon the circumstances of each individual case that relatively few guidelines remain in the modern law which are capable of unambiguous application to particular facts. Almost the only immutable principle is the idea that some degree of physical connection is necessary before a chattel can be said to have become part of the realty.

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882 This said, and despite the Applicant's quite lengthy submissions, I regard the present to be a plain case. The above two circumstances I have mentioned - the degree, and the object, of annexation - as applied to the AtoN, lead inevitably to the conclusion that the AtoN have the characteristics of fixtures. They were attached with quite some fixity to their respective rocks, reefs, etc. A consequence of this attachment was to cast on the Applicant the burden of proving that they were not fixtures: Blacker, at [17]. That degree of attachment obviously reflected an appreciation of the demands on the environment in which they were located. But it also indicated that they were to remain in situ for an indefinite or substantial period. This after all was to be their function. Their construction and operation manifested the objective intention that they were, into the future, to provide a service to, and to be an aid for, mariners negotiating the "dangers" (Flinders' term) of Torres Strait. Their reason for construction - and the legislative and Convention setting in which the attachments were made - confirm this. The array of offences designed to secure the functional integrity of the AtoN is a further manifestation of that intent. Likewise, it is reasonable to infer the likelihood that their respective locations will be marked on nautical charts and will be facilities relied upon by the relevant public. That they will be where they are attached and will be operational are, in my view, the common expectations and understanding of the function they serve. 883 Whosoever's property they were - the State's or the Commonwealth's - they possessed the characteristics of fixtures. This, in my view, was sufficient to satisfy this requirement of a "public work" for s 253 purposes. The AtoN were constructed by the Commonwealth or by a statutory authority of the Commonwealth and they were "fixtures". For the rest it matters not that it is AMSA that has wide powers of control over them including the power to remove them: cf the analogous contractual rights to remove fixtures: Gray and Gray, at 1.2.68; Butt, [3.13]. 884 Finally, it is of interest to note that those of the AtoN that were constructed prior to the AMSA Act could satisfy the requirement of being "land" for the purposes of s 31 of that Act by virtue of being "fixed structures": s 31(1).

[260]

886 Speaking of this section in Ward HC (at [155]), Gleeson CJ and Gaudron, Gummow and Hayne JJ commented that "[t]he phrases 'necessary for, or incidental to' plainly may provoke disputation as to their reach". Such is the case here. Because they raise separate factual issues, I will consider first the three "wet site" AtoN - Sue Islet, Bet Reef and Dove Islet - and then the four "dry site" structures. 887 The wet site AtoN. I have concluded that the AtoN were "public works". Their construction extinguished native title in relation to the land or waters on which they respectively are situated: s 23C(2). The outstanding issue is that created by s 251D in relation to "adjacent waters". 888 The area said to be the "adjacent waters" was determined by Mr Hansen. It has the same radius for all but one of the wet sites (pre- and post-December 1996). In his first affidavit Mr Hansen described his methodology and its explanation in the following manner when discussing Sue Islet: Currently, the Sue Islet AtoN is accessed for maintenance by launch or amphibious all terrain vehicle launched from the AMSA Emergency Towage Vessel (ETV) Pacific Responder. If construction work is needed to be undertaken to the AtoN today, a tug and crane barge and/or lifting and sling loading by helicopter would be used. Historically, the AtoN would have been constructed by a number of work boats deployed from a Commonwealth Lighthouse tender vessel. It is my opinion that works at that time would have been contained within 150m from the AtoN. The same construction and anchorage radius would be required today if construction work by a (typically used) 50x15m floating barge and crawler crane and would be anchoring at most 150m from the AtoN. Most of the construction of the AtoN would be done at sea from the anchored barge, including a deal of the concreting for the foundations. … The construction and anchorage radius reflects the maximum area needed from and around a fixed structure "wet site" for the AtoN to be constructed and installed safely in variable weather. It takes into account: 37.1 the requirements and specifications of the vessels and barges needed to construct and transport the AtoN to its fixed site; 37.2 the necessary anchorage points for the vessels; and 37.3 vagaries of highly variable weather conditions in the Torres Strait. From my professional experience, knowledge of the specifications and requirements of the vessels AMSA, and its predecessors used for the construction of fixed "wet sites", and safety requirements, I consider that this radius is needed for, and incidental to, the construction of any fixed structure "wet site" that AMSA and any of its predecessors would have constructed in the Torres Strait. This includes the Bet Reef AtoN and Dove Islet AtoN that I speak about below and all of the other fixed "wet sites", except Kirkcaldie Reef, which is dealt with separately below. … To access the AtoN, the ETV and its predecessor vessels anchor at a point as close to the AtoN as safely practical, taking into account wind, tide and available depth, and once anchored deploy a launch or amphibious vehicle to take workers to the AtoN to undertake the required maintenance. The decision about where to anchor is made by the ETV or other vessel's Master, who is responsible for ensuring the safety of the vessel and its associated equipment, personnel and the surrounding environment. Anchorage points are therefore variable. From my professional experience, I understand that it would be common for the vessels to anchor within the 150m construction and anchorage radius to access all fixed "wet sites" for maintenance necessary for the continued operation of the AtoN. Planned maintenance for the Sue Islet AtoN is carried out on a two yearly basis by the ETV to ensure that the AtoN can remain in operation. Outside of this schedule, ad hoc maintenance can be provided as required, subject to the ETV's commitments.

[261]

889 The Commonwealth frankly has acknowledged that it did not brief Mr Hansen about the s 253 definition of "public work" nor about the content of s 251D. It says he gave his evidence as a lay witness, not as an expert and says that the purpose of his evidence was to provide a factual basis for the Court to decide issues relating to "public works" and "adjacent waters". 890 For its part the Applicant has challenged Mr Hansen's methodology particularly in relation to factors which he took into account. As I will indicate in relation to his evidence on the dry sites, I accept the force of some of the criticisms made. I do not accept them in relation to his "150m radius" rule. I do not consider his reference to the "maximum area needed" to be an ambit, as distinct from a safety, claim. While his evidence takes account of the present, it seeks to justify it by reference to the past. I do not interpret his radius as being formulated - possibly impermissibly - so as to accommodate future contingencies that might require a greater area than had been required prior to 23 December 1996. In saying this I appreciate that he did say in cross-examination in reference to what counsel described as his request for "a 150m construction radius zone" that "I've calculated the area around the wet sites that I believe construction activities will happen in". I interpret this in the context of his evidence as referring to the work being undertaken periodically at such sites. 891 Though the adjacent area for the AtoN at Sue Islet, Bet Reef and Dove Islet are, in a sense, arbitrary, it needs to be acknowledged that it provides a reasonable basis for what would otherwise have been a correspondingly arbitrary process if an individualised measure was sought to be made. Accordingly, I accept the pragmatic response Mr Hansen has made in delineating adjacent waters in so difficult a medium as the waters of Torres Strait. In doing this I would emphasise, as the Commonwealth has in its submissions, that the radius selected is not overly generous when one has regard to the dimensions of the Emergency Towage Vessels that have been used in the Strait for the construction and maintenance of these AtoN. 892 The "dry sites". These are four in number. I will refer to them by their English language name as does the evidence about them. They are Arden Island (Garboi, in the Central Islands), Bramble Cay (Maizab Kaur), Dalrymple Islet (Damuth) and Harvey Rocks (Yurin Kula). Mr Hansen's evidence on the adjacent areas for these sites was the product of a meeting held on 26 November 2008 with four other persons all of whom were (3) or had been (1) AMSA officers. Two of them had had experience either with the particular sites in question or with the management of navigation services in the Strait. That meeting was recorded and transcribed. The meeting considered only the above four dry sites and resulted in the formulation of "operations footprints" for them. The transcript has provided much of the basis for the Applicant's challenge to the cogency of the Commonwealth's evidence. 893 Before turning to it, I should note at the outset that the four sites are, according to the Commonwealth, wholly or predominantly outside the claim area - the Applicant contends they all are above the high water mark - and the land areas to which three respectively are attached are the subject of consent land determinations. These are Arden Island: Warria v Queensland [2005] FCA 1117; Bramble Cay: Mye v Queensland [2004] FCA 1573; and Dalrymple Islet: Masig People v Queensland [2000] FCA 1067. In respect of all three determinations the Applicant contends the footprint claimed is inconsistent with those determinations. AMSA was a party to the Bramble Cay determination. 894 At the meeting Mr Hansen described the task at hand to be "to exactly find out a good, best estimate of these waters around the dry sites … the purpose of that is to potentially extinguish native title in the area we operate in". He went on: So we'll go through site by site and we'll do some brainstorming on what the maintenance activities, what the best judgment on navigating those areas are, and then come up with a reasonable plan of what our area around these sites we would be potentially be operating in, in the future, or operating in the past, of maintenance, installation and associated operational and navigation aids. (Emphasis added.) As the Applicant has pointed out quite fairly - I do not accept the Commonwealth's characterisation to the contrary - Mr Hansen took into account what he considered to be AMSA's future requirements. Mr Hansen made reference on occasion to future construction work as well as to events (some weather related) that may happen as distinct from events that actually had happened. Simply by way of illustration, the footprint for Arden Island covered the entire land area of the island, although the Commonwealth's sub-lease on it was for an area less than 400 sq m. I asked him whether he was making an "ambit claim". This led to the following passage of cross-examination: MR KEELY: Can I suggest to you that if you accept that the sublease area was regarded by AMSA as being a reasonable area in relation to its infrastructure at the time the sublease was entered into, the arrangements you have here is something altogether different and inconsistent with a 400 square metre sublease area? MR HANSEN: I don't agree with that. MR KEELY: You don't. You - as a matter of practice, and if you don't know the answer to this you just say you don't know, but you'd be looking for an area of beach to land on would you? Is that what you'd - - - MR HANSEN: For construction. If there's a large plant, yes. MR KEELY: And so is part of the reason you've drawn this particular area that you are anticipating some kind of future construction? MR HANSEN: No, I'm not anticipating it, but there's always that likelihood. MR KEELY: Right. MR HANSEN: As you can see over time that these structures have been upgraded from a small tower to a larger one to a different type of construction with - we do phase out certain types of maintenance structures which aren't easily maintained for more fibreglass and things like that.

