(e) Exclusive possession, occupation, use and enjoyment
283 Evidence as to the use of the sea country by the claimant group primarily related to events occurring since British sovereignty was acquired over the Northern Territory in 1824.
284 His Honour (82 FCR 580) said:
"The evidence establishes that the applicant community has consistently asserted, as a matter of Aboriginal law, the right to be consulted about and to make decisions concerning the use of its sea country. … But whether there was ever an occasion in pre-contact [pre-European] times for the applicants' ancestors to assert this particular right [i.e. an exclusive right to possession], as distinct from the right to control who may come upon their country … is not a matter upon which there is any evidence before the Court."
285 Olney J concluded (82 FCR 585) that the claim that, by their traditional laws and customs, the claimant group enjoyed exclusive possession, occupation, use and enjoyment of the claimed area was not supported by the evidence saying:
"At its highest the evidence suggests that as between themselves, the members of each yuwurrumu recognise, and defer to, the claims of the other yuwurrumus, to the extent that on occasions permission is sought before fishing, hunting or gathering on another clan's sea country and by inference, although the evidence is not strong, other Aboriginal people from country outside the claimed area probably do likewise."
(f) A right to use and control resources
286 Olney J concluded (82 FCR 586) that although the claimant group fished, hunted for and caught turtle and dugong, and collected oysters and various crustacea in the claimed area, there was no evidence to support any traditional claim to the use and control of any of the resources of that area.
(g) A right to trade
287 Olney J found that there was no evidence of a right to trade after European contact. There was evidence of "exchanges" of objects, including some from the sea, with Macassans who were a pre-European sea-faring people from Sulawesi. However, his Honour said that the trade consisted of the exchange of goods and did not amount to a right or interest in relation to the waters or land (82 FCR 587).
(h) Minerals
288 Olney J (82 FCR 600-601) held there was no evidence that any traditional law or custom of the claimant group related to the acquisition or use of, or trading in, minerals found on or in the seabed or subsoil of the waters of the claimed area.
(i) Recognition, Extinguishment and Other Related Issues
289 Olney J (82 FCR 592) concluded that the claim to exclusive possession must fail in any event as it infringed the right of innocent passage which Australia was obliged to recognise and enforce under international law. His Honour also held (82 FCR 593) that the claim was inconsistent with the public right of navigation and the public right to fish, each of which was a "skeletal principle of our legal system" to which native title was subordinated.
290 His Honour (82 FCR 599-600) also concluded that the Northern Territory and Commonwealth fisheries legislation was not indicative of an intention to extinguish non-exclusive, non-commercial native title which he found had been established, nor did the legislation create third party rights that were inconsistent with that title. Thus, the native title rights which had been established were held to be capable of co-existence with the regulatory systems applicable in the claimed area as the rights had been regulated, but not extinguished, by prior legislative enactments or administrative action.
291 The primary Judge referred to s 211 of the NTA, which protects non-commercial native title rights and interests, and said (82 FCR 600):
"… to the extent that the scheme of regulation would otherwise require the applicants to obtain a licence, permit or other instrument under a law of the Northern Territory or of the Commonwealth to lawfully exercise their native title rights of hunting, fishing, gathering or to engage in any cultural or spiritual activity for the purpose of satisfying their personal, domestic or communal non-commercial needs, they are not required to have any such licence, permit or other instrument."
(j) Conclusions
292 His Honour summarised his conclusions (82 FCR 601-602):
"The findings which are expressed in these reasons lead to the following conclusions:
(i) The applicants are entitled to bring this proceeding as representing the Aboriginal peoples identified as the yuwurrumu members of the Mandilarri-Ildugij, the Mangalara, the Murran, the Gadura-Minaga, and the Ngaynjaharr clans. The peoples on whose behalf the proceeding is brought are a recognisable community of Aboriginal peoples (the Croker Island community) who are the descendants of the indigenous inhabitants of the islands and mainland within and adjacent to the area in respect of which a native title determination is sought.
(ii) Under the traditional laws acknowledged and the traditional customs observed by the Croker Island community, the community has rights and interests which are recognised by the common law of Australia in relation to the seas and seabed of the claimed area by which rights and interests the community has a connection with the sea and seabed. (The word sea is used to refer to the water which washes the shores of the relevant land masses as distinct from waters, a term defined in the Native Title Act to include the seabed and subsoil). The applicants have not established native title in relation to the subsoil or its resources.
(iv) In accordance with and subject to their traditional laws and traditional customs and subject to all valid laws of the Commonwealth and the Northern Territory and to the rights of the lessee under Crown Term Lease No 1034 the members of the Croker Island community have a non-exclusive native title right to have free access to the sea and seabed of the claimed area for all or any of the following purposes:
(a) to travel through or within the claimed area;
(b) to fish, hunt and gather for the purpose of satisfying their personal, domestic or non-commercial communal needs, including the purpose of observing traditional, cultural, ritual and spiritual laws and customs;
(c) to visit and protect places which are of cultural and spiritual importance;
(d) to safeguard their cultural and spiritual knowledge."
3. THE DETERMINATION
293 The final determination of Olney J (at 601-602), pursuant to s 81 of the NTA, was as follows:
"1. Native title exists in relation to the sea and seabed within the area more particularly described in the schedule (the claimed area).
2. The native title is held by the Aboriginal peoples who are the yuwurrumu members of the Mandilarri-Ildugij, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans (the common law holders).
3. Injarnyala Corporation after becoming a registered native title body corporate is to perform the functions mentioned in section 57(3) of the Native Title Act 1993.
4. The native title rights and interests do not confer possession, occupation, use and enjoyment of the sea and seabed within the claimed area to the exclusion of all others.
5. The native title rights and interests that the Court considers to be of importance are the rights and interests of the common law holders, in accordance with and subject to their traditional laws and customs to -
(a) fish, hunt and gather within the claimed area for the purpose of satisfying their personal, domestic or non-commercial communal needs including for the purpose of observing traditional, cultural, ritual and spiritual laws and customs;
(b) have access to the sea and seabed within the claimed area for all or any of the following purposes:
(i) to exercise all or any of the rights and interests referred to in subparagraph 5(a);
(ii) to travel through or within the claimed area;
(iii) to visit and protect places within the claimed area which are of cultural or spiritual importance;
(iv) to safeguard the cultural and spiritual knowledge of the common law holders.
6. The native title rights and interests of the common law holders in relation to the sea and seabed within the claimed area may be affected by rights and interests in relation to the sea and seabed within the claimed area validly granted or which exist or which may hereafter exist pursuant to the laws of the Commonwealth of Australia and of the Northern Territory of Australia.
…
SCHEDULE
(a) The boundary of the claimed area, commencing from the easternmost point of de Courcy Head which is located on the mainland to the east of Croker Island and proceeding in a clockwise direction from de Courcy Head, is as follows:
From de Courcy Head the boundary proceeds in a generally westerly direction by following the low water mark (subject to subparagraph (b) below) of the coastline to the point where it intersects with the border of the Cobourg Marine Park. This intersection point is on the sea coast at low water mark distant about 16 kilometres on a true bearing of 245 degrees from Coombe Point, Mountnorris Bay. It is also to the south of Guialung Point.
The boundary then proceeds in a north of east direction for about 5 kilometres by following the border of the Cobourg Marine Park to latitude 11°28'52" South, longitude 132°40'30" East.
The boundary then proceeds in a north of west direction along the Cobourg Marine Park border past Guialung Point and through Bowen Strait to that point on the Cobourg Marine Park border which has latitude 11°03'08.2" South, longitude 132°21'19.1" East. This point is located slightly to the north of west of Palm Bay, Croker Island.
From here the boundary leaves the border of the Cobourg Marine Park and proceeds in a north of east direction to latitude 10°55'54.4" South, longitude 132°34'44.9" East. This point is located to the north of Cape Croker, Croker Island.
The boundary then proceeds in a direction slightly south of east to latitude 10°56'59.7" South, longitude 132°49'49.7" East. This point is located north of Murri Point, Manburra (Oxley) Island.
The boundary then proceeds in a direction slightly north of east to latitude 10°52'38.9" South, longitude 133°04'43.8" East. This point is located north of east of Gurrmal (New Year) Island.
The boundary then proceeds in a direction slightly north of east to latitude 10°52'11.6" South, longitude 133°10'13.2" East.
The boundary then proceeds in a direction south of west back to the point of commencement at the easternmost point of de Courcy Head.
(b) Where the claimed area abuts the coast of an island or of the mainland of Australia:
(i) the seabed in the claimed area ends at the mean low water mark; and
(ii) the sea included in the claimed area are the waters above the seabed as defined in (i) above and the waters above the inter-tidal zone adjacent to the seabed as defined in (i) above (being an area ending at the mean high water mark).
(d) All geographic co-ordinates are expressed in terms of the Australian Geodetic Datum as proclaimed in the Australian Government Gazette of 6 October 1966."
294 The area, the subject of the determination, comprises the coastal waters and the territorial sea and seabed which surrounded part of the Australian mainland and the islands occupied by the claimant group. The boundary of the land and each of the islands, the subject of the grant under the Land Rights Act, was the mean low water mark as determined by the tides. His Honour treated the claim as embracing the sea of the intertidal zone surrounding the islands and the adjoining mainland areas but not the seabed of that zone (that is, the land of the intertidal zone when it is covered by the sea) as that seabed had been the subject of the grant.
295 It is appropriate to make several preliminary, but inter-related observations in respect of his Honour's determination. First, on the facts of the present case different legislative regimes have applied to the land to the low water mark (the Land Rights Act) and the waters (the NTA) within the claimed area. The claimant group, having rights to the islands in the claimed area under the Lands Rights Act, brought a claim under the NTA solely in respect of what was described as their "sea country". The claim, and the evidence to support it, focused primarily on native title rights and interests in respect of the sea. Accordingly, although the native title rights or interests of the claimant group in respect of the islands which its members occupied were an integral aspect of any "native title" held by the claimant group, those rights and interests were incidental to their claim to their sea country.
296 Secondly, his Honour (82 FCR 575) referred to the arbitrary fixing of the western boundary of the claimed area. It appears that, in part, some of the boundaries of the claimed area were fixed in a manner which avoided the making of overlapping claims in respect of sea country being claimed by other claimants under the NTA. Thus, while the boundaries were drawn with a view to identifying the area in respect of which the claimant group claimed an entitlement to native title, the precise boundaries were, in part, influenced by endeavours not to intrude upon or overlap with other claims under the NTA in respect of neighbouring sea areas. Whilst that situation, of itself, does not detract from the claim it does serve to emphasise the importance of ensuring that the claimant group establish its entitlement to native title in respect of the claimed area.
297 Thirdly, the determination was that each yuwurrumu is entitled, in accordance with and subject to its traditional laws and customs, to a non-exclusive right to fish, hunt and gather within the claimed area for the purpose of satisfying non-commercial needs and to have access to the sea and seabed within the claimed area for those purposes and for the purpose of visiting and protecting places of cultural or spiritual importance. As Olney J concluded that the claimant group had established its claim in respect of each of the native title rights and interests set out in the determination for the whole of the claimed area, the determination did not specify any particular areas where the fishing, hunting, gathering or cultural or spiritual rights or interests are to be exercised or enjoyed. A question can arise as to whether the relevant native title rights and interests ought to be separately granted in respect of the area to which the particular right or interest relates or, as appears to have been found by Olney J, in respect of the general area within which the rights and interests, cumulatively, are enjoyed.
298 Fourthly, a substantial body of evidence was given, which was accepted by his Honour, as to the traditional fishing, hunting, gathering, cultural and spiritual activities engaged in by the claimant group in different parts of the sea country within the claimed area. Although each of those activities was carried out within the claimed area the boundaries might have been fixed, in part, by reference to the more general evidence given on behalf of the claimant group to the effect that, under Aboriginal law, sea country extended "as far as the eyes can see". If and to the extent that the boundaries were fixed by reference to this criterion under Aboriginal law, that raises the question of whether the determination gave effect to Aboriginal law, as such, rather than to the common law's recognition of the native title rights and interests held by the claimant group as a result of its traditional use, in accordance with Aboriginal law or custom, of a particular area of land or waters.
299 Fifthly, the claimant group in whose favour the determination was made were:
"yuwurrumu members of the Mandilarri-Ildugij clan, the Mangalara-Yangardi clan, the Gadura-Minaga clan, the Murran clan, and the Ngaynjaharr clan;"
300 Olney J (82 FCR 569-570) treated the clans, that is the several estate groups, as bringing the claim "as a single community" rather than as separate groups claiming rights and interests in relation to their respective estates. Although claims by different clans can be brought in respect of one area in one application, the native title rights or interests claimed by a "community" must be separately established. In so far as different clans, forming one community, might have common native title rights and interests in respect of the same land or sea, no problem arises. However, an issue arises whether different clans form a single community and if not, whether discrete and non overlapping native title rights and interests in respect of different areas by the clans empower the Court to recognise or give effect to native title rights and interests which are not held by a particular clan in respect of another clan's area merely because the clans agree to bring joint claims as if they are a single community in respect of the one area. Claims to native title rights or interests under the NTA must be made out in their own right and the expedient of bringing claims jointly cannot relieve the Court of its task of determining whether each claim made has been established.
301 The final observation relates to the fundamental difference between a claim in respect of land with its physically delineated boundaries, which can be occupied as such, and a claim in respect of the sea which cannot. The Commonwealth emphasised the different legal regimes applicable to the land and the sea claiming that the different relationship between people and the sea has been recognised by the principles of the common law and of international law which govern rights in the sea premised, so it contended, "upon the concept of the freedom of the seas". Thus, so it was said, the seas are open and together with its living resources must be shared, subject to regulation in the public interest. The riposte of the claimant group was that that approach does not accord with the traditional laws and customs of the claimant group. Their sea country, and the use made of it, was said to depend "upon its physical character, its mythological character, the fish, animals and other resources it provides, and weather conditions that prevail from time to time". Whilst the distinction sought to be drawn by the Commonwealth between land and sea claims does not necessarily impede or limit the claimant groups' entitlement to claim native title rights and interests in relation to the sea and the seabed, plainly, some caution needs to be exercised in applying principles that have been developed in relation to native title claims to land to claims to the sea and the seabed.