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895 Whatever else might be said about how the meeting saw its function: cf Mr Hansen's "What is the largest area for anything"; it was not limited to ascertaining the area the use of which was necessary for, or incidental to the construction, establishment or operation of AtoN that commenced to be constructed prior to 23 December 1996. 896 My concern with the meeting evidence is enhanced for another reason. The qualifying terms in s 251D - "necessary for, or incidental to" - are limiting ones and for understandable reasons. Native title rights are being extinguished. Consistent with the solicitude the common law has shown for native title rights when the question is whether Parliament intended to extinguish them, I am satisfied in the present context that the same solicitude requires that the qualifying terms be read strictly, not expansively. The legislature did not use such terms as "desirable", "useful", "generous", etc. 897 It is clear that the participants in the meeting had no informed appreciation of s 251D's curtailment of the adjacent area that was relevant to this proceeding, or of the temporal limitation (pre-23 December 1996), which circumscribed "public works" extinguishment. I earlier referred to my "ambit claim" observation. The transcript of the 26 November 2008 has not dispelled my apprehension in this regard. The meeting was not focussed in a way that made its "operations footprints" reliable for present purposes. I am satisfied that the footprints reflected what was desirable or useful more so than what was necessary or incidental. 898 Such are my concerns with how the footprints for the four dry sites were formulated that I am not prepared to use it as a basis for making my own finding of the dimensions that should be given in each case to the "adjacent waters" of the four public works. That is a matter on which cogent, informed and focussed evidence needs to be given - and given in relation to extinguishment up to 23 December 1996. Thereafter, I should emphasise, any greater need for sea area to effect new constructions etc fell to be considered under the s 24NA "future act" regime. 899 I accept that because these four sites, though themselves probably outside the sea claim area have required the use of adjacent sea areas seaward of the mean high water mark for their construction, operation and maintenance, native title rights were extinguished in nearby sea areas of each site. I am in no position to determine those areas. The matter though is complicated by the consideration that the seaward-side extinguishment could well have been - and for at least three probably was - an extension of landside extinguishment. Yet, I am informed that in the three land consent determinations no account appears to have been taken of this. For this reason it would seem appropriate that, if the area of seaside extinguishment is to be examined in the future, so also should the landside question, the consent determinations notwithstanding. It may well be the case that the consent determinations extend to areas in which extinguishment has occurred and which ought not have been included in any claimant application: s 61A(2): cf NT Act, s 13(4) and (5). 900 In the event I will take a course similar to that taken by Moore J in King v Northern Territory of Australia [2007] FCA 1498 ("King v Northern Territory") and give the parties liberty to apply for the purpose of establishing the boundaries of the "adjacent waters" at each of the four dry site AtoN.

[263]

(v) NT Act: Post December 1996 901 For present purposes a quite different regime applies to the consequences for native title rights of acts done by AMSA in the construction, operation use, maintenance or repair of the AtoN built after December 1996 irrespective of whether the AtoN are wholly or partially on the seaward or landward side of the low water mark. For the purposes of Div 3 of Pt 2 of the NT Act such acts will be "future acts", which for present purposes are acts taking place on or after 1 January 1994. If AMSA's acts are on an "onshore place" (as defined in s 253) their consequences will be governed by s 24KA of the NT Act. If they are done at an "offshore place" their consequences will be governed by s 24NA of the Act. It is agreed by the parties that, of the seven AtoN in this group, six are in offshore places. There is disagreement as to precise location of the seventh (Kirkcaldie Reef), though the practical consequences for native title purposes are the same as for the other six. 902 Section 24KA, for present purposes, applies to a future act that relates, to any extent, to an onshore place and consists of the construction, operation, use, maintenance, or repair by the Crown or a statutory authority of the Crown of a "navigation marker or navigational facility" that is to be, or is, operated for the general public: see s 24KA(1)(b)(ii). There are several additional requirements which are not in issue and need not be mentioned here. 903 Section 24NA applies to any future act, other than by way of compulsory acquisition, to the extent that it relates to an offshore place. An "act" for present purposes is "a future act … in relation to waters" if it is an act that takes place on or after 1 January 1994 and that validly affects native title to any extent. Unlike s 24KA, s 24NA does not classify by type the kinds of governmental activity which can be an "act" for its purposes. This said, it clearly is the case for present purposes that an act in an offshore place involving the construction, operation, use, maintenance or repair on behalf of the Crown or a statutory authority of an AtoN would be a "future act" for s 24NA purposes, if done on or after 1 January 1994. 904 Future acts falling within s 24KA and s 24NA are deemed to be valid: s 24KA(3); s 24NA(2). What is called the "non-extinguishment principle" applies to such future acts: s 24KA(4) and s 24NA(4). That "principle" and its effect are described in s 238. Where a future act affects native title (on the meaning of "affects": see s 227) in relation to land or waters, but the principle applies, native title is not extinguished either wholly or in part: s 238(2). Rather the section effects a "temporary non-recognition of native title rights and interests": Lardil Peoples v Queensland (2001) 108 FCR 453at [46]; the extent and duration of which are prescribed in the following subsections of s 238: Rights and interests wholly ineffective (3) In such a case, if the act [affecting native title] is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act. Rights and interests partly ineffective (4) If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency. … Complete removal of act or its effects (6) If the act or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests again have full effect. Partial removal of act or its effects (7) If the act or its effects are later removed only to an extent, or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.

[265]

(a) Native title in the affected areas 906 The seven AtoN subject to the future act regime are Kirkcaldie Reef, Ackers Shoal, Caldbeck Reef, East Cay, Newman Reef, Smith Cay and Sugar Ran Reef. As to all but Kirkcaldie Reef, Mr Hansen applied his 150 m radius principle seemingly on the assumption that the area of waters within that radius was the affected area for the purposes of the non-extinguishment principle. For Kirkcaldie Reef he proposed a specially tailored area for reasons he gave which were distinctive to that site. His affidavit contained annexures showing vessels engaged in the construction of some of the AtoN, and of the AtoN after construction standing alone and as they would be seen by a passing vessel. He indicated that maintenance was undertaken at each of them on a two yearly basis, but with ad hoc work done as required. In relation to East Cay, which had its own attached helipad, the AtoN was accessed ordinarily by helicopter. 907 The Commonwealth's case for s 238 purposes is that the construction, establishment, operation etc of any of the post 1993 navigational aids in the claim area is, of necessity, wholly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests in the areas occupied by the navigational aids. Native title rights, it is said cannot be exercised in a space which is physically occupied by a navigation aid which is a "public work", nor in the adjacent area required for its construction, maintenance etc on an ongoing basis. 908 The Applicant's response to this is that, if it is the Commonwealth's contention that for the full life of the AtoN, native title rights cannot be exercised in any place which was required for its construction or which has been required for the operation, use, maintenance or repair of the AtoN, the submission is incorrect. The construction phase of each of these AtoN is completed. The act of construction has wholly ceased to operate and its effects have been wholly removed, save for the continuing presence of the AtoN. The situation is likewise in relation to any areas that in the past have been required for the maintenance or repair of the AtoN. 909 My own view, more closely accords with the Applicant's. Section 238 as I construe it ordains in relation to a future act being performed or undertaken in waters adjacent to an AtoN that, to the extent that, and for so long as, it is necessary to use those adjacent waters to perform the particular act in question, to that extent and for that time, native title rights and interests are not able to be enjoyed or exercised. What this means, for present purposes, is that the native title rights cannot be exercised in the area taken up by the footprint and vertical mass in the water of the AtoN itself for as long as it is in situ; they cannot be exercised in the area necessarily required for the construction of the AtoN, but can be after the construction area has been cleared; they will not be able to be used when a vessel is anchored adjacent to the site as part of the two year maintenance/repair program or ad hoc, but can be once it sails on completion of its task. Section 238 has both a spatial and a temporal dimension. The one circumstance in which difficulties may be created, but which is not this case, is when a particular act is done with such frequency that it reasonably can be said to be an ongoing act for the purposes of s 238(3) and (4) and not, as with the maintenance programme here, a sequence of individual acts the effects of which wholly cease to operate, when the performance of each such act comes to an end. 910 It would be quite inconsistent with the intendment of s 238, as I understand it, to require that native title rights, for example, could not be exercised in an area of 150 m radius around the East Cay AtoN (which is accessed for maintenance by helicopter), because of the contingency that a service vessel may one day be used for the purpose; or that, in relation to all of the AtoN, Mr Hansen's areas for the operational footprints are to be sterilized indefinitely for native title purposes because that area is visited for maintenance purposes every two years. To be driven to such a conclusion would require a quite unreasonable construction to be given to s 238. It would convert a transitory inconsistency into an indefinite one. 911 A consequence of this view is that the area in which there will be temporary non-recognition of native title is the area actually required and used when the particular future act that is performed. Given the nature of the marine environment of Torres Strait, this is likely to mean for some AtoN that a service vessel might use a quite different place for anchorage from visit to visit with the consequence that the temporary non-recognition will relate to a different part of the adjacent waters visit by visit. Or the vessel might almost invariably use the same anchorage place so that the Mr Hansen's claimed "operational footprint" would prove largely unnecessary. 912 Unlike public works extinguishment, a more sensitively calibrated approach to affection of native title can - and in my view should - be taken to "future acts" for s 24NA purposes.

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(iii) Consideration 926 I should indicate at the outset that TSRA' opinion on authorisation expressed in its s 203BE certification has no bearing upon the present matter notwithstanding that that certification may serve other purposes in the scheme of the NT Act: see eg s 190C(4) and Northern Territory v Doepel (2003) 133 FCR 112 esp at [78]-[80]. The application was either authorised in accordance with the Act, or it was not. The TSRA's opinion on that matter is of no consequence in this proceeding. 927 If I had rejected the Applicant's one society claim the issues of authorisation that would have arisen would have been acute ones, especially in consequence of the concessions made by the State and the Commonwealth. In light of my findings on society and on native title, the authorisation question is a somewhat barren one. For s 61 purposes the members of the native title claim group are, in aggregate, the actual holders of the native title claimed in the Part A proceedings. Those persons are also, in aggregate, the holders of the native title in the islands, islets and rocks of Torres Strait that have been the subject of land determinations. It clearly is in the interests of justice that a possible defect in authorisation should not preclude recognition being given to such rights and interests as the claimant group members have in the waters of Torres Strait. 928 What the authorisation issue has exposed even on my findings is the inadequacy in the Islanders' traditional decision-making processes when what is sought is collaborative activity on an inter-island basis. The Islander evidence has revealed ad hoc instances of collaborative decision-making, usually between islands of the same cluster group. Kris Billy, for example, spoke of all of the Central Islands coming together to talk about a communication tower proposed to be built on Aureed. And George Mye spoke of collaboration, with each island having separate representation during "the great maritime strike" of the 1930's. But what occurred here was the adoption of a process, not of island by island representation, but of representation on behalf of cluster groups. 929 The process adopted doubtless drew upon traditional practices. The representatives, for example, were senior elders. Nonetheless, I cannot on the evidence say that the decision-making process was a traditional one or that it was an appropriate adaptation of a traditional process to meet a novel situation. It reflected no more than quite reasonable improvisation in the circumstances. Equally, I cannot say upon the evidence that, for s 251B(b) purposes, it was a process of decision-making agreed to, and adopted by, the persons in the native title claim group. At best one could infer a significant level of subsequent acquiescence in the process adopted. This said, it is difficult to envisage how a s 251B(b) process could be adopted effectively given the Islanders' diaspora. I need hardly repeat the 2006 census figures quoted early in these reasons: see "The People", above. 930 I am satisfied that while Mr Mye, Mr Akiba and the others were selected as representatives of their respective cluster group, the purpose of their selection was to prosecute the claim of all of the holders of native title in the claim area. It has been prosecuted to all but finality and successfully so. Justice would be denied if this matter did not proceed to a determination. 931 I am satisfied that considerable delay, cost and confusion which would bring no credit upon the legal system, would ensue if I were to require strict compliance at this late stage with the authorisation requirement of s 61 of the Act. Indeed I am not at all sanguine that strict compliance could be secured in any event for logistical reasons. 932 What should be said is that these proceedings have been longstanding. The trial has been conducted in tandem with a considerable number of land determination applications almost all of which have been prosecuted to finality (usually in a consent determination). A significant part of the trial was conducted in Torres Strait and the Court's presence there was widely publicised. Many elders gave evidence. Finally, the claim group is composed, in aggregate, of the same Islanders who were successful claimants in the land determinations. 933 In these circumstances I will order that the present application continue on foot until it is determined.

[305]

(ii) Pende Gamogab and Peter Niwia Sawabarri 962 Though they represent different interests, these respondents can be dealt with together. Their Points of Response to the Applicant's Points of Claim are substantially similar in character. The traditional rights and interests they respectively assert in the claim area were, with several exceptions, identical and were, save for their disclaimer of exclusivity, broadly similar to those claimed by the Applicant. They shared common legal representation during parts of the trial. I would add that many of the rights they claimed were objectionable and would not be recognised by the common law for the same reasons that some number of the Applicant's claimed rights, on further reflection, were later abandoned. 963 On 27 October 2008 the Applicant filed its "Submission and Restatement of Applicant's Position Regarding Non-Exclusivity and the 'PNG Parties'". It clearly and unequivocally indicated that the Applicant was making no claim for any native title right that in its nature or extent would authorise the control of access by, or the conduct of, any person. By that time I had indicated equally clearly that I would not contemplate making any exclusive determination in the Applicant's favour. The prospect of an order under s 84(8) had been raised. On 28 October 2008 senior counsel for Mr Gamogab and Mr Sawabarri indicated to the Court that their case was merely to ensure that I did not make such a positive exclusive determination. It was indicated as well that neither respondent sought the recording of their "interest" as an "other interest" for s 225 purposes. 964 On 3 November 2008 I heard argument on whether, in light of s 84(9)(b), I should make an order under s 84(8). As I indicated at the time, given the character of the rights now claimed by the Applicant, I could not envisage how the interests of Mr Gamogab and Mr Sawabarri might be affected "in a demonstrable way": Arakwal, at 7; by any determination I might make in relation to the Applicant's claim. Nonetheless, it was requested that I permit the two respondents both to give evidence - a request supported by the State - and to make submissions on the final form of orders. 965 As I considered it might be useful in any event to have PNG evidence before the Court, I agreed that evidence could be given by each respondent and one other respectively; that the respondents could make submissions on the final form of orders, but would not otherwise participate in the proceedings; and that I would make my ruling on s 84(8) when giving judgment in this matter. 966 I was then, and remain, satisfied that the two respondents no longer had interests that might be affected by a determination in the proceedings. Counsel could not demonstrate satisfactorily why the contrary was the case. Accordingly I now order that both Mr Gamogab and Mr Sawabarri cease to be parties to the proceeding. 967 I should add the following. Though Mr Gamogab, a Mr Kazipam, Mr Sawabarri and a Mr Buie all gave evidence, I consider it unnecessary to make reference to any of it in the circumstances. I would emphasise that I express no opinion on the question whether the persons represented by Mr Gamogab and Mr Sawabarri do have rights and interests as traditional inhabitants in the claim area. I would also indicate that the evidence given provides little by way of assistance in resolving issues that have arisen in this proceeding.