4. NATIVE TITLE
(a) The Common law
302 In The Queen v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 356-357 Brennan J discussed the traditional connection between particular Aboriginal groups and their land as having "a unique significance". His Honour explained the consequences of the severance of that connection by citing the late Professor W.E.H. Stanner in White Man Got No Dreaming (1979) at 230:
"When we took what we call 'land' we took what to [the Aborigine] meant hearth, home, the source and locus of life, and everlastingness of spirit. At the same time it left each local band bereft of an essential constant that made their plan and code of living intelligible. Particular pieces of territory, each a homeland, formed part of a set of constants without which no affiliation of any person to any other person, no link in the whole network of relationships, no part of the complex structure of social groups any longer had all its co-ordinates. What I described as 'homelessness', then, means that the Aborigines faced a kind of vertigo in living. They had no stable base of life; every personal affiliation was lamed; every group structure was put out of kilter; no social network had a point of fixture left."
303 In Gerhardy v Brown (1985) 159 CLR 70 at 136 Brennan J said that conferring land rights (in that case under the Pitjantjatjara Land Rights Act 1981 (S.A.)) became the means by which the relevant indigenous group:
"…should be able to foster their traditional affiliation with the lands, to discharge their traditional responsibilities and to build a sense of spiritual, cultural and social identity."
304 The first recognition of the traditional connection between Aboriginal groups and their land by the common law in Australia occurred in Mabo v Queensland [No 2] (1992) 175 CLR 1, in which the High Court held that the common law in Australia recognised the native title of certain indigenous inhabitants in land occupied by them upon the acquisition of sovereignty by the Crown. The recognition of native title by the common law was of critical importance as it meant that upon the acquisition of, and therefore change in, sovereignty native title, which had previously derived its enforcement and protection solely from Aboriginal custom and law, was thereafter also able to be enforced and protected by the common law. Without that recognition native title would not, without legislation, be capable of being protected under Australian law as the Crown's acquisition of sovereignty resulted in the loss of any limited or other rights of sovereignty that might have previously resided in the Aboriginal people of Australia. As was held in Mabo, thereafter the only legal or native title rights and interests of the Aboriginal people were those created or recognised by Australian law. See also Walker v New South Wales (1994) 182 CLR 45 at 48-49 and Wik Peoples v Queensland (1996) 187 CLR 1 at 236-238 per Kirby J.
305 In Mabo (at 58) Brennan J stated that native title has its origins in and is given its content by the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants of a territory. His Honour added that the nature and incidents of native title, which are derived from the traditional connection between indigenous people and their land, are to be ascertained as a matter of fact in each case by reference to the traditional laws and customs observed by the indigenous inhabitants of a territory.
306 In Yanner v Eaton [1999] HCA 53 at [37] and [38] Gleeson CJ, Gaudron, Kirby and Hayne JJ, after citing the observation of Brennan J in Meneling Station that the traditional connection was "primarily a spiritual affair rather than a bundle of rights" added:
"Native title rights and interests must be understood as what has been called 'a perception of socially constituted fact' as well as 'comprising various assortments of artificially defined jural right'. And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land."
307 In Yanner at [72] Gummow J stated:
"Native title is not treated by the common law as a unitary concept. The heterogeneous laws and customs of Australia's indigenous peoples, the Aboriginals and Torres Strait Islanders, provide its content. It is the relationship between a community of indigenous people and the land defined by reference to that community's traditional laws and customs, which is the bridgehead to the common law."
308 As Crown sovereignty over Australia was acquired at a time when the laws and customs of the indigenous population were invariably "traditional", little consideration has been required to be given to that term. Thus, in Mabo there was no real doubt that the laws and customs relied upon as founding native title were "traditional". However, as I later explain, sovereignty in respect of the territorial sea within the claimed area was only acquired in more recent times, thereby raising an issue as to whether the laws and customs more recently acknowledged or observed are "traditional". In Canada, when a similar issue arose for consideration in R v Van Der Peet (1996) 137 DLR (4th) 289 Lamer CJC (at 308) referred to the statement of Brennan J in Mabo at 58 and stated:
"'[T]raditional laws' and 'traditional customs' are those things passed down,
and arising, from the pre-existing culture and customs of Aboriginal peoples. The very meaning of the word 'tradition' - that which is 'handed down from ancestors to posterity', Concise Oxford Dictionary, 9th ed. (Oxford: Clarendon Press, 1995) - implies these origins for the customs and laws that the Australian High Court in Mabo is asserting to be relevant for the determination of the existence of Aboriginal title. To base Aboriginal title in traditional laws and customs, as was done in Mabo, is, therefore, to base that title in the pre-existing societies of Aboriginal peoples."
309 McLachlin J (at 372) referred to the same statement of Brennan J and observed that "traditional" laws and customs "must be rooted in the historical and ancestral practices of the Aboriginal people in question".
310 In Mabo (at 58-62) Brennan J stated the following general propositions:
· native title can be possessed only by the indigenous inhabitants and their descendants;
· native title may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary, personal or usufructuary, and whether possessed by a community, a group or an individual;
· a communal native title inures for the benefit of the community as a whole, and for the sub-groups and individuals within it who have particular rights and interests in the community's lands.
· native title is not an institution of the common law and is not alienable.
311 Mabo was considered by the Court of Appeal of New South Wales in Mason v Tritton (1994) 34 NSWLR 572. Kirby P (at 579) observed that although the holding in Mabo was limited to the Murray Islands off the coast of Queensland it was clear that the principles governing the decision in Mabo applied generally throughout Australia. Priestley JA (at 597-598) (with whose reasons Gleeson CJ agreed), citing Mabo per Brennan J at 59-60 and 69-70, per Deane J and Gaudron J at 86 and per Toohey J at 184-187, observed that as native title recognised by the common law burdened the radical title, the legal estate and the beneficial estate in the relevant land when it vested in the Crown upon the acquisition of sovereignty, any claimed native title interest must have been in existence immediately before the common law became the law of the colony.
312 In Western Australia v Commonwealth (1995) 183 CLR 373 ("the Native Title Act case"), which was concerned with the constitutional validity of the NTA, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ confirmed the decision in Mabo (at 452) stating:
"Under the common law, as stated in Mabo [No 2], Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown. The content of native title is ascertained by reference to the laws and customs of the people who possess that title…"
313 In Wik, which was concerned with the extinguishment of native title, the High Court again confirmed Mabo. Gummow J (at 169) observed:
"The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein. In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence."
314 In discussing the content of common law native title in Yanner at [73] and [74] Gummow J referred to communal native tittle as the "collective rights, powers and other interests" which may be exercised in accordance with the community's traditional laws and customs with each collective right, power or interest being an "incident" of the community's native title.
315 In Fejo v Northern Territory [1998] 195 CLR 96, which also considered the issue of extinguishment, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ (at 128) re-iterated:
"Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title."
316 Although present day observance of traditional customs did not prove to be a significant problem in Mabo some guidance was offered as to the difficulties that might be encountered in establishing present day native title. In particular, Brennan J (at 59-60) stated that provided the "traditional connexion with the land has been substantially maintained the traditional community title of [a] clan or group can be said to remain in existence". His Honour also said (at 70) that it "is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains". However, his Honour observed (at 60):
"…when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition."
317 As the appeals in the present case raise important issues relating to the conditions stated in Mabo for the recognition by the common law of communal native title possessed by indigenous people in Australia it is desirable, at this stage, to state what I understand to be those conditions. In approaching that question it is to be noted that although the decision in Mabo was made in the context of, and in reliance upon, decisions in other common law jurisdictions that have recognised and protected communal native title rights and interests there are a number of difficulties in relying on native title decisions in jurisdictions where the basis for the recognition of native title is not the common law: see Fejo at [54]. I put aside, for present purposes, the position of native title rights or interests of an individual.
318 Native title, as a pre-existing right or interest in relation to land of the indigenous inhabitants who became colonised upon the acquisition of sovereignty by the Crown over Australia, has been recognised by and is enforceable under the common law of Australia. The pre-existing native title burdened the radical title of the Crown to land acquired by it upon the acquisition of sovereignty without the requirement of any act of formal recognition or acceptance of native title by the Crown. The native title that burdens the radical title:
· was recognised by the common law as surviving the change in or acquisition of sovereignty;
· protects the native title from the extinguishment that the common law would have recognised as otherwise having occurred upon the change in, or acquisition of, sovereignty;
· becomes the native title recognised by the common law.
319 Native title is constituted by the rights and interests possessed by a community or other identifiable group under the traditional laws acknowledged or traditional customs observed by the members of the community or group. In Mabo (at 51) Brennan J observed that where exclusive possession or occupation is "asserted effectively" by the community at the time of the change in sovereignty it can constitute an interest in land that is proprietary in nature. It is important to emphasise that it is the traditional connection with land arising from the acknowledgment and observance of laws or customs by the community, and not recognition or acceptance by others of the connection, or of the law or the customs, that is the source of native title. Present day communal native title relates essentially to the entitlement, since the acquisition of sovereignty by the Crown, of the community holding native title to continue to maintain its traditional connection with the land in accordance with the traditional laws and customs of that community. Generally, it is the occupancy of a particular community of its land, or the presence upon or use by the community of land, in accordance with traditional law and customs at the date of sovereignty that affords the requisite connection between the land and the community entitled to hold native title to it. Although the common law recognises and protects the community's native title possessed in accordance with its traditional laws and customs it does not recognise or protect the traditional laws and customs: see Wik at 213-214 per Kirby J and Fejo at 128. In so far as members of the community have rights inter se as a result of native title those rights are able to be determined and protected in accordance with the traditional laws and customs: see for example Mabo at 62 per Brennan J. In Yanner at [74] Gummow J discussed the exercise of the communal native title rights by individuals or sub-groups as the "exercise of privileges of native title" which will "vary with the traditional laws and customs of the particular community so as to accord with the distinct social structure and patterns of occupancy and use of the land of that indigenous community".
320 As native title follows from establishing the requisite traditional connection between the community and its land it does not depend on proof of particular laws or customs that governed the relationship of community members with that land at the date of sovereignty. However, as it is the native title of the relevant community at the date of sovereignty that burdens the title of the Crown and inures for that benefit of that community, the content of the native title, its nature and incidents are to be determined on the basis of the traditional connection between the community and its land flowing from occupancy of, presence upon or use of the land at that date in accordance with the traditional laws and customs of the community holding the title. Thus, a determination must be made as to those matters, to the extent it is necessary to do so, to determine the present content of the native title possessed by the relevant community and which has survived and is therefore entitled to recognition by the common law.
321 In the present case Olney J (82 FCR 568) explained the task of the Court:
"It is the traditional basis of the currently acknowledged and observed laws and customs which attracts recognition of native title. The task of the Court is to identify those laws and customs which regulated the lives of the forebears of the present members of the applicants prior to European settlement which are currently acknowledged and observed."
322 Whilst the matters identified by his Honour constitute part of the Court's task they are not definitive of that task. The laws and customs as at the date of sovereignty are a source of native title derived from its traditional connection with the land and therefore assist in defining the content, nature and incidents of that native title. The extent to which those laws and customs are currently acknowledged and observed is a relevant factor in ascertaining whether the requisite connection with land has been maintained but, of itself, is not definitive of that issue.
323 In Wik (at 169) Gummow J stated that the title may range from concurrent, personal or communal usufructuary rights to rights equivalent to a legal or equitable estate in the land. In Mabo (at 61 and 70) Brennan J referred to native title rights and interests that may be classified by the common law as proprietary, personal and usufructuary or otherwise. However, as native title is not an institution of the common law or a common law tenure, its content is to be defined by reference to the native title and native title rights or interests possessed in accordance with traditional law and customs rather than by reference to any particular classification of the common law: see the Native Title Act case at 452, Fejo at 128 and Yanner at [76]. As was said in Mabo by Toohey J at 194-195:
"As long ago as 1921 the Privy Council cautioned against attempting to define Aboriginal rights to land by reference to the English law notion of estates. In Amodu Tijani, Viscount Haldane said:
'There is a tendency, operating at times unconsciously, to render [native] title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely.'
As discussed earlier, the specific nature of such a title can be understood only by reference to the traditional system of rules."
324 See also to similar effect in Mabo at 50 per Brennan J, at 84 and 89 per Deane and Gaudron JJ and Fejo at 128 per Kirby J.
325 Whilst some analogy or comparison with an equivalent common law tenure, in order to protect native title, may be useful it is important that that process does not deflect the Court from its task of defining native title by reference to traditional law and customs rather than the common law. Thus, the initial investigation in any native title case will usually involve ascertainment of the content, nature and incidents of native title at the time sovereignty was acquired by the Crown over the land in question (Mabo at 58 and 70 per Brennan J). The common law, by reference to the traditional laws and customs, defines and recognises the native title rights and interests possessed by the indigenous inhabitants (Mabo at 60 per Brennan J).
326 Ordinarily, native title recognised by the common law will be a communal interest and rights possessed under it will be communal or collective rights. The community, which possessed native title to the land under the law and customs of that community, is constituted by the indigenous inhabitants in occupation of the land or who were present upon it or used it when sovereignty was acquired by the Crown. In Mabo, Deane and Gaudron JJ (at 86) referred to the requirement that at the time of colonisation, there be an "identified community" with an established entitlement to the use and occupation of land under local law or custom. Toohey J (at 178-179) referred to communal native title being vested in an Aboriginal group. Native title inures for "the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands" (Mabo at 62 per Brennan J). Native title rights and interests, being inalienable, save for formal surrender to the Crown, cannot exist beyond the community that observes the traditional laws and customs upon which the native title is based.