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AUSA got married to a descendent (sic) of Chief Kebusa, who was also a warrior from the tribe of Yam Island. Mr Songoro's oral evidence on the latter assertion is equivocal, the apparent claim now being that his mother (one of Ausa's three wives) or maybe his mother's mother, was related to Kebisu. 974 By the time Mr Songoro gave evidence in March 2009 reliance upon ancestor Sam had been abandoned. Descent was claimed only from ancestor Ausa. In his affidavit of 2 March 2009 no descent was claimed from "Chief Kebusa". 975 It is the case that two of the ancestors listed in Attachment A to the Applicant's Form 1, are named Ausa and Sam. Ausa is listed as an ancestor from Yam Island; Sam, from Saibai. The Songoros initially claimed direct descent from both of these, though only recently, as I have noted, from Ausa alone. 976 Mr Songoro's evidence was that his father was Ausa Songoro. Ausa had a brother, Sam Songoro. The father of these brothers was man called Songoro Ali, who originally came from Saudi Arabia and arrived in the Torres Strait in about 1893. He is said to have spent most of his time in the Torres Strait, while working between Torres Strait and Daru. However, after working in Torres Strait, he was given a job looking after a coconut plantation at Mibu Island in the Fly River estuary. This is how he met Gauno, whom he married. She was a native PNG woman from a place called Iasa on Kiwai Island, also in the Fly River estuary. Songoro Ali and Gauno had two sons, Sam (born in 1917) and Ausa (born in 1920). Ausa is Mr Songoro's father. Songoro Ali died on Mibu Island. 977 Mr Songoro's father, Ausa, is believed to have been born on Mibu Island. He grew up there and worked most of his early days in Torres Strait. He died in about 1982 in Daru. Ausa's brother, Sam, may have been born in Daru and, like his brother, spent substantial time fishing in Torres Strait. 978 Mr Songoro's mother, Kemeru, is believed to have been born in Daru and to have spent most of her lifetime there. She was born in about 1923 and died in the 1970s. Mr Songoro's mother's father was a man called Ai'ia. However, Mr Songoro had 'no idea' where he came from. Nor did he know the name of his mother's mother or where she came from. 979 Mr Songoro's father, Ausa, had two other wives: the first was a woman from Daru whose name was not known by Mr Songoro; and the second was a woman from Central Province called Numa. Each of these women had children with Ausa. Mr Songoro was born in Daru on 2 January 1949. 980 When one compares the unchallenged genealogies of the Form 1 ancestors Ausa and Sam with the Songoro Family Genealogy, there is no common ground between them. Thus, the Ausa shown in Applicant's genealogies is said to have been born about 1840, whereas Mr Songoro's father was born in about 1920. The former had only one child, Baluz, whereas the latter had seven children, none of whom is named Baluz. Similarly, the Sam shown in the Applicant's genealogies is said to have been born in about 1885, whereas Mr Songoro's father's brother was born in about 1917. The former had four children, Abari, Gasu, Methuselah and Banu, whereas the latter had eight children none of whom is said to have any of these names. Mr Songoro ultimately accepted that the Ausa of the Applicant's genealogies was not his father and also that he was not related to the ancestor Sam of the genealogies. The Songoro Family's Ausa and Sam were brothers. It is extremely unlikely that the Ausa and Sam shown in the Applicant's genealogies could have been brothers, given that they were born some 45 years apart and came from different islands. 981 The only Islander witness asked about the connections of the Songoro family to Iama was Lizzie Lui. She gave evidence that Ben Songoro (a son of Mr Songoro's uncle, Sam Songoro) had been married to an Islander from Iama called Elizabeth, who was one of Lizzie's cousins, although they are now divorced; Michael Songoro (another son of Mr Songoro's uncle, Sam Songoro) married an Islander from Iama and they were now living in Rockhampton; and she had not heard of any earlier generations of the Songoro family having a connection to or a connection from Iama. 982 King Kebisu was the great grandfather of Mareko Kebisu. Mr Songoro did not know Mareko, even though he is a very senior member of the Kebisu family. It was not suggested to Mareko in his evidence that his family was somehow related to the Songoro family. 983 It may possibly be the case that there was a relationship of some kind between Mr Songoro's mother, or her mother and the Kebisu family. It is not possible on the evidence to discern its character. At best it is a matter for speculation. 984 I am not satisfied that any connection with an ancestor of Iama such as would permit descent to be established, has been made out. It is, in my view, difficult to resist the conclusion that, the claimed descent from Sam and Ausa being without foundation, the now asserted Kebisu connection is simply an opportunistic attempt to justify the Family's inclusion in the claim group. 985 There is no basis for concluding that the Songoro Family has any customary rights and interests on the claim area which were acquired by descent from a Torres Strait Islander. I will make a declaration to this effect.

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The Murphy Treaty Report 988 The alleged significance of this Report arises in consequence of submissions made by the Commonwealth. Before dealing with the Report and the use the Commonwealth seeks to make of it, I will outline the Commonwealth's submission the foci of which are on traditional relationships between PNG people and Torres Strait island communities and on the traditional exercise of rights by PNG people in parts of the claim area. 989 Mr Murphy gave evidence in this proceeding seeking to establish a regional Torres Strait society that extended beyond the boundaries of the claim area and included coastal parts of PNG and the top of Cape York. His evidence (including his Treaty Report), the Commonwealth contends, provides numerous examples of PNG connections to, involvement with, and use of the waters of, Torres Strait. Further, elders and community leaders at Saibai, Boigu and Dauan acknowledged to Mr Murphy the existence of traditional relationships with Trans-Fly and Kiwai peoples of PNG as did the then current Iama Island Council Chair. The effect of the evidence, the Commonwealth contends, is that the Applicant can have no claim, in fact, to exclusive possession of the sea claim area given the evidence of historic PNG use of the claim area. 990 In 2000, by an exchange of notes between the Governments of Australia and PNG it was agreed that the inhabitants of 13 specified PNG villages were the "traditional inhabitants" from PNG for the purposes of the PNG Treaty. Prior to this there was no officially enforced definition. People who were thus excluded from the "traditional inhabitant" category but who believed they came within it for the purposes of the Treaty requested their status be reviewed. Mr Murphy was commissioned in 2004 to provide a report to assist in that review. The "Aspirant Villages" as Mr Murphy called them, were scattered over "a vast region in the southern coastal region of Western Province": Treaty Report, 4. 991 The local context in which the Treaty Report was prepared was described by Mr Murphy in the following terms (p 5-6): There are intractable disputes over land ownership between certain coastal Kiwai groups and the Trans Fly people who inhabit the areas adjacent to and/or inland from where the Coastal Kiwai villages are currently situated. According to the accounts of the Trans Fly groups, the Coastal Kiwai groups migrated along the coast from Kiwai Island immediately prior to and during the early colonial era, displacing the original inhabitants who were forced inland, but who in their own minds remain the rightful customary owners of the land now occupied by the migrants. According to the stories of the Coastal Kiwai groups, they migrated from a number of places, including many from the Torres Strait islands, to establish the villages that they now occupy. They assert that this land was unoccupied when their ancestors established villages there, that this occurred long before the arrival of the first missionaries and establishment of colonial government, and that they themselves are the rightful customary owners of the land where their villages are located. Both parties invoke these disputed histories in their assertions about how they consider the term traditional inhabitant ought to be interpreted. According to the Trans Fly groups, their relationships with Torres Strait date to a time prior to the arrival on the coast of the Coastal Kiwai but they have since been displaced from their own land and prevented from effectively maintaining their relationships with Torres Strait by the immigrants. The Coastal Kiwai on the other hand insist that the Trans Fly groups are from a long way inland, and have moved toward the coast in the relatively recent past. They argue that the Trans Fly people had no relationship to Torres Strait until they were assisted by the Kiwai to travel to the Torres Strait islands during the colonial era. The local politics of customary marine tenure in the coastal area adjacent to the Papua New Guinea mainland, and a considerable but indeterminate distance into Australian territorial waters, is ultimately caught up in these broader disputes. What is for some purposes broken down into disputes about land ownership, disputes about the definition of traditional inhabitant under the Torres Strait Treaty, and disputes about customary marine tenure can alternatively be seen as aspects of the ongoing competition for scarce resources which takes place within the parameters of a discourse of customary ownership common throughout Papua New Guinea. It is not Torres Strait Islanders, nor the Australian government, nor indeed the government of Papua New Guinea that the aspirant villages believe to be responsible for their exclusion from the Treaty. It is representatives of the coastal Kiwai people, with whom the Trans-Fly groups have manifold disputes, that they believe to have been instrumental in their exclusion. The Aspirant villages, particularly those most closely engaged in disputes with the Coastal Kiwai villages, are determined to achieve a revision of their status as traditional inhabitants, and have expressed intentions to pursue whatever means necessary to do this. … The coastal Kiwai people are determined to do all they can to prevent any other villages from being allowed to enjoy the same privileged status that they enjoy as Treaty Villages.

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Attachment 1 TABLE OF LANGUAGE AND ENGLISH NAMES OF ISLANDS, ISLETS, CAYS AND REEFS IN THE TORRES STRAIT Indigenous language name English name Atub Dugong Island Awial Kawa Kiss Island/Kerr Islet Badu Mulgrave Island Bak Bourke Island Bara Bet Islet Beka Sandbank Caldbeck Reef Bini Vini Islet Boigu Talbot Islands Bubui Lowry Islet Buru Turnagain Island Damuth Dalrymple Island Dauan Mount Cornwell Island Edgor Nepean Islet Erub Darnley Island Garboi Arden Islet Garboi Anchor Cay Gebar Two Brothers Island Giralag Friday Island Goerarari Orman Reefs Guchen Sandbank Pearce Cay Guiya Poll Island Iama Yam Island Iem North Possession Island Igab Marsden Island Kerged Don Cay Keriri Hammond Island Koey Maza Dollar Reef Koey Wapa Warrior Reef Kulbi Portlock Island Mabuiag Jervis Island Maizab Kaur Bramble Cay Masig Yorke Island Mauar Rennel Island Maurura Wednesday Island Maza Guiya Kircaldie Reefs Mer Murray Island Merad Underdown Islet Misnare East Cay Mokanab Travers Island Mua Moa Island Mukar Cap Islet Muralag Prince of Wales Island Murbayl Channel Island Muri Adolphus Island Naghir Mount Ernest Island Nelgi Twin Island Ngurapai Horn Island Ob Tobin Cay Op Nor / Gara Gara Barria Great Barrier Reef Paililag Goods Island Polin Hastings Reef Poruma Coconut Island Rebes Black Rocks Rug Smith Cay Saibai Sarbi Bond Island Smol Muri Little Adolphus Island Tekay Watson Cay Tidiu Dungeness Reef Tim Sandbank Newman Reef Tudu Warrior Island Tuin Barney Island Turu Cay Norwest Sandbank Ugain Ninepin Rock Ugar Stephen Island Ullu Saddle Island Ului West Island Umagar / Pentrick Keats Island Uttu Dove Islet Waiben Thursday Island Waral Hawkesbury Island Warraber Sue Island Warul Kawa Deliverance Island Yarpar Roberts Island Yauk Layoak Island Zagarsup Tobin Island Zapker Campbell Island Zuizin / Ap Halfway Island

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Attachment 4 Haddon's account of the western island-PNG canoe trade (see Haddon, The ethnography of the Western Tribe of Torres Strait, 1890, p 340-342) The large canoes in the Straits all come from Daudai [New Guinea], about the neighbourhood of the Fly River. I was told the logs were cut and hollowed out at Wabad (Wabuda?) and fitted with a single small outrigger. Thence they passed through the hands of the Kiwai and Mowat people on the mainland of New Guinea and across to the island of Saibai. Here they are re-rigged with two outriggers, and a gunwale is fitted and the canoe decorated with a figure-head, bow-ornament, and otherwise ornamented with feathers and shells. From Saibai the canoes found their way to the other Islands of the western division of the Straits. If a Muralug man wanted a canoe he would communicate with a friend at Moa who would speak to a friend of his at Badu; possibly the Muralug man might himself go to Badu. The Badu man would cross to Mabuiag to make arrangements and a Mabuiag man would proceed to Saibai. If there was not a canoe available at the latter place, word would be sent on, along the coast, that a canoe was to be cut out and sent down. The canoe would then retrace the course of the verbal order, and ultimately find its way to Muralug. If a man in any of the intermediate places had a new canoe to spare, he would sell it to the friend of the ultimate purchaser. If a canoe had to be made to order it would be a very long time before it arrived, as the message itself would only be transmitted when there happened to be a canoe going to the next stage, and the same applied to the delivery of the canoe. Another channel of the canoe trade was from Mowat direct to Tudu, and from thence to the central islands, and viâ Nagir to Muralug. Payment was usually made annually until the canoe got a little broken; generally three instalments were paid. When a piece came off the canoe it was forwarded together with the final payment as a proof of the statement as to the condition of the canoe. The annual payment was, say three dibi-dibi, or goods of about equal value. Should a man be "hard up" when the annual payment became due, a certain amount of credit would be given, if the man honestly paid all he could afford. If the man could afford it he might make a single and final payment, say of a dugong harpoon (wap) or shell armlet (waiwi). The intermediaries are paid for their service by "charging on", the amount depending on individual cupidity, or they might be recompensed for their trouble by presents from the purchaser. There appear to be considerable opportunities for cheating, but this is guarded against by the vigilance of the intermediary traders, who are themselves looked after by the Daudai men. If cheating occurred, the supply of canoes would cease, thus putting a stop to all commercial and fishing operations. In addition, there would be war, and the canoe confiscated. Haddon, after his second expedition to Torres Strait in 1898, described the pattern of maritime trade in the eastern islands, revealing an even more ritualised process based on unbending long term relationships between individuals and clans, with trading rights handed down from father to son (Reports, 1935, vol 1, pp 182-183). Attachment 6 PART A AND PART B SEA CLAIM AREAS Attachment 8 THE EXCLUSIVE AND SHARED MARINE ESTATES The following does not purport to be a prescriptive account of the island communities' own and shared estates. As the Islanders have emphasised, their estates are not divided by lines on water. As I have also indicated, the language used by the Islanders to describe their practices and activities in relation to waters - "used", "shared", "worked around" etc - either can have varying meanings (as I have indicated with "sharing/shared") which can be context dependent, or can be quite unclear in what is signified in a given instance (eg by the word "Kulkulgal"). Necessarily what I have to say here will be inexact - but there is inexactness and inconsistency in the evidence. Nonetheless I undertake this task for these reasons. In Bodney FC (at [178]) the Full Court, in speaking of "connection" in a context which has some parallels with the present matter commented: It is not uncommon for the traditional laws and customs of a community to connect that community to a claim area by connecting groups within the community both to each other (often in complex ways) and, respectively and immediately, to their own particular portions of the claim area (in the latter case by granting rights to, and imposing responsibilities on, each such group in respect of its portion). In such cases, it is entirely appropriate that the connection inquiry consider not merely evidence of the general connection of the claimant community to the claim area, but also the evidence of the particular connection of the particular groups and their members to their respective portions of the claim area: see Neowarra … at [353]-[356]. The latter evidence, we would suggest, will ordinarily be necessary in some degree if the claimants' assertion of connection is to be sufficiently manifest over the claim area as a whole - the more so, in communal claims, if rights and interests are held differentially across the community - though there can be cases where, because of long standing occupancy of the claim area, the s 223(1)(b) inquiry (as distinct from that under s 223(1)(a)) will not loom large: cf Griffiths v Northern Territory of Australia (2006) 165 FCR 300 at [561]-[562]. In this proceeding, unlike in Bodney FC, the Islander society under whose laws and customs native title rights and interests are possessed, does not claim to be a single traditional rights holding group. Rather, the Islanders are connected by membership of their Islander group to particular parts of the claim area. For this reason, in my view, the evidence of particular connection to each constituent part of the claim area and of its continuing reality is of no little importance, if s 223(1)(b) "connection" is to be satisfied for the claim area in aggregate. Because the State has called into question connection in relation to the distant areas, I have considered it appropriate to satisfy myself of the reality of connection across the claim area. I have already indicated in dealing with problems at the extremities of the claim that there are areas in which I am not so satisfied. What follows is a rough outline of what emerges from the Islander evidence as the owned and the shared territories of the various island communities. It is presented in a form which suggests a precision which is manifestly not there. My purpose, though, is not to delineate boundaries as such but, as I noted above, to satisfy myself as to the reality of the respective communities' connection to their respective areas within the claim area. My "boundaries" embody my appreciation of the evidence and what can be taken from it. I have for the most part relied again upon those who have had significant marine experience in their particular regional areas, for example, Kris Billy, Kapua Gutchen and Bully Saylor in the Central and Eastern Island regions and Walter Nona in the Western Islands. The other matter that emerges from this exercise is the significant dimensions of shared areas in parts of the Strait apart altogether from those areas of sharing where waters of different communities meet. (i) Mer I have indicated earlier the eastern and southern perimeters of Mer's exclusive estate. Disregarding Misnare and Garboi, the western extremity of the northern boundary of its exclusive estate is to the north of Asmet Kep (Kapua Gutchen: "Asmet Kep … and all the reefs running from Kerged in a south-west direction towards Mer are part of the Meriam area"). It runs in a south-westerly direction to the east of Gaidan and Dautpul Nor (both of which are part of the Erub area) through Au Meri (which is regarded as the "traditional boundary between Mer and Erub) then turning in a southerly direction passing to the east of Kebi Girwai (which is in Erub's area) then south beside Irgogob (Irgogob, Au Pizir, Kebi Pizir, Beizam, Au Derder constitute the "fishing area of all eastern islands" but which Masig also uses "on a regular basis": Kapua Gutchen; then south-easterly to the western side of Bur and then east to Eur (which is "Mer's: reef": Atai Wailu). The areas within the perimeter described appear on the evidence to constitute the exclusive estate of Mer. There is, though, a quite large area which Mer shares variously with Erub and with various of the Central islands. That area begins to the east of Kebi Girwai (which is in Erub's area) and goes south-west below Domingo Reef (also Erub), to the north of Gau Gau (George Mye: an area "commonly used by York, Darnley and Murray") and Nepkem Kep before turning south to Megi Waireg, then south from Kebi Waireg to the northern boundary of the Part B claim (this line would appear to be where Central Island and Eastern Island waters merge), then into the Part B claim area emerging at a point east of Sunday Reef and then north to Seven Reefs and then north-east to the western side of Bur. (ii) Erub The northern and eastern areas of Erub's exclusive marine estatefor NT Act purposes begin at that area on the Seabed Jurisdiction Line where the waters of Erub and Mer merge (which is to the north of Asmet Kep). The Erub and Mer waters run together in a south-westerly directionto an area to the north of Seriam Gau Gau before turning north-west to Benfadom where it merges and is shared with Masig's estate around Benfadom. It then runs north-west merging with Masig up to Kos which provides the three way boundary between Ugar, Erub and Masig. From Kos, Erub's estate then runs in a north-easterly direction around the western side of Maz Maz and Edgor and then in a north-easterly direction in the direction of Maizab Kaur until it reaches the Seabed Jurisdiction Line. Erub shares the same shared area as I have described for Mer. It also shares an area with Masig which is bounded by Benfadom, Nepkem Kep and Seriam Gau Gau. (iii) Ugar I have earlier described the northern boundary of Ugar's exclusive marine estate as it goes west of Ugar. That part which can be acknowledged for NT Act purposes follows the Seabed Jurisdiction Line into the area of Guchen Sandbank. From Gutchen Sandbank, Ugar's marine estate runs south-east bordering Masig's estate to Kos. It then borders Erub's estate north to the Seabed Jurisdiction Line. (iv) Masig