327 The identification of the indigenous community, as with the defining of its connection to particular land at the date of sovereignty, is to be determined, so far as it is possible to do so, by reference to the traditional law and customs of that community. Present day native title can only be possessed by the descendants of the community whose native title burdened the radical title of the Crown irrespective of whether the group is currently described as "a tribe or other group" (at 110 per Deane and Gaudron JJ and similarly at 178-179 per Toohey J). Brennan J (at 61) said that communal native title can survive so long as the relevant indigenous people remain as an "identifiable community" living under traditionally based laws and customs. In discussing descent in Ward v Western Australia (1998) 159 ALR 483 at 503 Lee J stated:
"Brennan J (at CLR 70) [said] that membership of that community depends on 'biological descent' from the indigenous people entitled to native title at colonisation and on mutual recognition of a person's membership by that person and by persons enjoying traditional authority among those people. Neither Deane, Gaudon JJ nor Toohey J refer to a requirement of 'biological descent'.
Defining a community of indigenous people connected to land by traditional laws and customs by reference to 'biological descent' involves a broad understanding of descent, not the application of a narrow, and exclusive test. If there were no evidence that the community claiming native title had some ancestral connection with the indigenous community in occupation of the land at the time of sovereignty the task of showing substantial maintenance of connection with the land would be difficult to satisfy. Some evidence of ancestry will be necessary not only to identify and define the group entitled to native title but also to show acknowledgement and observance of the traditional laws and customs of the community which possessed native title at sovereignty thereby showing that connection with the land has been substantially maintained.
As McEachern CJ BC stated in Delgamuukw v British Columbia (1991) 79 DLR (4th) 185 at 282 (referred to with with apparent approval by Macfarlane JA in Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 506):
'In a communal claim of this kind I do not consider it necessary for the plaintiffs to prove the connection of each member of the group to distant ancestors who used the lands in question before the assertion of sovereignty. It is enough for this phase of the case...for the plaintiffs to prove, as they have, that a reasonable number of their ancestors
were probably present in and near the villages of the territory for a long, long time.'"
328 In Gibbs v Capewell (1995) 128 ALR 577 at 578-585 and Shaw v Wolf (1998) 83 FCR 113 at 117-122 the Court considered the interaction between descent, self-identification and communal recognition of Aboriginal persons in order to determine whether certain persons were "of the Aboriginal race of Australia" for the purposes of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Plainly, biological descent is an essential element in establishing whether a person is a member of a "race". It is to be noted that the definition of "Aboriginal peoples" in s 253 of the NTA is based on race but the definition of "Torres Strait Islander" is based on descent from an indigenous inhabitant of the Torres Strait Islands. However, community, as such, is a sociological rather than a biological construct (see Shaw v Wolf at 122). Thus, it is difficult to accept that biological descent is always an essential element in establishing whether a person is a descendant of the "community" or "group" which had the requisite connection with the land the subject of a native title claim at the date of sovereignty.
329 The reference by Brennan J to "biological descent" appears in Mabo at 70 where his Honour said:
"Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people."
330 His Honour's conclusion that the persons entitled to native title are to be "ascertained according to the traditional law and customs of the indigenous people who, by those laws and customs, have a connexion with the land" is not consistent with the imposition of a legal requirement of biological descent in order to establish that members of a community are descendants of members of the community which had the requisite connection to the land at the date of sovereignty. Whilst the issue of descent is a question of fact in each case, "descent" could be expected to depend, at least in part, upon the traditional law and customs of the relevant community rather than upon any absolute legal requirement imposed by the common law of Australia. For example, whether a spouse from another community or group can be treated as having been incorporated as a member of the claimant community for the purposes of a native title claim might be ascertained, inter alia, from the traditional laws and customs of the claimant community. Also, even if such persons are not descendants in a biological sense, it is possible that their particular links with the claimant community and its country in accordance with traditional law and customs might authorise them to possess and exercise native title rights and interests in respect of the land as members of the community.
331 A descendant for the purposes of native title is a person whose ancestors were members of the community possessing native title at the date of sovereignty. Ancestors can include lineal or biological descendants or, analogously with real property law, persons who under the traditional law and customs of the community are to be treated as incorporated into the community for the purpose of inheriting or succeeding to the native title rights or interests possessed by the community.
332 In my view Brennan J did not intend to exclude ancestral descent in the sense discussed above and ought to be taken as stating no more than that biological descent and communal recognition will establish membership of a community, rather than that each is always a necessary precondition for establishing membership of the relevant community irrespective of its traditional law and customs.
333 In an analogous context, American courts have had to consider whether certain indigenous Indian tribal groups had a continuous tribal existence entitling them to reclaim tribal lands taken from them during the 19th Century: see for example Mashpee Tribe v New Seabury Corp 592 F2d 575 (1979) and the discussion of the case by Clifford James in The Predicament of Culture (1988) Ch 12 particularly at 333-334. In Mashpee Tribe the United States Court of Appeals (First Circuit) at 588, in rejecting a narrow or technical approach to the definition of a "tribe", stated:
"We think it appropriate that the definition of 'tribe' remain broad enough and flexible enough to continue to reflect the inevitable changes in the meaning and importance of tribal relations for the tribal members and the wide variations among tribal groups living in different parts of the country under different conditions."
334 Similarly in native title cases, membership of the community entitled to claim native title should not be determined by a narrow or technical approach to the issue.
335 Difficulties can also be expected to arise in proving or defining the boundaries of the area the relevant community has occupied or used and in respect of which native title is claimed. However, such difficulties will not, in themselves, be sufficient to deny the existence of native title. As was explained by Lee J (at 504) in Ward the "exigencies of the Aboriginal way of life neither required, nor facilitated, establishment of precise boundaries for territories occupied by Aboriginal societies".
336 Native title may be extinguished by the Crown by a legislative or executive act that exhibits a clear and plain intention to extinguish it (see Mabo Brennan J at 64 and the Native Title Act case at 422). Otherwise, native title continues for as long as the community possessing native title or members of it maintain the requisite connection with the land.
337 In Ward (at 501-503) Lee J discussed what was meant by maintenance of the requisite connection:
"Native title that has not been extinguished by action of the Crown, or by extinction of the society that possessed it, will continue where connection with the land is substantially maintained by a community which acknowledges and observes, as far as practicable, laws and customs based on the traditional practices of its predecessors: see Mabo (No 2) per Brennan J at CLR 59-60. The reasons of Brennan J were approved by Lamer CJ in Delgamuukw (at 257-8) who set out the requirement as follows:
'Needless to say, there is no need to establish 'an unbroken chain of continuity' (Van der Peet, at para 65) between present and prior occupation. The occupation and use of lands may have been disrupted for a time, perhaps as a result of the unwillingness of European colonisers to recognize Aboriginal title. To impose the requirement of continuity too strictly would risk 'undermining the very purposes of s. 35(1) by perpetuating the historical injustice suffered by Aboriginal peoples at the hands of colonisers who failed to respect' Aboriginal rights to land: Cote, supra at para 53. In Mabo, above, the High Court of Australia set down the requirement that there must be 'substantial maintenance of the connection' between the people and the land. In my view, this test should be equally applicable to proof of title in Canada.
I should also note that there is a strong possibility that the precise nature of occupation will have changed between the time of sovereignty and the present. I would like to make it clear that the fact that the nature of occupation has changed would not ordinarily preclude a claim for Aboriginal title, as long as a substantial connection between the people and the land is maintained. The only limitation on this principle might be the internal limits on uses which
land that is subject to Aboriginal title may be put, i.e., uses which are inconsistent with continued use by future generations of Aboriginals.'
The activities or practices may be a modern form of exercise of those laws and customs: see Mabo (No 2) per Deane, Gaudron JJ at CLR 110; per Toohey J at CLR 192; R v Van der Peet per Lamer CJ at 553. There is universal acknowledgement of this fact where traditional rights and culture of minority indigenous and tribal people are recognized and respected by a supervening community. Lansman v Finland, Communication of Human Rights Committee No 511/1992, UN DOC CCPR/C/52/D/511/1992 (1994) at para 9.3. It will be immaterial that those laws and customs have undergone change since sovereignty, provided that the general nature of the connection between the indigenous people and the land remains: see Mabo (No 2) per Brennan J at CLR 70. The communal rights exercisable under native title, and the rules governing the exercise of those rights, may be varied from time to time according to the practices or customs now observed by the community based on traditional laws or customs: see Mabo (No 2) per Deane, Gaudron JJ at CLR 110. If native title has continued since the assertion of sovereignty the rights available under that title, and the persons who may exercise those rights, will be ascertained by reference to practices that are based on traditional laws and customs, not by inquiring whether the traditional practices observed today are in the same form as before as if frozen in time. Aboriginal, or native title, as recognised by the common law shares the capacity of the common law to evolve and mould as circumstances require. An indigenous society does not surrender native title by modifying its way of life: see Mabo (No 2) per Toohey J at CLR 192. The Aboriginal laws, customs and traditional practices on which native title is based have always been dynamic, not static."
338 Whilst I am in general agreement with the observations of Lee J, putting to one side the issue of extinguishment of native title, I have some difficulty with his Honour's suggestion that native title can "evolve and mould as circumstances require". I can accept the general premise stated by his Honour that the change, over time, of traditional law and custom does not necessarily result in the loss of native title. Whilst the content of native title might alter to reflect changes in traditional custom or law prior to sovereignty, the title of the Crown to a particular area of land is burdened by the native title and the native title rights and interests that are possessed by the community ascertained to have a pre-existing native title to the land at the date of sovereignty (Mabo at 52 per Brennan J). Thus, the definition of the content, nature and incidents of native title is of critical importance as it is that title that survives the Crown's sovereignty and inures for the benefit of the community possessing the title and of the descendants of that community.
339 The matter that appears to be critical after the acquisition of sovereignty is the survival of the native title that burdened the Crown's sovereign rights or radical title. Survival depends on whether the community's connection to the land has been substantially or generally maintained thereby enabling the native title to remain in existence. I will endeavour to explain that requirement. Loss of native title arises from the loss of "connexion" with the land: see Mabo at 59-60 per Brennan J. Thus, after the content of the native title, including the rights and interests derived from it, is ascertained the enquiry moves to determining whether:
· the community or group possessing the title has continued to acknowledge the laws and, so far as practicable, to observe the customs whereby the traditional connection with the land has been "substantially" or "generally" maintained with the consequence that the traditional community title of that group can be said to remain in existence; or
· any "real acknowledgment" of traditional law and, as far as it is practicable to do so, any "real observance" of traditional customs has ceased with the consequence that the traditional laws and customs on which the traditional connection was founded have been abandoned and the native title has ceased to exist.
340 The central issue in relation to the cessation of native title in that context relates to the extent to which the traditional connection to the land has been maintained. In that regard Brennan J (at 60) stated:
"Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown's radical title expands to a full beneficial title, for then there is no other proprietor than the Crown."
341 In Mabo cessation did not prove to be a problem for, as Brennan J (at 60-61) observed:
"…the fact is that strangers were not allowed to settle on the Murray Islands and even after annexation in 1879, strangers who were living on the Islands were deported. The Meriam people asserted an exclusive right to occupy the Murray Islands and, as a community, held a proprietary interest in the Islands. They have maintained their identity as a people and they observe customs which are traditionally based."
342 The requirement of traditional observance "so far as it is practicable to do so" introduces two difficult concepts. The first is that the qualification of "practicability" acknowledges that laws and customs undergo change over time: see Mabo at 70 per Brennan J, at 110 per Deane and Gaudron JJ and at 192 per Toohey J. The theme common to each of these passages is that, as was stated by Brennan J (at 70), the change in traditional law or culture loses its materiality "provided the general nature of the connexion between the indigenous people and the land remains". The equivalent proviso, as expressed (at 110) by Deane and Gaudron JJ, was that the changes "do not diminish or extinguish the relationship between a particular tribe or other group and particular land". Toohey J (at 192) appears to be more restrictive in that his Honour required continuity of the "fact of occupation" although that requirement was specifically stated to be in the context of a contention that the Meriam people, whose occupation was continuous, no longer possessed title because they have "adopted European ways".
343 Mabo establishes that it is the maintenance of the general connection to the land, rather than of the particular occupancy or use of the land that founded native title or of any particular laws and customs, that prevents the cessation of native title. Thus, the enquiry into cessation of native title requires determination of whether the claimant group no longer possesses the native title and the rights and interests in land which burdened the Crown's radical title as a result of the traditional connection with the land not being "substantially maintained" or, put another way, as a result of the "general nature of the connection" between that community and the land no longer remaining: see Mabo at 59-60 and 70 per Brennan J.
344 The second difficult concept relates to the circumstances in which it might be said that there has been loss of connection by reason of an "abandoning of law and customs based on tradition" (Mabo at 60 per Brennan J) and therefore non-observance of those traditions. Plainly, abandonment does not arise where non-observance of laws and customs occurs in circumstances where a requirement of effective observance is unrealistic. Prior to the decision in Mabo, the common law did not recognise any native title right or interest of the indigenous population in Australia in traditionally occupied land: see the Native Title Act case at 431-432. It would "perpetuate injustice" if the courts, when considering the issue of continued observance of custom, failed to give due recognition to the fact that prior to Mabo the prevailing notion of terra nullius characterized:
"…the indigenous inhabitants of the Australian colonies as people too low in the scale of social organization to be acknowledged as possessing rights and interests in land." (Mabo at 58 per Brennan J)
345 Further, as was said in the joint judgment in the Native Title Act case at 431-432, the judicial treatment of the desert as "uninhabited" resulted in Aboriginal title to land being "ignored". Finally, as was pointed out by Senior counsel for the claimant group, from when sovereignty was acquired by the British Crown until the decision in Mabo it was not open, legally or practically, to the indigenous people to require that settlers recognise or respect their traditional law or customs. Thus, when the issue of continued acknowledgment or observance of laws and customs in relation to land arises for consideration, the extent to which that acknowledgment or observance has diminished or changed may require some consideration of whether the diminution or change falls short of abandonment but rather, came about by reason of conditions, including non-recognition of any native title, which were externally imposed on the indigenous population. As was pointed out by Brennan J in Mabo at 64, one reason for the requirement of a "clear and plain intention" to extinguish native title was the gravity of the consequences to indigenous inhabitants of the extinguishment of their traditional rights and interests in land. The same consideration dictates that a decision that indigenous inhabitants have lost the general nature of their connection to their land should not be arrived at lightly.