The north-western reach of Masig's exclusive estate appears to begin on the eastern side of Moon Passage which divides Warrior Reef. It then runs in a south-westerly direction to the east of the waters of Warrior Reef until it reaches Tidiu (Dungeness Reef). Tidiu, I note in passing, is shared by Poruma, Warraber and Iama. From the top of Tidiu, the boundary estate runs east to the north of Garboi (which belongs to Poruma and Masig), south-east to Aureed then to Mimi and Small Mimi (which belong to Masig) before meeting up with the shared area with Erub at Nepkem Kep. From Nepkem Kep, the exclusive area turns in a northerly direction to the west of Benfadom and then follows the estates of Erub and then Ugar to just south of Guchen Sandbank before turning west to Moon Passage. The dimensions of Masig's shared area with the Eastern Islands is very difficult to delineate on the evidence. This is largely for the reason I foreshadowed much earlier in these reasons when talking about shared areas. It relates to the infelicity in language relating to the use of areas by some of the witnesses. There is, for example, evidence of Masig using areas as far to the south-east of it as Au San, Kebi San and Toleh Toleh Nor which are very much part of the Murray line. These, Kapua Gutchen seems to suggest, were an Eastern Island preserve ("Eastern Islands boats normally worked around what is called the Murray line"). I am not able to satisfy myself that areas such as these were shared in the sense they had shared occupation by Masig and Eastern Islanders. While I do not rely simply on the names of the three reef areas to which I have referred, it is interesting that all are in the Meriam language. In attributing a range to Masig's shared areas with the Eastern Islands, I may in fact be excluding what traditionally was shared under the Islander's system of laws and customs. Nonetheless, given the very limited assistance the Applicant has provided in relation to the areas south of Erub, I am compelled to take a quite conservative approach. Accordingly I would regard Masig's shared area with the Eastern Islands as beginning at Benfadom, running south-easterly through Gau Gau Kes (which is "commonly used" by Yorke, Darnley, Murray and Dauar), then south-westerly through Bazpir Kes and Der Der Kes to the south of Nepkem and then south to Kebi Waireg below which it seems the Central Island and Eastern Island waters merge along the line running south to the boundary of the Part B claim area. I will refer below to the area Masig shares with the other Central Islands. (v) Poruma The western boundary of Poruma's exclusive marine estate commences to its north in the waters around Tidiu and to the south at the eastern end of Sassie. The boundary then goes in a south-easterly direction around Gagainab (which belongs to Poruma) before swinging in a north-easterly direction around Beka Sanbaink (notwithstanding the Commonwealth's contrary concession to Warraber), around Aureed (the waters around which are shared by Masig, Warraber and Poruma), before heading in a north-westerly direction through an area where its waters merge with those of Masig until it reaches Garboi before continuing to the top end of Tidiu. I will refer below generally to Poruma's shared area with other Central Islands but note here that Masig has a shared area with Poruma, being the waters around and between Garboi and Aureed. (vi) Iama The north-eastern boundary of Iama's exclusive area begins on the eastern side of Warrior Reef at Moon Passage and runs southward through the nearby waters of Warrior Reef and then Tidiu before going south-west around Sassie, the waters of which are shared with both Poruma and Warraber before heading due west to Tekay which in turn may be shared with Mua (Mareko Kebisu's evidence is that Tekay is part of the area that belongs to Iama; Alick Tipoti's, that it is in the area of Mabuiag, Mua and Badu; northward across the Seabed Jurisdiction Line to a point midway between Buru and Iki (Iki, Polin and Ngazi are all part of the area that belongs to Iama: Mareko Kebisu) then turning due east to the boundary of the Top Hat where it would there pass into PNG waters and be of no present concern for NT Act purposes. (vii) Warraber There is a large area in Warraber's exclusive marine estate about which there is very little evidence. I have earlier indicated my findings on Warraber's estate area to the south and south-east of Naghir before passing into the Part B area: see "The Extremities of the Claim area". To the east, the exclusive estate emerges from Part B at a point on the boundary line north of Atub and then northwards to the west of Moegi Maitun and Koey Maitun both of which are shared with Poruma and Masig before veering to the north-west below Gagainab and onto Sassie. (viii) The Shared Central Island Area It is difficult to identify with any precision which are the islands that participate in the sharing to which I will now refer. The reason for this is that the Central island witnesses who deal with the matter simply refer to the area as being "Kulkulgal" which in context may mean some or all of the Central Islands: see eg Ethel Bob. While there have been some individual claims made for Iama in the shared area (George Lui refers to Zuizin or Halfway Island being shared by Poruma, Masig, Warraber and Yam; Kris Billy asserts that Seriam Gau Gau is shared by Poruma, Warraber, Yam and Masig), the predominant view would seem to be that the sharing parties for most, if not all, of it are Masig, Poruma and Warraber. For present purposes I leave out of consideration sharing in the Part B area. Commencing at a point to the north of Atub, the shared area runs east to a point on the Part B boundary line to the south of Kebi Waireg. From there is runs to the north sharing waters with Mer and then Mer and Erub (near Kebi Waireg) and then to the eastern side of Megi Waireg, this time sharing waters with Masig, Erub and Mer into Cumberland Passage and then around Nepkem Kep and then Aureed before merging with the exclusive estates, first, of Poruma going south, and then Warraber until it reaches the point above Atub on the Part B claim line. (ix) Mua The south eastern boundary of Mua's exclusive area has been referred to earlier: see "The Extremities of the Claim area". The eastern boundary of its estate is in the waters it shares with Warraber around Naghir, Gitalai, Sauraz and probably Tekay before arcing west around Sarbi (which belongs to Mua). It then passes through the channel between Badu and Mua on the southern side of Yargas and Tik onto the Mua side of Tuin (which is shared by Mua and Badu: Nona and Manas v Queensland [2006] FCA 412), and across Dollar Reef to the boundary of the Part B sea claim. Mua also shares an area with Badu starting at the Part B sea claim boundary line at the end point of its exclusive marine estate boundary and goes west to the western edge of Dollar Reef before going north around Moegi Gua and Koey Gua and then north-westerly around Mukurad before turning east and passing through between Tukupai (which is shared by Mua and Badu: Nona and Manas v Queensland [2006] FCA 412) and Yol (which belongs to Badu) before finally joining up with Mua's exclusive area in the waters above Tuin. (x) Badu The eastern boundary of Badu's exclusive area is shared with Mua save that where, the channel is divided by the islands above Tuin, the waters on the western side belong to Badu. The boundary line hooks north to the west of Sarbi before turning west and goes south of Kuiku Pad (which belongs to Mabuiag) through Alligator Passage. It continues north/north-westerly towards Turu Cay until it meets the Seabed Jurisdiction Line. From there, for the purposes of the NT Act claim as distinct from Mua's marine estate, it follows the Seabed Jurisdiction line till it meets the notional point of intersection of a line running between Turu Cay and Cook Reef around which it turns south-easterly passing around the western and southern side of Cook Reef (Cook Reef and Turu Cay form the western boundary of Badu's estate: Walter Nona) before turning to the islands shared with Mua to the south-west of Badu. (xi) Mabuiag The south-western extremity of Mabuiag's exclusive area commences adjacent to that point on the Seabed Jurisdiction Line where Badu's northern boundary joins that line. From that point it goes south-eastwards following alongside Badu's area and then Mua's before turning northwards at Tekay (which it might share) from where it runs adjacent to Iama's waters (the estates of Mabuiag and Iama meet at a point equidistant between Mabuiag and Iama) to the point where Iama's boundary turns to the east in the Top Hat area. At around that point Mabuiag's boundary turns to the west. It then runs into the Australian territorial waters of Buru. Mabuiag's exclusive estate runs to the south of Buru's territorial waters and Aidal Maza until it reaches the Fisheries Jurisdiction Line. From there it follows that Line south until it meets with the Seabed Jurisdiction Line. The estate then runs in a south westerly direction until it intersects with the northern part of Badu's exclusive estate. Buru was the subject of a consent land determination in favour of the peoples of Saibai, Dauan, Boigu, Badu and Mabuiag (Nona and Ors v Queensland [2005] FCA 1118). This territorial waters area seems on the evidence to be used by all five of the consent determination communities and it is not unreasonable to regard the territorial waters as being part of the shared area. The shared area extends additionally to the south-west of Buru around Aidal Maza, then west to the Fisheries Jurisdiction Line boundary before turning north-east to re-join the territorial waters on their western extremity. (xii) Boigu, Dauan and Saibai For present purposes, such is the nature of sharing between Dauan and Saibai that save for Saibai's home areas, it is unnecessary to distinguish between them. The northern, eastern and western boundaries for the Top Western Islands are set by the Fisheries Jurisdiction Line. The southern boundary is set by the boundaries of Iama, Mabuiag and the area around Buru which is shared by Boigu, Dauan, Saibai, Mabuiag and Badu. As between Boigu and Saibai, the evidence is that the boundaries of the waters of each respectively are divided in the middle between them. As I have already indicated shared use is made by all three of the waters of each of Saibai and Boigu (ie Dauan and Saibai can use Boigu waters; Boigulgal can use Saibai and Dauan waters).