346 A difficult question also arises as to whether a general loss of connection to land necessarily results in the cessation of all native title rights and interests including those that have continued to be exercised. It would be anomalous for a general loss of connection to necessarily result in the loss of a native title right and interest that continued to be exercised in accordance with traditional law and custom. Similarly, it would be anomalous if the continued observance of a traditional right or interest but the abandonment of the general traditional connection with land permitted retention of all the original native title rights and interests. In my view, the answer to the question is to be found in the definition of the native title rights and interests that burdened the Crown's title: cf Grattan and McNamara, "The Common Law Construct of Native Title" (1999) 8 Griffith Law Review 50 at 71-72. For example, where the title is defined to include exclusive occupation and usufructuary rights, abandonment of the customs and therefore the connection that gave rise to the exclusive occupancy title, may not have also resulted in abandonment of the customs, and therefore the connection, that gave rise to the usufructuary rights. As this issue was not considered in Mabo the general statements on maintenance of connection should not be treated as foreclosing a situation where there may be loss of connection with the land in respect of some, but not all, native title rights and interests possessed in respect of the land. My view in that regard is consistent with the analogous concept of partial extinguishment of native title rights that is, of some rights that are inconsistent with a statutory grant but not of others that are not inconsistent with such a grant: see Mabo at 69 per Brennan J and Wik at 132 per Toohey J.
347 Accordingly, the issue of loss of connection to land involves difficult questions of fact and of degree. The difficulties are exacerbated by the fact that customs and laws of the indigenous people were not recorded in written form and were little understood by the colonial society with whom the indigenous people came into contact. When oral evidence of the customs and laws conflicts with general historical records the difficulty is further heightened. Lamer CJC in Delgamuukw at 231 observed that the question is ultimately one of weight. However, assessments of the weight to be given to a general historical record or account, when compared with oral history, are imbued with problems of their own.
348 Traditionally, Anglo-Australian culture has placed greater value on written material than on oral accounts. Oral accounts are often considered to be subjective in comparison to written records' assumed objectivity and the spoken word is understood as being susceptible to modification over time as it is retold from one person to another: see Gray J, "Saying It Like It Is: Oral Traditions, Legal Systems and Records" Archives and Manuscripts 26:2 (1998) 248. In comparison, the written word tends to become immutable once recorded, less vulnerable to change and strengthened each time it is relied upon as authority.
349 Thus, in Delgamuukw the trial judge treated oral history as only confirmatory evidence. That led Lamer CJC to observe (at 236), in the Canadian context, that such an approach would have the consequence that:
"…the oral histories of Aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system"
350 As Lamer CJC said (at 231) courts hearing indigenous peoples rights litigation have had to "come to terms with the oral histories of Aboriginal societies". See also Mason v Tritton at 588-589 per Kirby J.
351 In Shaw v Wolf (at 130-131) I expressed the need for judicial caution in acting on a general historical account as evidence disproving a version of history or of ancestry based on oral history. Further, it is desirable for the courts to consider whether the historical record or account of observers at the time, whether trained or untrained, is not invalidated by a particular preconception, bias or prejudice of the author. After all, the fiction of terra nullius was maintained by the common law until Mabo in part, by reason of historical preconceptions in relation to Aboriginal society in Australia.
352 I have confined my discussion to date to native title as recognised and protected by the common law. However, since the enactment of the NTA, native title is recognised and protected as a statutory right under that Act.
(b) The Native Title Act
353 The NTA was enacted to recognise and protect native title recognised by the common law: ss 3, 10 and 223. It binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and Norfolk Island (s 5) and extends to the coastal sea of "Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973 (Cth) ("the SSLA") (s 6). "Coastal sea" has the meaning given by s 15B(4) of the Acts Interpretation Act 1901 (Cth), being the territorial sea of Australia, the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory and includes the airspace over, and the seabed and subsoil beneath, any such sea.
354 Section 223(1) of the NTA defines native title:
"223(1) The expression 'native title' or 'native title rights and interests' means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
(2) Without limiting subsection (1), 'rights and interests' in that subsection includes hunting, gathering, or fishing, rights and interests.
(3) Subject to subsection (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression 'native title' or 'native title rights and interests'."
355 The definition adopts the language used by Brennan J to describe native title in Mabo at 57-59.
356 A "determination of native title" was provided for by s 225:
"225 A 'determination of native title' is a determination of the following:
(a) whether native title exists in relation to a particular area of land or waters;
(b) if it exists:
(i) who holds it; and
(ii) whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and
(iii) those native title rights and interests that the maker of the determination considers to be of importance; and
(iv) in any case - the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests."
357 Section 225 sets out minimum, rather than exhaustive, requirements for a determination under the Act. Clearly, in determining whether native title as defined in s 223(1) exists, the Court must ascertain and define the content and incidents of the native title that it finds exists in order to discharge its other functions in relation to the determination.
358 Subject to contrary intention, s 253 defines "land" as including the airspace over, or subsoil under, land but does not include waters. The definition of "waters" includes:
"(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or
(b) the bed or subsoil under, or airspace over, any waters (including the waters mentioned in para (a))."
359 Mabo provided the conceptual framework for native title under the NTA which, by ss 223, adopted the conditions stated in Mabo for recognition of native title by the common law.
(c) Conclusions
360 It follows from the foregoing discussion that the matters required to be considered in order to establish a claim to communal native title in a matter arising under the NTA are as follows.
1. The Court must ascertain and define the content, nature and incidents of the native title and of the native title rights and interests in land that are proved to exist at the date upon which the Crown acquired radical title or sovereignty in respect of a particular area of land or waters. The native title is to be ascertained by reference to the traditional connection between the indigenous group ("the relevant community") and the land or waters at that date. That connection will be derived from the occupation, presence upon or use of the land or waters in accordance with traditional laws acknowledged and the traditional customs observed by the relevant community. As title is to be ascertained by reference to the traditional laws and customs of the relevant community it is immaterial whether the common law might classify the native title as proprietary, usufructuary or otherwise. The native title, and the rights and interests, so ascertained constitute the native title, possessed by the relevant community, which burdened the Crown's radical title.
2. The relevant community, and the area of land or waters in respect of which native title exists, are to be ascertained and identified as far as is possible or practicable by reference to the traditional law and customs of the indigenous persons possessing native title.
3. Native title only inures for the benefit of the relevant community and descendants of the relevant community. As far as is practicable, descent is to be ascertained according to the laws and customs of the relevant community. Descent from ancestors, who were members of that community, is not to be established by a narrow or technical approach to that issue.
4. Native title, and the native title rights and interests in land or waters, possessed by the relevant community will remain in existence if the general nature of the traditional connection (upon which the title or rights and interests were founded), between the community and the area of land or waters the subject of the native title, remains. That will occur where the community, or its descendants, have continued to acknowledge the laws and, so far as practicable, observe the customs based on its traditions whereby the traditional connection with the land has been substantially maintained. The title will cease to exist upon the death of the last of the descendants of the relevant community.
5. Any native title proved to exist may be extinguished by operation of law. Thus, a legislative or executive act that expresses or exhibits a clear and plain intention to extinguish native title, or a native title right or interest, will extinguish it. However, such an intention is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title.
5. NATIVE TITLE RIGHTS AND INTERESTS - THE TERRITORIAL SEA
(a) The issue
361 A central issue in the appeals is whether the NTA recognises and protects native title rights and interests in relation to the territorial sea and seabed. Counsel for the Commonwealth (supported by the Northern Territory and the fishing industry parties), in reliance upon R v Keyn (1876) 2 Ex D 63, contended that:
· as the common law only operates within the territory of Australia that is, to the low water mark of the mainland and the offshore islands, it cannot and does not recognise the native title rights or interests claimed by the claimant group in respect of the area beyond that point (that is, in the territorial sea);
· a condition for a determination of a native title right or interest under the NTA is that the right or interest is recognised by the common law: see s 223(1)(c);
· the acquisition of sovereignty over the territorial sea by the Crown in right of the Commonwealth under international law was not accompanied by the vesting of radical title in the Crown and was not burdened by native title;
· as the claimed area is beyond the low water mark the rights or interests claimed are not recognised by the common law and therefore cannot be recognised or protected under the NTA.
362 The Commonwealth and the fishing industry parties also contended that the non-exclusive native title rights found by his Honour were no different to the public rights to navigate and to fish exercised under the common law and in accordance with fisheries legislation operating from time to time in relation to the claimed area and were therefore subsumed into or merged with those rights. It is appropriate to state at the outset that I do not accept that contention. The issue is whether the rights claimed are established as native title rights; if they are, they are entitled to recognition and protection under the NTA (including s 211) irrespective of whether the public have similar rights.
(b) The reasoning of Olney J - s 223(1)(c)
363 The reasoning of Olney J (82 FCR 547-551) in rejecting those contentions may be summarised as follows.
364 The NTA extends to the coastal sea of Australia and to any waters over which Australia asserts sovereign rights under the SSLA: see ss 6 and 253 of the NTA and ss 15B(1)(a) and (4) of the Acts Interpretation Act 1901 (Cth). Thus, the NTA discloses an intention to recognise and protect native title in accordance with the Act, both onshore and offshore. The whole of the waters within the outer boundary of the claimed area are waters (as defined in s 253 of the NTA) over which Australia asserts sovereignty under the SSLA. New South Wales v Commonwealth ("the Seas and Submerged Lands Act case") (1975) 135 CLR 337, which upheld the validity of the SSLA, is authority for the following propositions:
· the boundaries of the former Australian colonies as at 1900 (prior to Federation) ended at the low water mark;
· the colonies had no sovereign or proprietary rights in respect of the territorial sea or the sub adjacent soil or super adjacent air space;
· the Commonwealth Parliament had the capacity to enact the SSLA in respect of the territorial sea over which Australia asserts sovereign rights pursuant to the external affairs power in s 51(xxix) of the Constitution.
365 The NTA is also a law, in part, in respect of the territorial sea and, to the extent that it operates in the offshore waters, it is the statute law, and not the common law, of Australia that is applicable. Accordingly, the NTA provided the statutory basis for recognition of native title offshore and has thereby extended and enhanced the common law concept of native title.
366 Section 223 of the NTA, which specified the conditions for establishing rights and interests which are capable of being recognised as native title rights and interests under the NTA, "describe the types of rights and interests which are encompassed within the concepts of native title" (82 FCR 551). Olney J stated that if the rights and interests claimed in relation to the sea are of a type that the common law would recognise in relation to land, in accordance with the principles established in Mabo, it would be contrary to the clear and plain intention of the NTA not to recognise and protect such native title rights and interests if they are shown to exist in relation to the coastal sea of Australia and to waters over which Australia asserts sovereign rights under the SSLA.
367 Olney J rejected the respondents' submission that as the common law, which was said to operate only to the low water mark within the territory of Australia, did not recognise a native title right or interest beyond the low water mark, the NTA also did not recognise that right or interest. His Honour (82 FCR 551) therefore rejected the construction of s 223(1)(c) contended for by the respondents that would restrict the NTA to recognising and giving effect to rights and interests in relation to an area of land and waters that are recognised by the common law of Australia.
368 Olney J concluded that the Commonwealth's exercise of legislative power in enacting the NTA gave statutory recognition to native title in the coastal sea provided the conditions for recognition in s 223(1) had been met. As it was sufficient for the purposes of s 223(1) that the common law need only recognise the type or kind of right and interest claimed as a native title right and interest it was not relevant that, as a result of Keyn the common law could not recognise, give effect to or protect that interest beyond the low water mark.
369 Accordingly, the claimant group's native title in respect of the claimed area was held to be a statutory title brought into existence, as such, upon the enactment of the NTA rather than a native title recognised and protected at common law and therefore the NTA. His Honour's view (82 FCR 591) appeared to be that the statutory title recognised a pre-existing, de facto, but previously unenforceable, native title.
(c) Reasoning on the appeal - s 223(1)(c)
370 Section 223(1) contains three elements each of which operates as a precondition to native title:
· the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders (s 223(1)(a));
· the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters (s 223(1)(b)); and
· the rights and interests are recognised by the common law of Australia (s 223(1)(c)).
371 The initial question of statutory construction arising on the appeals, is whether s 223(1)(c) is concerned with the common law's recognition of the right or interest claimed in respect of a particular area of land or waters or only with the type or kind of right or interest claimed.
372 The former construction, contended for by the respondents before Olney J and on appeal, would require the Court to determine whether the right or interest claimed in the particular area of land or waters is recognised by the common law of Australia. The problem with that interpretation is that it appears to render redundant the other two pre-conditions for recognition in ss 223(1)(a) and (b). The latter construction, contended for by the claimant group and accepted by Olney J, requires that words be read into s 223(1)(c) if it is to be read as requiring only that "the type or kind" of interest claimed be recognised by the common law of Australia.
373 The resolution of the construction issue was significant because if Keyn was applied, the common law does not apply beyond the low water mark of the islands and the Northern Territory and therefore (so it was said) native title in the territorial sea within the claimed area was not capable of recognition by the common law.
374 The Prime Minister, Mr Keating, in the Second Reading speech on the Native Title Bill 1993 (Commonwealth, Hansard, House of Representatives, 16 November 1993, 2879) explained, accurately in my view, the Commonwealth's approach to native title as reflected in the NTA:
"… native title is derived from the traditional laws and customs of indigenous people. These may vary considerably across Australia. This bill does not codify native title rights. Rather it provides that, in determining native title claims, the federal or state bodies involved will ascertain the rights in each particular case. Because the foundation of our position is acceptance of the High Court's decision, the bill protects native title to the maximum extent practicable."
375 Mabo's case, although concerned with a specific claim to native title to land held under an established land holding system on an offshore island, establishes the conditions for recognition of native title to other claims, whether on the mainland or to the sea or the seabed. However, as was said in the Second Reading speech, the NTA did not "codify native title rights"; rather, those rights were left by the legislature to be determined by the Court on a case by case basis. Accordingly, as was observed by Mason CJ, Brennan, Dean, Toohey, Gaudron and McHugh JJ in the joint judgment (at 452) in the Native Title Act case:
"The common law concept of 'native title' is incorporated into the definition contained in s 223(1) of the Act…"
376 Their Honours (at 452) also said:
"[the NTA's] operation must be ascertained not only from its terms but from the circumstances in and upon which the Act takes effect and the change it makes in the law. Under common law, as stated in Mabo [No 2], Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown. The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown's (or a statutory authority's) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title. Three aspects of the operation of the Native Title Act are of central importance to its constitutional character: the recognition and protection of native title, the giving of full force and effect to past acts which might not otherwise have been effective to extinguish or impair native title and the giving of full force and effect to future acts that might otherwise be effective to extinguish or impair native title."
377 In the joint judgment in the Native Title Act case (at 454) their Honours, having identified the protection given by the NTA to native title, said of "valid acts" which had extinguished or impaired native title:
"An act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act. Such an act neither needs or is given force and effect by the Act."
378 It is apparent that the NTA was intended to recognise native title that was recognised by the common law of Australia and to protect the native title so recognised, "to the maximum extent practicable".
379 Recognition by the common law, as the foundation for recognition under the NTA, is apparent from the preamble, s 223 and the Second Reading speech.
380 In general, statutory recognition of native title under the NTA was to be co-extensive with the common law's recognition of native title. As was said in the joint judgment in the Native Title Act case (at 488):
"As native title is a concept of the common law, a claim in respect of native title might be thought not to arise under a law of the Commonwealth. But an application in respect of native title under the Act (ss 61, 74, 81) is a claim in respect of the rights and interests defined as native title by s 223 and protected by s 11(1) subject to the provisions imported by s 11(2). Recognition of those rights and interests by the common law is an element of the statutory definition (s 223(1)(c)) of native title but the need to establish that element does not deny to an application the character of a claim made under a law of the Commonwealth."
381 Section 223 adopts the three elements required by the common law for recognition of native title. If the elements are established in respect of a native title claim relating to a particular area of land or waters then the determination of native title to be made under s 225 of the NTA ensures that the title enjoys the enhanced statutory protection provided by the NTA. However, if a claim does not satisfy any of the three elements of s 223(1) it must fail.
382 The first element (in s 223(1)(a)) is that the rights and interests claimed are possessed under the traditional laws and customs of the claimant group. This element is concerned with the requirement that the rights and interests claimed were (at the time the native title rights and interests burdened the Crown's title) and are (at the time of the determination of the native title rights and interests) possessed under traditional law, or observed under traditional custom. As was said by Brennan J in Mabo (at 60) it is important that the tide of history has not washed away any real acknowledgment of traditional law and any real observance of traditional customs. In observing that in such cases the foundation of native title has disappeared his Honour said:
"A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition."
383 The second element (in s 223(1)(b)) is the requirement that the indigenous peoples by the laws and customs in question have "a connection with the land or waters". As was said in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Fejo (at 128):
"The rights of native title are rights and interests that relate to the use of the land by the holders of the native title."
384 Use, or enjoyment, of land or waters can be expected to reflect a traditional spiritual, cultural and social connection between the indigenous community and the land or waters: see Yanner at [37] and [38].
385 The third element (in s 223(1)(c)) is concerned with the common law's recognition of the "rights and interests" claimed. In Mabo Brennan J gave some examples of rights and interests that would not be recognised by the common law. His Honour said (at 43):
"…recognition by our common law of the rights and interests in land of the indigenous inhabitants of the settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system." [Emphasis added]
386 Brennan J (at 59) also observed that native title "though recognised by the common law, is not an institution of the common law". Thus, his Honour said that the general principle that the common law will only recognise a customary title if it would be consistent with the common law "is subject to an exception in favour of traditional native title". However, when discussing how native title could be protected by legal and equitable remedies, Brennan J (at 61) said:
"… native title, being recognized by the common law (though not as a common law tenure), may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual. The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws and customs are not so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld." [Emphasis added]
387 Another example of rights and interests that are not recognised by the common law are those that have been extinguished "by a positive act which is expressed to achieve that purpose generally": see the Native Title Act case at 422, see also Mabo at 15, 51, 67, Western Australia v Commonwealth at 422, Wik at 84 and Fejo at 126-127. Non-extinguishment of native title, which is a requirement for common law recognition of native title, will usually relate to a particular area of land or waters. That issue will arise under s 223(1)(c) because extinguishment, being a question of law, may nevertheless result in an extinguished native title right or interest which, in fact, has continued to be possessed under traditional laws and customs under s 223(1)(a) and has the requisite connection with land or waters under s 223(1)(b): see Yanner at [107] and [123] per Gummow J. Thus, extinguishment by legislative or executive act will commonly arise in respect of a particular area of land or waters and will result in the failure of a native title claim as a result of the right or interest claimed not being recognised by the common law under s 223(1)(c). Extinguishment as a result of a lease granted prior to the Racial Discrimination Act 1975 (Cth) in respect of a particular area of land which is inconsistent with the continued or unimpaired enjoyment of native title in respect of that land, affords an example of an interest in relation to a particular area of land that would not be recognized by the common law under s 223(1)(c).
388 The claimant group contended that extinguishment is to be determined under s 225(a), rather than under s 223(1) as part of a determination of whether native title "exists". In my view any determination under s 225 depends upon and follows from a finding under s 223(1) that native title, as defined in the sub-section, exists in respect of the area claimed. Thus, issues of extinguishment arise as a result of findings made under s 223 rather than under s 225.
389 Further, the issue of whether a type or kind of right or interest is recognised by the common law may depend on how the right or interest is classified. A "right" to fish may result in recognition or non-recognition depending on whether the right relates to an inland lake or river, tidal waters or the high seas. Thus, often it is only when the right or interest claimed is related to a particular area of land or waters that a determination can be made as to whether it is recognised by the common law.
390 Approaching the meaning of s 223(1)(c) as a question of construction, having regard to the context in which the NTA was enacted and its purpose, the reference in s 223(1)(c) to "the rights and interests" in my view is a reference to the rights and interests being claimed in relation to a particular area of land and waters. Whilst there is some force in the submission that, on that interpretation of s 223(1)(c), s 223(1)(a) and (b) might be unnecessary, the preferable view is that the legislature has sought to ensure that each of the three elements required to establish native title is separately identified and established as a precondition to a finding of native title in a particular case.
391 Subject to one important qualification, it is difficult to discern anything in the NTA (including the preamble) or the Second Reading speech that suggests that, in general, recognition of native title under the NTA was intended to extend beyond the conditions stated in Mabo for recognition of native title under the common law. The qualification is that it is implicit in the NTA, but in particular ss 6, 223 and 225, that native title can exist in "waters" (as defined in s 253) notwithstanding that:
· certain waters, such as the sea, cannot be occupied, possessed or owned in the same way as land;
· the Crown may not have acquired radical title to the "waters" constituting the territorial sea upon the acquisition of sovereignty in respect of the sea.
392 The alternative construction contended for by the claimant group accepts that s 223(1)(a) and (b) require the pre-conditions there referred to be satisfied in relation to a particular area of land or waters, but not s 223(1)(c) which, so it is said, is concerned with a different matter, namely, whether the nature of the rights and interests claimed are such that they are rights and interests capable of being recognised by the common law or are of a kind that the common law will recognise. If either of those elements is satisfied then it is contended that a determination is to be made that native title exists in relation to the particular area of land or waters. In my view, the alternative construction extends native title beyond that which the common law recognises without statutory support for doing so.
393 However, Olney J relied on a number of factors in concluding that there is statutory support for s 223(1)(c) to be only concerned with the nature of rights or interests capable of recognition under the common law. First, his Honour observed (82 FCR 548) that the NTA discloses an intention to recognise and protect native title in accordance with the Act, both onshore and offshore. Further, his Honour observed that s 6 of the NTA makes it quite clear that the Act is to extend to the greatest possible area of the coastal sea by extending to "any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act". I accept these observations as well as his Honour's further observation that native title rights, if proved, are capable of recognition in relation to those seas and waters with the consequence that s 6, coupled with the recognition of native title accorded by s 10, ensure that the NTA provided a statutory basis for recognition offshore. Although the NTA provided for statutory recognition onshore and offshore, and thereby accepted that native title rights and interests can exist offshore, that provision is entirely consistent with a legislative intent that, to the extent to which native title can be established under s 223 in respect of a particular area of land or waters as defined (that is, if proved), the NTA will give its recognition and protection to that title.
394 His Honour also concluded (82 FCR 551) that the NTA:
"extended and enhanced the common law concept of native title."
395 But the examples relied upon (the restriction imposed upon future extinguishment of native title (see ss 11(1) and 238) and the scheme of non-extinguishment for a "permissible future act" (see ss 23(3), (4), 25(1), 46 and 47(3)) are concerned with conduct engaged in after the enactment of the NTA which, without statutory protection,might have extinguished native title under the common law and therefore the NTA. Thus, the provisions referred to by his Honour relate to the enhancement of the protection available to native title under the NTA rather than to the conditions for recognition of that title: see generally the Native Title Act case at 453-459. Thus, it is more accurate to say that the NTA has extended and enhanced the common law concept of native title by its enhanced protection of native title, whether in land or waters, rather than by any general extension of the circumstances in which native title will be recognised. The enhanced protection and the mechanisms provided for the determination of native title facilitates the certainty suggested on p 1 of Pt A of the Explanatory Memorandum accompanying the Native Title Bill 1993.
396 I agree with his Honour's observation (82 FCR 551) that it is inconsistent with the thrust of the legislation for the requirement expressed in s 223(1)(c) to impose "a territorial limit in relation to the recognition of native title". However, I do not agree with his Honour that that is the effect of s 223(1)(c). Whilst it is a separate question whether territorial limits on native title might be imposed by the common law, assuming for present purposes that there is such a limitation, in my view if that consequence arises as a result of the conditions stated in Mabo not being met in respect of a particular area of land or waters that is consistent, rather than inconsistent, with the purpose of s 223(1). I also respectfully disagree with his Honour's concluding observation that it would be contrary to the intention of the Act to recognise and protect native title rights and interests offshore if s 223(1)(c) were to be construed as limited to areas "where the common law of Australia applies". I am of the view that the general intention of the NTA is to protect native title rights and interests that are recognised by the common law in any particular area of land and waters to which the NTA extends.
397 Thus, the Commonwealth, and the other respondents supporting the Commonwealth, are correct in their contention that his Honour erred in his construction of s 223(1)(c). Save for the qualification that under the NTA, native title rights and interests can exist in "waters" it remains an essential element in establishing native title that the rights and interests claimed in relation to a particular area of land or waters are rights and interests recognised by the common law of Australia.
398 An alternative approach to the construction of s 223(1), which has found favour with Beaumont and von Doussa JJ, is to regard the NTA as creating, as at 1 January 1994, a new statutory native title in respect of land and waters unfettered by any criterion for its recognition based upon or related to the date upon which the Crown acquired sovereignty in respect of the particular area of land or waters. Thus, the date of sovereignty criterion (which, in my view, would arise under s 223(1)(c)) is replaced by a simple requirement that the native title right or interest be possessed at 1 January 1994 by the claimant community in accordance with its traditional laws and customs ("the tradition based approach").
399 The major premise of the tradition based approach appears to be that it is implicit in the opening words of s 223(1) that the legislature recognised and confirmed that, as native title survived the acquisition of sovereignty and constituted a burden on the Crown's title or sovereign rights, the only native title rights and interests that constitute the subject matter of the sub-section are rights and interests that have not been extinguished or have not lapsed. Accordingly, both the acquisition of sovereignty and the burden of native title on the Crown's radical title or sovereign rights no longer remain matters that call for consideration in the determination of native title or native title rights and interests in accordance with s 223(1).
400 I have some difficulty in accepting the construction given to the words "rights and interests" in the opening words of s 223(1). In my view those words are introductory to the requirements set out in sub-sections (a), (b) and (c) which, when satisfied, will result in the relevant native title rights and interests being recognised and protected as legal rights and interests under the Act. Consistently with Mabo the rights and interests referred to in s 223(1)(a) and (b) refer to "rights and interests", possessed in accordance with Aboriginal law and custom, that are only recognised and protected as legal rights and interests when the requirement in s 223(1)(c) is satisfied: see Fejo at 128. Thus, purely as a matter of construction I regard the introductory words as referring to no more than the rights or interests that meet the requirements of sub-sections (a), (b) and (c) and do not regard them as referring to unextinguished legal rights or interests. The latter interpretation would require that additional words be read into the section and would also give the same words different meanings in different parts of the same sub-section.
401 The tradition based approach results in what, in my view, amounts to a significant change to the conceptual basis for the common law's recognition and protection of native title as a jural right akin to a property right or interest. As I will endeavour to explain it would be a significant step to eliminate from the determination of native title under the NTA any consideration of the native title that burdened the Crown's title or sovereign rights upon its acquisition of sovereignty over the relevant area of land or waters.
402 A critical finding in Mabo was that native title, in the form of a jural right recognised by the common law, only survived the acquisition of sovereignty by the Crown over the relevant land as it was recognised by the common law to be a burden on Crown's radical title to that land. The jural right was thereafter able to be extinguished by operation of law or may lapse as a result of the loss of the traditional connection with the land upon which the native title was based. It followed that the native title that burdened the Crown's radical title could not be expanded, for example, by post sovereignty use or occupation by the relevant indigenous community of other land.