Parties

Applicant/Plaintiff:

Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group

Respondent/Defendant:

State of Queensland

Legislation Cited (43)

Sale of Opium Act 1897(Qld)

Part III, Part IV, Part V Seas and Submerged Lands Act 1973(Cth)ss 3, 6, 10A, 10B

Pearl-shell and Bęche-de-mer Fishery Act 1881(Qld)ss 1, 3, 4, 5, 6, 11, 13, 16, 16A

Oyster Act 1886(Qld)ss 5, 11, 12, 15, 18, 19

Fish and Oyster Act 1914(Qld)ss 4, 7, 8, 9, 16, 17, 18

Fish and Oyster Acts Amendment Act 1955(Qld)ss 4, 5, 6

Fisheries Act 1957(Qld)ss 3, 6, 11, 12, 14, 16, 17, 18, 19, 20, Part

Part III, Part IV, Part V Fisheries Act 1976(Qld)ss 5, 6, 7, 11, 12, 21, 22, 23, 36H, 41, 42, 43, 44, 45, 46, 47, 48, 49, 51, 53, 54, 55

Part IVA, Part VIII Fisheries Act 1994(Qld)

Fisheries Act 1968(Cth)

Fisheries Amendment Act 1980(Cth)

Amendment Act 1981(Qld)

Fisheries Regulation 2008(Qld)

Transport Operations (Marine Safety) Regulation 2004(Qld)

Fauna Conservation Act 1974(Qld)

Fisheries Act 1998(NT)

Torres Strait Islanders Act 1939(Qld)

(Fisheries Act 1976(Qld)

Fisheries Act 1953(Cth)

Fisheries Regulations, Statutory Rules 1954(Cth)

Fisheries Act 1976(Qld)

(Qld), the Fisheries Management Act 1991(Cth)

(Cth), the Torres Strait Fisheries Act 1984(Qld)

Seas and Submerged Lands Act 1973(Cth)

Native Title Act 1993(Cth)

Evidence Act 1995(Cth)s 144(1)(b)), this

Torres Strait Fisheries Act 1984(Cth)ss 3, 4, 5, 7, 8, 14, 15, 15A, 16, 17, 19, 20, 31, 45, Part

Acts Interpretation Act 1901(Cth)s 15B, s 15B(5)

Fisheries Act 1952(Cth)ss 4, 5AA, 5B, 7, 7A, 8, 9, 12D, 12H, 12J, 12K

Fisheries Management Act 1991(Cth)ss 3, 4, 5, 9, 10, 17, 21, 32, 76, 78, 95, Part

Whaling Act 1935(Cth)

Whale Protection Act 1980(Cth)

Pearl Fisheries Act 1952(Cth)s 8

Continental Shelf (Living Natural Resources) Act 1968(Cth)ss 7, 11, 15

Fisheries Administration Act 1991(Cth)

Australian Maritime Safety Authority Act 1990(Cth)

Lighthouses Act 1911(Cth)ss 7, 8, 10, 19

Coastal Waters (State Title) Act 1980(Cth)ss 4, 5

Torres Strait Fisheries Act 1984(Qld)

Transport Operations (Marine Safety) Act 1994(Qld)

Fisheries Regulations 1954(Cth)

Torres Strait Fisheries Regulations 1985(Cth)

Fisheries Act 1994(Qld)s 11, as, s 3

Cases Cited (64)

Cases cited: Mabo v Queensland [No 2] (1992) 175 CLR 1 applied Wacando v Commonwealth (1981) 148 CLR 1 cited Commonwealth v Yarmirr (2001) 208 CLR 1 applied Gamogab v Akiba (2007) 159 FCR 578 cited Gumana v Northern Territory (2007) 158 FCR 349 applied Members of Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 applied Western Australia v Ward (2002) 213 CLR 1 applied Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424 cited Alyawarr, Kaytetye, Warumungui, Wakay Native Title Claim Group v Northern Territory [2004] FCA 472 cited Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 cited Sampi v Western Australia [2005] FCA 777 cited Gumana v Northern Territory (2004) 141 FCR 457 cited Neowarra v Western Australia [2003] FCA 1402 followed Bodney v Bennell (2008) 167 FCR 84applied Jones v Dunkel (1958) 101 CLR 298 cited Packer v Cameron (1989) 54 SASR 246 cited O'Donnell v Reichard [1975] VR 916 cited Yarmirr v Northern Territory (1998) 82 FCR 533 cited Warria v Queensland [2004] FCA 1572 cited Lota Warria v Queensland [2005] FCA 1117 cited Thaiday v Queensland [2005] FCA 1116 cited Nona and Manas v Queensland [2006] FCA 412 cited Nona v Queensland [2005] FCA 1118 cited Munn v Queensland (2001) 115 FCR 109 followed Quall v Northern Territory of Australia (2009) 180 FCR 528 cited Kokatha People v South Australia [2007] FCA 1057 cited The Wik Peoples v Queensland (1994) 49 FCR 1 cited Western Australia v Ward (2000) 99 FCR 316 applied Northern Territory v Alyawarr (2005) 145 FCR 442 applied Sampi v Western Australia [2010] FCAFC 26 applied De Rose v South Australia (No 2) (2005) 145 FCR 290 followed Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 cited The Lardil Peoples v Queensland [2004] FCA 298cited Mye v Queensland [2004] FCA 1573cited Stephen v Queensland [2004] FCA 1574 cited Aruli v Mitchell, SC of WA, Full Court, 31 March 1999 (unreported) cited Western Australia v Commonwealth (1994) 183 CLR 373 cited New South Wales v Commonwealth (1975) 135 CLR 337 cited Fejo v Northern Territory (1998) 195 CLR 96 cited Yanner v Eaton (1999) 201 CLR 351 applied Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24cited Commonwealth v Yarmirr (2000) 101 FCR 171 cited Daniel v Western Australia [2003] FCA 666 cited Corporation of Saltash v Goodman (1881) 7 QBD 106 cited Goodman v Mayor of Saltash (1882) 7 App Cas 633 cited Race v Ward (1855) 4 El & Bl 702; (1855) 119 ER 259 cited Embrey v Owen (1851) 6 Ex 353; (1851) 155 ER 579 cited Attorney-General, ex rel Yorkshire Derwent Trust Ltd v Brotherton [1992] 1 AC 425 cited Mabo v Queensland [No 1] (1988) 166 CLR 186 cited Wik Peoples v Queensland (1996) 187 CLR 1 applied Evans v New South Wales (2008) 168 FCR 576 followed CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied Haida Nation v British Columbia (Minister of Forests) (2004) 245 DLR (4th) 33 cited Toomer v Witsell 334 US 385 (1948) cited Harper v Minister for Sea Fisheries (1989) 168 CLR 314 cited Illinois Central Railroad Co v People of the State of Illinois 146 US 387 (1892) cited M C Mehta v Kamal Nath (1997) 1 SCC 388 cited Bonser v La Macchia (1969) 122 CLR 177 cited R v Sparrow (1990) 70 DLR (4th) 385 cited Ward v Cresswell (1741) Willes 265; 125 ER 1165 cited The Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 cited Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 cited National Australia Bank Ltd v Blacker (2000) 104 FCR 288 cited N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1979) 2 BPR 9241 cited Metal Manufactures Ltd v Federal Commissioner of Taxation (2000) 43 ATR 375 cited Anthony v Commonwealth (1973) 47 ALJR 83 cited Holland v Hodgson (1872) LR7CP 328 cited Masig People v Queensland [2000] FCA 1067 cited King v Northern Territory of Australia [2007] FCA 1498cited Lardil Peoples v Queensland (2001) 108 FCR 453 cited Reid v South Australia [2007] FCA 1479 cited Ashwin v Western Australia [2010] FCA 206cited Northern Territory v Doepel (2003) 133 FCR 112 cited Griffiths v Northern Territory (2007) 165 FCR 391 cited Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 cited Akiba v Queensland (No 2) (2006) 154 FCR 513 cited

The Commonwealth 121 Having indicated in the opening of the case on 1 October 2008 that Professor Basil Sansom would give anthropological evidence, in the event he was not called by the Commonwealth. Professor Sansom had, as I understand it, prepared three reports; had participated in the Conference on Experts (discussed below); and had attended much of the hearings. No evidence was given by the Commonwealth by way of explanation of the decision not to call him. In these circumstances, the Applicant asks that I apply the rule in Jones v Dunkel (1958) 101 CLR 298 at 308, which, it is said, applies not only to an unexplained failure of a party to give evidence, but also to where there has been an unexplained failure of a party to call a witness - including an expert witness: eg Packer v Cameron (1989) 54 SASR 246 at 253-4 - whom that party might reasonably be expected to call to give evidence: O'Donnell v Reichard [1975] VR 916 at 929. 122 It is, as I understand it, common ground that Professor Sansom has had no prior involvement with the Islander witnesses and has conducted no anthropological research in the claim area. To that extent, it is unlikely he could have brought to bear a distinctive perspective and he could not have given direct evidence on the matters in issue: cf Gumana TJ at [156]. Different considerations may have applied to the failure to call him had his Torres Strait experience been otherwise. Then it might reasonably have been expected to call him. I am satisfied, though, that in the distinctive circumstances in which this issue is raised and given the type of contribution he could have been expected to make (ie a literature and peer review) - in all probability it would have been similar in character (I do not speculate about what he might have said) to that of Dr Sackett: see below - it would be inappropriate for me (a) more readily to accept the anthropological evidence given by Mr Murphy, Professor Scott and Professor Beckett; and (b) more confidently to draw inferences open on the evidence that are favourable to the Applicant on matters to which anthropological evidence has been directed.