403 Under the tradition based approach the native title is now to be determined as at the date of its creation pursuant to the NTA, being 1 January 1994. Provided it is based on "traditional" use or enjoyment of land at that date it may differ substantially in area, nature and content from the native title (if any) in existence at the date of sovereignty.
404 Some anomalies might arise. For example, in 1824 in a particular area of waters adjacent to the Northern Territory, fishing activities might have been limited to traditional fishing by dug out canoe within, say, 1 nautical mile off the sea-shore. Over time the traditional fishing is likely to have extended to a more modern form, progressively extending the area of the activities outwards to, say, 12 nautical miles offshore as at 1 January 1994. Under the conditions laid down in Mabo native title was limited to a claim for the 1 nautical mile offshore area. As a critical criterion under the tradition based approach is that fishing activities must as at 1 January 1994 constitute observance of traditional law or custom, the title would be capable of expanding progressively to the 12 nautical mile offshore area by that date.
405 A further possible anomaly is that the tradition based approach can embrace observance of traditional laws and customs that first evolved after the change in sovereignty. Such laws and customs would not give rise to recognition of native title by the common law under Mabo. Whilst a law or custom in existence prior to European contact (and therefore the change of sovereignty) will inevitably be a traditional law or custom it does not follow that traditional laws and customs cannot first evolve and possibly extend to new areas after European contact.
406 Thus, although the tradition based approach removes the onerous and difficult enquiry as to native title rights and interests in existence at the date of sovereignty and results in greater certainty to that extent, it might nevertheless create substantial uncertainty by incorporating, as a critical criterion, a tradition based title as at 1 January 1994.
407 Further, as I later explain in more detail, I do not accept that a native title right or interest possessed in fact (s 223(1)(a)) can be extinguished as a jural right prior to its recognition by the common law or by the NTA. According to the tradition based approach native title that might not have been capable of being recognised by the common law (for example, in respect of the territorial sea prior to about 1930) may have been "extinguished" as a right prior to that date. In my view native title, as a socially constituted fact, cannot be extinguished as a jural right prior to its existence as a jural right. Also, the important role of loss of "connection" with land or waters, resulting in the loss of or lapse in native title, will no longer have the same role under the tradition based approach. If a primary issue under s 223(1)(a) is whether the native title right or interest is possessed as at 1 January 1994, the washing away of native title by the tide of history (see Brennan J in Mabo at 60) must also be an enquiry as at 1 January 1994. Thus, a washing away by the "tide of history" last century will no longer necessarily result in the foundation of native title disappearing, unless that remained the situation thereafter. Although such an event is an important, and possibly critical, evidentiary step in concluding that native title may not be possessed as at 1 January 1994, it is not determinative of that issue. An answer might be that maintenance or continuity of the traditional connection with land is an implicit requirement for the tradition based approach, but the period over which the maintenance or continuity is to occur is uncertain. Once the date of sovereignty has lost its role there is no longer a commencement date for considering substantial continuity of, or loss of, connection. A general requirement of "tradition", as such, does not require its continuity since any particular date.
408 Finally, there is a problem concerning the identity of the community possessing the title. The community must be descendants or ancestors, but of whom? The answer in Mabo was the descendants or ancestors of the community possessing title as at the date of sovereignty. There is no simple answer to that question under the tradition based approach.
409 I have concluded that it is unlikely that the legislature would intend to depart so significantly from the conceptual basis for the recognition and protection of native title established by Mabo, without clearly expressing its intention to do so. The various decisions on native title in relation to the NTA, the provisions of the NTA including the preamble, the Explanatory Memorandum and the Second Reading Speech do not suggest such an intention.
410 For the above reasons I am of the view that, under the NTA, the date of sovereignty remains a fundamental element in the recognition and protection of native title.
411 However, it does not follow from the foregoing that, as I have accepted the Commonwealth's construction of s 223(1)(c), that would have the effect of preventing recognition of native title offshore by reason of Keyn. Before that contention can be accepted consideration is required to be given as to whether Keyn reflects the law in Australia in the present context and, if so, the consequences that has for an offshore native title claim. Those issues require consideration of the law applicable to the territorial sea and the inland waters within the claimed area.
(d) The territorial sea
412 In considering whether the common law applies in the area of the territorial sea, and, if so, whether it recognises native title rights and interests in respect of that area, it is necessary to consider the role of international and municipal law in relation to the territorial sea. Professor O'Connell (International Law (1965) Vol 1 524) defined the term "territorial sea" in international law as that area of water adjacent to the coast over which international law permits a littoral state (the coastal state) to exercise plenary authority, subject only to a right of innocent passage for shipping. O'Connell also stated that the territorial sea was distinct from the high seas, which lay beyond it, which remain free to the commerce and exploitation of all nations, and from internal waters which were exclusive to the littoral state. The territorial sea is also distinct from internal waters, or as it is sometimes called "inland waters", which are those areas of water, including parts of the sea under the full sovereignty of the territorial state (including bays, gulfs, estuaries and all sea areas on the landward side of the baseline from which the territorial sea is determined) which are not subject to a right of innocent passage for shipping: see Halsbury's Laws of England (4th ed, 1977) Vol 18 at [1454].
413 It is clear from the decisions in Keyn and the Seas and Submerged Lands Act case that as at the end of the 19th Century, save as was otherwise provided by legislation, under the common law the territory of the coastal state included its internal waters but otherwise was regarded as extending only to the low water mark, immediately beyond which was the territorial sea or waters which were the province of international, rather than municipal, law. Barwick CJ, in Bonser v La Macchia (1969) 122 CLR 177 at 192, observed that it was a misconception to regard the territorial limits of the former Australian colonies as extending to the territorial sea. His Honour drew a distinction between the idea that "the colonies had territorial waters specifically under their authority as such, as distinct from a plenary legislative power to make laws for the peace, order and government of the colony which would authorise some legislation to operate in and over the adjacent high seas". See also Port MacDonnell Professional Association Inc v South Australia (1989) 168 CLR 340 at 370-372.
414 The claimant group contended that, for the purposes of recognition of native title under ss 6, 10, 223 and 225 of the NTA, international law's recognition of Great Britain as having imperium and dominium over the territorial sea from 1824 was sufficient to result in native title burdening or qualifying the sovereign rights of Great Britain (and subsequently Australia) in respect of the sea. The Commonwealth's riposte was that, at all material times, the territorial sea was and remained a matter of international, rather than municipal, law and save to the extent that the common law was expressed to apply in the territorial sea by specific legislative enactment (eg Offshore Waters (Application of Laws) Act 1985 (NT) s 3(1)(a)), it did not otherwise apply. Accordingly, so it is said, there is no basis for recognition by the common law of native title in respect of the territorial sea for the purposes of s 223 of the NTA.
415 It appeared to be common ground that under international law:
· when Great Britain acquired sovereignty over the land mass constituting the Northern Territory in 1824, the Imperial Crown acquired a territorial sea by reason of Great Britain being the internationally recognised nation State holding sovereignty over the adjacent land mass;
· when Australia acquired independent statehood, whether at Federation or thereafter, the territorial sea passed from Great Britain to the Commonwealth of Australia by the operation of principles of state succession and transfers of territory.
416 On the latter point it was accepted by a majority in the Seas and Submerged Lands Act case that as far as international law conceded any rights to the coastal state over its territorial sea, the rights were vested in the Imperial Crown prior to Federation and in the Crown in right of the Commonwealth after Federation: see 368 per Barwick CJ, 382 per McTiernan J, 468 per Mason J and 505 per Murphy J.
417 The claimant group's native title claim in respect of the territorial sea involves an intersection between native title and:
· the international law applicable to the territorial sea;
· the municipal law applicable to the territorial sea.
418 The main area of dispute relates to the consequences that follow from the matters said to be "common ground" and to the role of municipal law, and in particular the common law, in respect of the territorial sea.
(i) International Law
419 A coastal state's sovereignty over the territorial sea, but in particular the width of the territorial sea for that purpose, have long been controversial questions in international law: see O'Connell, "The Juridical Nature of the Territorial Sea" (1971) 45 British Yearbook of International Law 303. The width of the sea had its historical roots in the 'cannon shot' rule, it being generally accepted in the 19th Century that the width of the territorial sea should be the same as the ultimate range of artillery fire: see Cullen, Federalism in Action: The Australian and Canadian Offshore Disputes (1990) 11-12. During the 19th Century the three nautical mile limit for sovereignty of the coastal state appears to have become state practice with the more controversial practice involving claims to a width greater than three nautical miles: see Akehurst Modern Introduction to International Law (7th ed, 1997) at 178-179.
420 The international community made several early attempts to rationalize the law of the territorial sea under the auspices of the League of Nations. For example, in 1930 at The Hague Codification Conference, states were able unanimously to accept the coastal state's sovereignty over the territorial sea but a lack of consensus on the sea's width thwarted any attempt at codification: see generally Re Mineral and Natural Resources of the Continental Shelf (1983) 45 DLR (3d) 9 at 21-23. However the area of controversy related to whether the territorial sea extended beyond the three mile limit and not whether it extended to the three mile limit: see Brownlie, Principles of Public International Law (4th ed, 1990) at 188-190.
421 The rules of international law in relation to the territorial sea were first codified in the Convention on the Territorial Sea and Contiguous Zone 1958 (opened for signature on 29 April 1958, ATS 1963 No 12, entered into force 10 September 1964) ("the 1958 Convention"): see Pianka v The Queen [1979] AC 107 at 125. Australia ratified the 1958 Convention on 14 May 1963. Article 1 of the Convention provided that:
· the sovereignty of the state extends beyond its land territory and its internal waters to a belt of sea adjacent to its coast, described as the territorial sea;
· sovereignty was to be exercised subject to the provisions of the Convention and "other rules of international law".
422 Articles 14 and 23 in Section III set out the rules applicable to the right of innocent passage through the territorial sea.
423 It seems fairly clear that, by the end of the 19th Century, the breadth of the territorial sea conceded by international law extended to at least three nautical miles. Indeed, the Commonwealth submitted that the concession had "certainly" occurred by Federation. Although from 1900 until 1958 the three nautical mile limit over the territorial sea had been generally accepted as state practice, as at 1958 some states continued to claim an entitlement to a territorial sea beyond that limit. Disagreement on that issue resulted in the 1958 Convention not dealing with the width of the territorial sea. The first Convention to do so was the 1982 Convention on the Law of the Sea (opened for signature on 10 December 1982, ATS 1994 No 31, entered into force 16 November 1994) ("the 1982 Convention"). Australia ratified the 1982 Convention on 5 October 1994. Articles 2 and 3 of the 1982 Convention provide:
"Article 2
Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil.
1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.
2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.
Article 3
Breadth of the territorial sea
Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention."
424 Articles 17 to 26 set out the rules applicable to the right of innocent passage through the territorial sea.
425 As of 1 January 1994, 128 states had claimed a territorial sea of twelve miles or less in accordance with the 1982 Convention: see Akehurst Modern Introduction to International Law at 180. As Australia adopted the twelve mile limit pursuant to the SSLA as from 20 November 1990 it is not necessary to reach a final conclusion on whether the twelve mile limit accorded with customary, as well as conventional, international law although it is likely that it did.
(ii) Municipal law
Keyn
426 It appears to have been accepted by Olney J, primarily in reliance upon Keyn, that save for internal waters (such as Mission Bay in the Northern Territory) the limits of the territory of Australia (and therefore of the application of the common law) do not extend beyond the low water mark of the Australian mainland or the islands in the claimed area. However, Keyn was primarily concerned with the status in municipal law of the international law of the sea as at 1876. In particular, the decision in Keyn concerned the limits of the territory of England and the territorial application and jurisdiction of the common law of England as at 1876. The question arises whether the extension of the sovereignty of coastal states in respect of the territorial sea under international law and under municipal law since 1876 has resulted in Keyn no longer reflecting the law in Australia.
427 First, it is necessary to consider precisely what was decided in Keyn. Keyn was concerned with whether an English Court had jurisdiction to try a German national for manslaughter committed as a result of an offshore collision that occurred within the three mile limit of England. The answer to that question depended upon whether the English courts recognised, as a rule of international law, that the sea within that limit was part of the territory or realm of England to which it was adjacent. The minority (Lord Coleridge, Brett and Amphlett JJA, Grove, Denman and Lindley JJ) held that, since international law recognised the three mile limit and that law was a part of the law of England, the court had jurisdiction.
428 However, the majority (Cockburn CJ, Kelly CB, Bramwell JA, Lush and Field JJ and Sir R Phillimore and Pollock B) held that the court had no jurisdiction as the common law of England ended at the low water mark and did not extend into territorial waters which were governed by international law. The only international law which could be considered part of English law were those parts which could be proved to have been received into English law: see Keyn at 161 per Cockburn CJ. That reception, so it was said, could be effected by statute incorporating a rule of international law or proved by "the assent" of the nations who are bound by international law to the particular rule. Cockburn CJ (at 202-203), delivering the leading judgment of the majority, stated:
"To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express as by treaty, or the acknowledged concurrence of governments, or may be implied from established usage, - an instance of which is to be found in the fact that merchant vessels on the high seas are held to be subject only to the law of the nation under whose flag they sail, while in the ports of a foreign state they are subject to the local law as well as to that of their own country. In the absence of proof of assent, as derived from one or other of these sources, no unanimity on the part of theoretical writers would warrant the judicial application of the law on the sole authority of their views and statements. Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount of a new law. In so doing we should be unjustifiably usurping the province of the legislature."
429 Lush J (at 238-239), who agreed in the main with Cockburn CJ, observed that only an Act of Parliament, rather than international law applying beyond the low-water mark, could "enlarge the area of our municipal law."
430 Whilst some of the observations in Keyn suggest an Act of Parliament is required before rules of international law can be incorporated into municipal law, it has been generally accepted that the basic difference between the majority and the minority judgments in Keyn related to whether the law of the territorial sea had evolved to a stage where it could be received as part of the common law of England. If it had not then it could only be incorporated into English law by statute. Mason J (at 465-466) in the Seas and Submerged Lands Act case, after referring to the judgment of Viscount Haldane LC in Attorney-General (British Columbia) v Attorney-General (Canada) [1914] 1 AC 153 at 174-175, said
"… Viscount Haldane made it equally plain that the rule of international law was dynamic and that the solution which it might ultimately provide to the issue debated in Keyn's Case would turn on the future evolution of international law."
431 Sir William Holdsworth in "The Relation of English Law to International Law" in Goodhart et al, Essays on Law and History (1946) 260 at 265-266 said of the majority view in Keyn:
"In other words, it is not true to say that all the rules of international law, as and when they are evolved by the jurists, become part of English law; but only those parts which, by legislation, judicial decision, or established practice, have been received into English law."
432 The majority view in Keyn indicated that international law was not so much a part, as a source, of English law, rather than the older view that it is per se part of the law of England: see Brierley "International Law in England" (1935) 51 Law Quarterly Review 31 and Holdsworth at 267. On that issue, the majority view in Keyn prevailed in the United Kingdom. In West Rand Central Gold Mining Co Ltd v Rex [1905] 2 KB 391 Lord Alverstone CJ (at 407), delivering the judgment of the court, said that not only must the international law sought to be applied be proved by satisfactory evidence, but it must also be shown:
"… that the particular proposition put forward has been recognised and acted upon by our own country or that it is of such an age and has been so widely and generally accepted, that it can hardly be supposed that any civilised state would repudiate it. The mere opinion of jurists, however eminent or learned that it ought to be so recognised, are not in themselves sufficient."
433 Holdsworth (at 270-271) observed that Keyn established a further condition that:
"… the rule of international law must not conflict with a rule of English law. If it conflicts with a rule of English law no effect can be given to it."
434 In Chung Chi Cheung v The King [1939] AC 160 Lord Atkin (at 167-168), delivering the judgment of the Judicial Committee of the Privy Council, said:
"It must be always remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rules is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals."
435 Recently, in Nulyarimma v Thompson (1999) 165 ALR at 651-653 I discussed the acceptance in Australia of the "source" view expounded by Professor Brierley: see Chow Hung Chung v The King (1948) 77 CLR 449, 462, 470-471, 477 and 487. Dixon J (at 477) stated:
"The true view, it is held, is 'that international law is not a part, but is one of the sources, of English law' (Article by Prof. J.L. Brierly on International Law in England, (1935), 51 Law Quarterly Review, p. 31). 'In each case in which the question arises in the court must consider whether the particular rule of international law has been received into, and so become a source of, English law' (Sir William Holdsworth, Relation of English Law to International Law: Essays in Law and History, p 267)."
436 See also Mason "International Law as a Source of Domestic Law" in Opeskin et al International Law and Australian Federalism (1997) 210 at 215 and Brennan "The Role and Rule of Domestic Law in International Relations" (1999) 10 Public Law Review 185 at 186-187.
437 The majority holding in Keyn that, for the purposes of jurisdiction, the territory of the realm did not extend beyond the low water mark in England was remedied by the Territorial Waters Jurisdiction Act 1878 (UK) which extended the Admiralty jurisdiction to indictable offences committed within the territorial waters of "her Majesty's dominions". However, the holding in Keyn that the realm did not extend beyond the low water mark was accepted by the majority in the Seas and Submerged Lands Act case (at 368, 378, 465-466, 468-469, 486-487, 490-491) in which the High Court held, primarily in reliance on Keyn, that prior to Federation in 1901 the territorial boundaries of the Australian colonies ended at the low water mark and that those colonies had no sovereign or proprietary rights in respect of the territorial sea or the subjacent soil or superjacent airspace. The decision in the case was concerned with the application of Keyn as at Federation in 1901.
438 Lord Wilberforce, delivering the judgment of the majority of the Judicial Committee of the Privy Council in Pianka at 118-119, said of the opinions expressed in Keyn:
"There were a number of differing reasons given in support of each of these opinions which have proved difficult to analyse clearly. But three points, essential to the present case, are clear. First, that if the offence had been committed within the body of the county, the court of oyer and terminer would have had jurisdiction over it (per Cockburn C.J. p. 168) and conversely that, if the offence were not so committed, the courts of common law would have no jurisdiction over it
'because the commissions of the judges applied in terms only to counties, and the juries were summoned only to try cases within counties' (per Brett J.A. at p. 145, Cockburn C.J. at p. 167).
Secondly that the boundary of the county extended to lower water mark (including ports and harbours and waters inter fauces terrae), but not beyond (per Brett J.A. ibid., Cockburn C.J. at p. 162). Thirdly, that by 1876 international law conceded to coastal states extensive powers over territorial waters. The learned judges differed as to the nature of such powers, some (the minority) holding that the territorial belt is part of the 'territory' of England (there is no need here to discuss semantic difficulties as to the meaning of 'territory' and 'realm'), others differing on this point. But there was general concurrence that in any event the Parliament of the United Kingdom had legislative power as regards the territorial belt: it was because such power had not been exercised so as to bring offences committed in it within the jurisdiction of English criminal courts that, in spite of any rights the state might have under international law, the majority denied the jurisdiction claimed."
439 See also O'Connell "The Juridical Nature of the Territorial Sea" at 93-106. The third point of Lord Wilberforce, that the difference between the majority and minority in Keyn related to the nature of the powers conceded by international law to coastal states, is consistent with the observations, inter alia, of Mason J in the Seas and Submerged Lands Act case at 465-466 that the issue raised in Keyn would turn on the future evolution of international law rather than on the state of that law as at 1900.
440 Bonser concerned the legislative power of the Commonwealth to make laws with respect to "Fisheries in Australian waters beyond territorial limits" under s 51(x) of the Constitution. In considering the "territorial limits" for the purposes of s 51(x), the territorial sea off the coast of Australia, being recognised by international law as extending three nautical miles from the low water mark at the time of Federation, was not beyond territorial limits: see 190-192 per Barwick CJ, 201-202 per Kitto J, 209 per Menzies J and 212 per Windeyer J. However, when the seaward boundaries of the States at the time of Federation arose squarely for decision in the Seas and Submerged Lands Act case, as explained above, the majority holding was that under Australian municipal law the territorial boundaries of the Australian colonies at Federation ended at the low water mark and at the closing lines of the bays and gulfs and that these boundaries did not, as had been widely believed, encompass the territorial sea: see Port MacDonnell Professional Fishermen's Association Inc v South Australia at 358. Accordingly, the question arises whether, and if so as at what date after 1900, municipal law adopted and received a concession by international law of sovereign power to the coastal state over the adjacent territorial sea and whether the sea and the solum underlying it formed part of the territory of the coastal state.
Municipal law since 1900
441 In the Seas and Submerged Lands Act case a number of authorities and texts since 1900 were relied upon in support of the view that as at 1900 Keyn no longer applied. However, as was said (at 466) by Mason J, the court was not justified in discarding Keyn, inter alia, by reason of "later developments in international law". The minority, Gibbs and Stephens JJ, regarded Keyn as limited to the court's criminal jurisdiction in Admiralty and in reliance on authority (both before and after 1900) in relation to Crown ownership of the seabed in the territorial sea concluded that the colonies, and therefore the States upon Federation, had a three mile territorial sea: see 395-398 per Gibbs J and 427-431 per Stephen J. Gibbs J (at 401) observed that by the beginning of the 20th Century the view had been accepted by leading writers on international law that a coastal state had sovereignty over its territorial waters and that that view had come to be accepted by English law. Whatever might be said of his Honour's view of the position before 1900 authoritative support for the conclusion expressed by Gibbs J soon emerged after 1900.
442 In Carr v Fracis Times & Co [1902] AC 176, the House of Lords held that a seizure of ammunition in the territorial waters of Muscat occurred in the territory of Muscat. Although the breadth of the territorial sea was not delineated, Lord Macnaghten stated (at 182-183):
"[The tort] was committed in the territorial waters of Muscat, which are in my opinion … as much a part of the Sultan's dominions as the land over which he exercises absolute and unquestionable sway."
443 Although Viscount Haldane LC said in Attorney-General for British Columbia v Attorney-General for Canada at 174-175 that the meaning of the three mile limit in public international law "is still in controversy" a short time thereafter the question arose in Secretary of State of India v Chelikani Rama Roa (1916) TLR 652 where the issue for determination by the Privy Council was whether islands that had formed in the bed of the sea within three miles of the coast of Madras were the property of the Crown. Lord Shaw (delivering the judgment of the Privy Council) concluded that the bed of the sea within the three mile limit was the property of the Crown saying that the reason why the islands were the property of the Crown was because the seabed was within British territory. Lord Shaw (at 653) stated:
"The case is not complicated by any point as to geographic situation; the question whether a limit from the shore seawards should be beyond three-miles, should be the extreme range of cannon fire, or should be even more … no such question arises here. The point is geographically within even three-miles of British territory; at that point islands have arisen from the sea. Are those islands no man's land? … they are not; they belong in property to the British Crown."
444 As was observed by Stephen J in the Seas and Submerged Lands Act case at 421, Chelekani, whilst stating the law of India, did so on the basis of Scottish and English law.
445 In the same case Mason J (at 465-466) said that Chelekani was an example of how the issues raised in Keyn would turn on the "future evolution of international law". Mason J (at 466) stated:
"The decision in Chelikani's case, and indeed the concept of territorial sovereignty in the bed of territorial waters … may also be supported … as an example of the modern rule of international law as it has evolved in the twentieth century, for the concept of territorial sovereignty on the territorial sea and its solum was plainly recognised in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone (see Arts 1 and 2)."
446 Similarly, Jacobs J (at 487) observed :
"[Chelikani] reaffirms the dominion and proprietorship of the Crown in the sea which it claimed, the claim by that time being probably limited to the belt within three-miles of its land dominions. Carefully the Privy Council refrained from defining the extent of the sea so claimed but recognized that it was at least a three-miles belt."
447 In The Fagernes [1926] P 185 at 188 Hill J citing, inter alia, Chelikani said it may well be doubted if Keyn were to be applied as the law "to-day": cf on appeal The Fagernes [1927] P 311 at 323 and 324-325.
448 Decisions of Canadian courts since 1900 have also recognised the three mile limit as being within the boundaries of the coastal state under international law. In SS "May" v The King [1931] 3 DLR 15, the Supreme Court of Canada was asked to determine whether a foreign ship found within Canada's territorial waters was exempted from prosecution under the customs legislation due to entry "from stress of weather". Lamont J, delivering the judgment of the Supreme Court, stated (at 20):
"It is a well recognized principle, both in this country and in the United States, that the jurisdiction of a nation is exclusive and absolute within its own territory, of which its territorial waters within three marine miles from shore are as clearly a part, as the land."
449 This passage was cited with approval by the Judicial Committee of the Privy Council in Pianka at 122. In that case the Privy Council was asked to determine whether a resident Jamaican Magistrate had summary criminal jurisdiction over a foreign ship found in the Jamaican territorial sea. In the context of a discussion concerning the legislative competency of Parliament in relation to the territorial sea after 1876, Lord Wilberforce, delivering the judgment for the majority, cited with approval the SS "May" and a 1923 decision of the Supreme Court of the United States (Cunard Steamship Co Ltd v Mellon (1923) 262 US 100, 122 and 124) as prescribing the three mile limit of the territorial sea. Although Lord Wilberforce's comments were directed towards the "undoubted" proposition that a coastal state has jurisdiction over its territorial waters, he was clearly of the view that the limit of such jurisdiction had been three miles since late in the 19th Century:
"It being clear in 1891 if it was not clear before (cf Rolet v The Queen (1866) LR 1 PC 198…) that the territory of the colony extended to include a three-mile belt of territorial water." (at 122).
450 Subsequent authority in the United Kingdom has accepted that the coastal state had sovereignty over the territorial sea to a limit of three-miles. For example, in R v Kent Justices [1967] 2 QB 153 (affirmed in Post Office v Estuary Radio Ltd [1968] 2 QB 740), the High Court was asked to define "territorial sea" for the purposes of the Wireless Telegraphy Act 1949. The Act purported to apply to the territorial sea but did not contain a definition of the term. Whilst the majority was not prepared to acknowledge international consensus on the breadth of territorial sovereignty, Lord Parker CJ at (173) stated:
"This country has in general proceeded on the basis that territorial waters are limited to three nautical miles from the low water mark…"
451 Lord Salmon at 179, although in dissent on the issue of the date from which the territorial sea should be measured, stated:
"There can be little doubt that in 1949 the territorial waters adjacent to the United Kingdom were generally recognised, both by international law and the municipal law of this land, as being the open sea within three nautical miles of the ordinary low water mark along the coast line…"
452 The controversy over the juridical nature of the territorial sea also subsided after 1900 as treaty practice, attempts at codification and state practice tended towards consolidation of the generally accepted three mile limit. For example, Anglo-American practice continued to support the three mile limit, as did Germany, Japan and the Netherlands (see Colombos, The International Law of the Sea (6th ed, 1967) at 99). However, Scandinavia supported a limit of four miles and Spain a limit of six. Three mile limits were expressed in such treaties as Fisheries Convention between Great Britain and Denmark of 1901, the Hague Convention No VIII of 1907 on the laying of mines and the Convention between the United Kingdom and Finland regarding illicit importation of alcoholic liquors of 1933: see O'Connell, "The Juridical Nature of the Territorial Sea" at 157.