(i) The Land Determinations 147 There have been 22 determinations of native title rights and interests in relation to over 100 islands, islets and rocks above the high water mark in Part A of the claim area. Mabo [No 2] apart, all have been consent determinations. In 17 of these determinations exclusive native title was found in favour of single island communities. In the case of 4 others the native title rights in question were held collectively by members of two or more island communities all of which in each case belonged to a single "cluster" group of islands, ie the Central Islands: Warria v Queensland [2004] FCA 1572; Warria v Queensland [2005] FCA 1117; Thaiday v Queensland [2005] FCA 1116; and the Western Islands: Nona and Manas v Queensland [2006] FCA 412. In one case - Nona and Ors v Queensland [2005] FCA 1118 - the native title rights and interests in four islands lying on the PNG side of the Seabed Jurisdiction Line (Buru, Warul Kawa, Awial Kawa and Turu Cay) were found in favour of the peoples of five island communities who did not belong to a single, regional group. They were the peoples of Saibai, Dauan, Boigu, Mabuiag and Badu. 148 The State was a party to all of the consent determinations. The Commonwealth as such was a party to none. 149 In each of the consent determinations and consistently with s 87(1) of the NT Act short reasons for decision were delivered. Over half of the reasons in turn drew (understandably uncritically in the circumstances) upon the "connection report" that had been prepared by the anthropologist engaged by the Torres Strait Regional Authority ("the TSRA") for the purpose of each individual case. 150 The consent determinations are significant in three respects. First, seemingly Dauan apart, each of the individual island communities enjoys native title determinations not only in relation to its "home" island but also to some number of off-shore islands some close to, others remote from, the home island. In the Commonwealth's concession the various islands that make up those belonging to a particular community provide the boundary markers of that community's sea territory. The qualification the Commonwealth makes to this is that, if I determine that there are further sandbanks, reefs, etc outside the boundaries so drawn in relation to which a particular community has native title rights (whether shared or otherwise), the boundaries of that community will need to be adjusted accordingly. To oversimplify, the Commonwealth's approach is essentially one focussed on topographical features with the consent determinations providing a vital component in marking out the sea territory of each island community. 151 Secondly, the State attributes quite different significance to the consent determinations. Its contention is that the determinations, the Court's reasons for decision and the connection reports imply local laws and customs and local governance, in most cases at the level of the island community determined to hold the native title. As I will later note, the State seeks to explain away the significance of those five determinations where native title belongs to the peoples of a number of island communities. 152 Thirdly, I should indicate at the outset that I do not consider the connection reports prepared for the individual island claims in particular, to be of real moment in this proceeding. Given their purpose, they were sufficient for the day. I would again emphasise that it is common to the parties that, whosoever might constitute the relevant society whose laws and customs are being acknowledged and observed, the native title rights and interests possessed under those laws and customs in both land and waters are held, in the main, at the individual island community level. What are significant are the five determinations in favour of two or more "peoples". The proper explanation of this phenomenon is of some importance in this proceeding. 153 In saying this I should note the following. A consent based order can only be made under s 87 of the NT Act if it appears to the Court to be appropriate to do so and provided the jurisdictional pre-conditions of s 87(1) have been met: Munn v Queensland (2001) 115 FCR 109 ("Munn") at [4]-[5]. One of those preconditions is that agreement has been reached between the parties "on the terms of an order of the Federal Court" in relation to the proceedings, etc. While the discretion so given must be exercised judicially and while the Court now characteristically will have regard to such expert and other evidence as has been put on to demonstrate (in the case of an order for a determination of native title) that there is evidence conforming to the requirements of Yorta Yorta HC and s 225 of the NT Act, the Court is not itself required to make its own findings on the matters implicit in, or presupposed by, the orders made. As Emmett J observed in the context of the issue then before him in Munn (at [30]): … in an appropriate case, the Court may well ask to be shown the evidence upon which the parties have based their decision to reach a compromise. … I would not contemplate that, where the Court is being asked to make an order under s 87, any findings would be made on those matters. The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally. In consequence, while the Court's order will found a plea of res judicata as between the parties, there may be a question, unlike with a contested determination: cf Quall v Northern Territory of Australia (2009) 180 FCR 528 esp at [12] and [14]; as to whether a s 87 order may give rise to issue estoppels: cf Spencer Bower, Turner and Handley, Res Judicata, paras 38-39 (3rd ed, 1996). It is unnecessary that I further consider that question which, in any event, may be of little consequence for reasons I give below. 154 In the Applicant's pleading, it appeared its case was drifting in some fashion into the sphere of issue estoppel. Paragraph [6] of the Fourth Amended Points of Claim is in these terms: The making of the consent determinations involves: (a) admissions and acknowledgements by the parties in the proceedings in which the consent determinations were respectively made; and (b) findings by the Court by consent, That: (c) the ancestors are ancestors of the members of the sea claim group; (d) native title exists on numerous inhabited and uninhabited islands all of which abut and most of which are entirely surrounded by the application area; (e) the rights and interests that: (i) exist in relation to land in those areas, as possessed under the traditional laws acknowledged and traditional customs observed by ancestors of members of the sea claim group; and (ii) are recognised in relation to land in those areas as native title rights and interests, are exclusive rights and interests.

155 The State in its points of reply gave its own and somewhat different version of the effects of the consent determinations. 156 The parties did not make oral or written final submissions on this aspect of the consent determinations although I invited comment both from the Applicant and the State. The position that seems to have been reached both by the Applicant and by the State in relation to the determinations is that, to use the Applicant's words: "we don't regard them to be estoppels or anything of that kind." At best, the Applicant persists in seeing their relevance mainly in the form of admissions. 157 It is important to emphasise that the consent determinations, having been made in compliance with s 225 of the NT Act (see s 87(2) and s 94A) have the force and effect contemplated by the Act itself. To reiterate what I said in Kokatha People v South Australia [2007] FCA 1057 at [33], it is clear from the text and structure of the Act that a s 225 determination, once made, should be a final, "once and for all" resolution of the extent of native title in relation to a particular piece of land: see Munn at [8]; subject only to the possibility of it being varied or revoked on the limited grounds specified in s 13(5). Because such a determination is declaratory of the rights and interests of all parties holding rights or interests in the area, it is commonly and properly described as a judgment in rem binding the whole world: The Wik Peoples v Queensland (1994) 49 FCR 1; Western Australia v Ward (2000) 99 FCR 316 ("Ward FC") at 368-369; Gumana TJ at [127]; on judgments in rem see also 2 Smith's Leading Cases 776 (12th ed, 1915). Nonetheless, it should be remembered that it is the terms of the Act itself (i) which now emphatically give a s 225 determination its finalising effect; see in particular ss 13(1) and (3), 61A(1) and 68; and (ii) which give persons likely to be affected by such a determination (including native title claimants) the opportunity to protect their interests by becoming a party to the proceedings: see s 84(3) and see also s 66. 158 As will later become apparent, I emphasise the above matters for this reason. The inferences justifiably to be drawn from the consent determinations in their respective contexts bear significantly on how properly to explain the five determinations in favour of two or more "peoples". 159 My own view is that, irrespective of any question of issue estoppel, the inference which is properly to be drawn from the orders themselves in their context, in each of the five instances of multi-island group determinations, is that they each were premised on there being only one normative system of laws and customs and that these were observed by the group members who were descendants from the relevant ancestors specified in each of the determinations. This constitutes a short, but not the only, answer to the State's case.

Unlike the previous three consent determinations the areas shared in this matter were shared by islands from two different cluster groups. (v) Nona and Manas v Queensland [2006] FCA 412 272 The claim was to numerous uninhabited islands, islets and rocks to the south and south-west of Badu and Mua respectively. The claimants were the descendants of apical ancestors of Badu and Mua and named adoptees. The claim seemingly relied upon "Western Torres Strait Islander traditional law and custom"; "a normative system of Torres Strait custom". I note that Dowsett J inferred that "the State of Queensland has taken such advice as it considers appropriate" and, in light of it, "has chosen to seek this consent determination". 273 Despite the considerable body of evidence mentioning sharing both of use and of ownership of areas, the evidence explaining sharing was relatively slight. Islander evidence on shared ownership was consistent with acknowledged ancestral occupation by another community (or other communities) as well as one's own and with inheritance by descent: MR BLOWES: I was going to say, why is that that Warraber people and Poruma people and Masig people can all go to Ap Island and Aureed area without worrying about each other? NELSON BILLY: Well, it's closest to our area as the Central Island group. You know, it's free to move but we've been there before, you know, all our fathers been there, so as we are now following. MR BLOWES: So fathers from which places? NELSON BILLY: From Masig. MR BLOWES: For what, for Ap Island and Aureed? Which fathers? NELSON BILLY: Masig, Poruma, Warraber, they been there before. … MR BLOWES: Alright. Now, say Au Masig it's got that little bit of Eastern Island language, is that also a place you heard about your ancestors going and working around there? NELSON BILLY: Well, that's what I say that, you know, it was in sharing. People from Eastern Island and people from, you know, Murray island come there and they - they named that place like that, you know, in our area. It's to indicate that they been there. We share that area.