453 At its Stockholm Conference in 1928 the Institute of International Law agreed on an article defining the extent of the territorial sea as "three marine miles" which could, however, be extended when international usage justified such a recognition: see Colombos, The International Law of the Sea 6th ed at 102-103. Similarly, the International Law Association at its Vienna Conference gave approval to the three mile distance in 1926. Although the League of Nations attempted unsuccessfully to codify a maximum breadth of the territorial sea by multilateral negotiation at the Hague Conference in 1930, a majority of states (twenty including Britain, British Dominions, the United States, Belgium, China, Egypt, Germany Greece, Holland and Poland) supported a three-mile limit, whilst twelve states supported six miles and the Scandinavian states favoured a four mile limit: see Colombos', The International Law of the Sea at 104-105. Similarly, in Geneva in 1958 and 1960, whilst agreement could not be reached on a uniform limit of the territorial sea, such a result was due more to the reluctance of states to bind themselves to a limit of only three-miles (in the interests of future expansion) than because of a rejection of the three-mile limit see Colombos, The International Law of the Sea at 110.
454 At a conference on the law of the sea in 1929, Australia (as a member of the League of Nations) asserted possession of and sovereignty over its territorial sea and seabed: see Submissions of counsel for the Commonwealth in the Seas and Submerged Lands Act case at 341.
455 Australia's assertion of sovereignty over the territorial sea and the authorities to which I have referred appear to be at odds with the statement of Barwick CJ in Bonser v La Macchia (at 189) that at and "since" Federation the territorial limits of Australia did not include any part of the territorial sea or the seabed subjacent to it. If his Honour meant that Federation, of itself, did not result in Australia having sovereignty over the territorial sea, then there is no difficulty with the statement. However if, as seems likely (see the Seas and Submerged Lands Act case at 363 cf 373) Barwick CJ was suggesting that up to 1973 Australia's territory, as a coastal nation state, did not include the territorial sea, whether up to three miles or otherwise then that view finds little support in international law or the many judicial pronouncements to the contrary during the 20th Century in the common law jurisdictions. As Gibbs J observed in the Seas and Submerged Lands Act case at 403 five members of the Court in Bonser v La Macchia held that waters within three miles of the Australian shores are waters within "territorial limits" as those words are used in s 51(x). His Honour also cited Robtalmes v Brenan (1906) 4 CLR 395 at 404 and Merchant Service Guild of Australasia v Archibald Carrie & Co Pty Ltd (1908) 5 CLR 737 at 744 as accepting that the territory of the Commonwealth extended to the three-mile limit Barton ACJ in Merchant Service Guild of Australasia v Commonwealth Steamship Owners Association (1913) 16 CLR 664 at 667 also regarded the "three mile fringe off the coast" as within the territorial limits of the Commonwealth.
456 In my view the foregoing discussion reveals that by 1930 the common law had adopted and received the principles of international law that a coastal state had sovereignty over its territorial sea, of at least three nautical miles, and that sea formed part of the territory of the adjacent coastal state. Whilst attempts at agreement on the breadth of the territorial sea had not succeeded, that was on the basis that some states were claiming areas beyond, rather than less than, three nautical miles. By 1930 the principles to which I have referred had been accepted by courts in common law jurisdictions as having attained the position of general acceptance by, or assent of, the community of nations as rules of "international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decisions": see Compania Naviena Vascongado v SS Christine [1938] AC 485 at 497 per Lord MacMillan.
457 If I am in error in my conclusion that the international law governing the breadth of the territorial sea has not been adopted and received as part of the common law by 1930 then, in accordance with the principles stated in Nulyarimma v Thompson at [132] they ought to be so treated as having been received and adopted since at least 1930. Prior to the enactment of the Seas and Submerged Lands Act 1973 (Cth), which recited in its preamble that the territorial sea is "within the sovereignty of Australia", Australia had been asserting, consistently with international law, a "3-mile" territorial sea. Accordingly, international law conceded to the Crown in right of the Commonwealth of Australia a sovereignty in respect of the territorial sea, and the underlying solum, extending three nautical miles from the low water mark of the Australian mainland from at least 1930 and, under municipal law, that sea and solum has formed part of the territory of Australia since that date.
The Seas and Submerged Lands Act 1973 (Cth)
458 The SSLA was passed in order to give effect, inter alia, to the 1958 Convention. On that basis the majority in the Seas and Submerged Lands Act case (with Gibbs and Stephen JJ dissenting) held that the Act was a valid exercise of the external affairs power conferred on the Commonwealth Parliament under s 51(xxix) of the Constitution.
459 The preamble, inter alia, stated that "a belt of sea adjacent to the coast of Australia, known as the territorial sea and the bed and subsoil of the territorial sea, are within the sovereignty of Australia".
460 Section 6 of the SSLA provides:
"6. It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its
bed and subsoil is vested in and exercisable by the Crown in right of the Commonwealth."
461 Section 7 provides that the Governor-General may, from time to time, by Proclamation declare the limits of the territorial sea provided that the declaration is not inconsistent with the 1958 Convention, the relevant parts of which are contained in the Schedule of the Act. Section 3(4) provides that the territorial sea is to be taken to be extended to the limits declared by a Proclamation under s 7.
462 For the purposes of ss 6 and 7 the territorial sea is defined in s 5 to mean "the territorial sea of Australia". Section 3(2) provides that a reference to the territorial sea is a reference to that sea " so far as it extends from time to time". As explained earlier by 1930 the territorial sea of Australia had been accepted as extending three nautical miles from the low water mark. As at 1973 the Commonwealth was still asserting "a 3-mile claim" and not more as did "the United Kingdom, the United States and a number of other major countries": see Second Reading Speech on Seas and Submerged Lands Bill 1973, Commonwealth, Hansard, House of Representatives, 10 May 1973, 2007.
463 In any event as the SSLA gave effect to the 1958 Convention, subject to any contrary intention, the term "territorial sea of Australia" in s 5 should be construed by municipal courts to correspond with the meaning of the term in the Convention (s 3(1), Koowarta v Bjelke-Peterson (1982) 153 CLR 168 at 265 per Brennan J and Quazi v Quazi [1980] A.C. 744 at 808, 822) and to accord with the rules of international law (Polites v Commonwealth (1945) 70 CLR 60 at 68-69, 77, 79, 81). Accordingly, prior to 20 November 1990, when the territorial sea was extended to twelve miles by Proclamation, the width of the territorial sea was to be determined according to its width under international law. Under that law the three nautical mile limit had been accepted as minimum state practice since at least 1930 and probably earlier. If I were in error in concluding that the territorial sea fell under Australia's sovereignty under municipal law from 1930 then, on any view, it did so at the latest upon the enactment of the SSLA in 1973.
464 Accordingly, the three nautical mile territorial sea of Australia which formed part of the territory of Australia under the common law was adopted under the SSLA subject to the provisions of that enactment.
465 Prior to 9 November 1990, no Proclamation had been made under s 7 of the SSLA in respect of the breadth of the territorial sea for the purposes of s 6. However, by Proclamation made on 9 February 1983, the baseline from which the breadth of the territorial sea was to be determined in the manner set out in the Proclamation. The Proclamation, which was made in accordance with the 1958 Convention, declared that the baselines were to be drawn from the lowest astronomical tide and provided for the drawing of straight baselines in certain locations. This had the result that straight baselines were drawn between a number of islands in the claimed area. As was observed by Mason J in Raptis & Son v South Australia (1977) 138 CLR 348 at 385 generally the 1958 Convention worked no radical change and could be taken to express the relevant requirements of international law at the time. Whilst it is arguable that the Proclamation operated to extend the territorial sea outwards to some extent, I am not satisfied that the evidence as to the previous boundaries under international law enables a clear finding to be made in that regard. Consistently with the observation of Mason J in Raptis I have not treated the Proclamation as resulting in any alteration of the boundaries of the territorial sea previously established under international or municipal law.
466 By a further proclamation made on 9 November 1990 under s 7 as from 20 November 1990 the breadth of the territorial sea was extended seaward to 12 nautical miles from the baselines. It is not in dispute that the proclamations accorded with the international law of the sea and resulted in the whole of the claimed area being on the landward side of the outer boundaries of the territorial sea. The later proclamation resulted in Australia acquiring sovereignty under municipal law over the increased area of the extended territorial sea.
467 The SSLA was amended to give effect to the 1982 Convention by the Maritime Legislation Act 1994 (Cth) which, in substance, substituted the relevant portions of the 1982 Convention for the relevant portions of the 1958 Convention in the Schedule to the SSLA. The amending Act amended s 3 of the SSLA to provide that the "territorial sea" has the same meaning as in Articles 3 and 4 of the 1982 Convention. Under those articles the breadth of the sea was "up to a limit not exceeding 12 nautical miles".
468 Accordingly, pursuant to the SSLA the breadth of the territorial sea, in respect of which sovereignty was vested and exercisable by the Commonwealth of Australia:
· remained three miles from the baselines established in accordance with international and municipal law ("the three mile territorial sea");
· was extended by the Proclamation operating as from 20 November 1990 ("the twelve mile territorial sea").
469 The SSLA codified the common law to the extent that it adopted the three mile territorial sea but modified the common law to the extent that other provisions of the SSLA provided for matters that were not part of the common law.
470 The conclusions that are to be drawn from the foregoing discussion are that:
· under international law, incorporated as part of the municipal common law in Australia, between 1930 and the enactment of the SSLA in 1973 the territorial sea up to three nautical miles from the low water mark of Australia had fallen under the exclusive sovereignty of the Crown in right of the Commonwealth of Australia and formed part of the territory of the Commonwealth of Australia;
· since the enactment of the SSLA in 1973 to 20 November 1990 the three mile territorial sea had fallen under the exclusive sovereignty of the Crown in right of the Commonwealth of Australia pursuant to ss 6 and 7 of the SSLA;
· since 20 November 1990 the territorial sea under the sovereignty of the Crown in the right of the Commonwealth of Australia pursuant to ss 6 and 7 of the SSLA was extended to the twelve mile territorial sea.
471 As any native title that is recognised by the common law will burden the Crown's radical title or sovereign rights from when sovereignty is acquired it is not of importance in the present context whether the Crown for that purpose was the Crown in right of Great Britain or Crown in right of the Commonwealth. Thus, resolution of the question of Australia's statehood, as such, under international law is unnecessary.
472 The critical dates on which any native title established in respect of the claimed area first burdened the title or the sovereign rights of the Crown in respect of waters or the underlying solum in that area are:
· 1824, in respect of waters in the intertidal zone to the low water mark;
· 1863, in respect of the waters in the bays or gulfs which formed part of the Northern Territory by reason of the Letters Patent of 6 July 1863;
· 1930, in respect of the three mile territorial sea;
· 1990, in respect of the extensions resulting in the twelve mile territorial sea.
473 It is regrettable that the issue of sovereignty in respect of the sea has thrown up such an array of dates, which do not have any particular relevance to the existence or exercise of the native title rights and interests claimed by the claimant group but have much relevance to their recognition and protection under Australian law. Unfortunately, that outcome is an inevitable consequence of the law's task of "artificially" defining jural rights flowing from a "socially constituted fact" (Yanner at [37] and [38]).
(iii) Sovereignty and Jurisdiction - the territoriality principle
474 One of the ingrained postulates of both international and national law is the principle of territoriality, the jurisdiction over which "is an incident of an independent nation": see The Chinese Exclusion Case (1889) 130 US 581, 603 and Treves, "Jurisdictional Aspects of the Eichmann Case" (1963) 47 Minnesota Law Review 557 at 591.
475 The foundation for territorial jurisdiction is sovereignty. Hayne J in Joose v Australian Securities and Investment Commission (1998) 159 ALR 260 (at 263-264) observed that different legal concepts were involved in sovereignty depending upon whether sovereignty was being considered in the context of international or municipal law. Plainly the concept of jurisdiction, in the sense of a state's general legal competence under international law, is a significant aspect of state sovereignty: see Brownlie, Principles of Public International Law (4th ed, 1990) at 123 and Triggs, "Australian War Crimes Trials: A Moral Necessity or Legal Minefield?" (1987) 16 Melbourne University Law Review 382.
476 In relation to municipal law, in R v Foster; Ex Parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 at 306 Windeyer J stated:
"… sovereignty is, by the law of all countries that have inherited the common law, regarded as territorial; because territorial boundaries ordinarily mark the limits of the effective enforcement of municipal law. Territoriality (as an element in domicile, residence or presence) rather than political allegiance has by our law been recognized as the ordinary foundation of curial jurisdiction."
477 Lord Macmillan in Compania Naviera Vascongado v S.S. Cristina [1938] AC 485 at 496-497 said:
"It is an essential attribute of the sovereignty of this realm, as of all sovereign independent States, that it should possess jurisdiction over all persons and things within its territorial limits and in all causes civil and criminal arising within these limits. This jurisdiction is exercised through the instrumentality of the duly constituted tribunals of the land."
478 What is also plain, as was said by Sir Owen Dixon ("Address to the American Bar Association" (1943) 17 Australian Law Journal 138 at 139) is that the municipal law of Australia applied by the duly constituted tribunals, being the courts, is a "unit" comprising legislation and the common law which is to receive a uniform application "throughout Australia". The operation of the law as a unit throughout the territory was re-iterated by the Earl of Halsbury in Carr v Fracis Times & Co [1902] AC 176 at 181.
479 Under municipal law the exclusive jurisdiction of the coastal state over the territorial sea was undoubted: see Carr v Fracis Times & Co at 178 per Earl of Halsbury LC, 182-183 per Lord Macnaghten and Pianka at 121-122 per Lord Wilberforce, SS "May" v The King [1931] 3 DLR 15 at 20-21.
480 In Pianka (at 121) Lord Wilberforce, speaking for the majority of the Judicial Committee of the Privy Council observed that ships:
"entering territorial waters submit themselves to the jurisdiction of the coastal state: jurisdiction attaches in virtue of presence, just as with other objects within these limits."
481 Thus, it appears to be beyond question that a state's sovereignty, legal competence and jurisdiction, including the operation of its common law is, at least,co-extensive with the state's territory including its territorial sea. Indeed, it is implicit in the issue dividing the minority and the majority in Keyn that jurisdiction of the common law is to be equated with territory, the question being the limits of "the territory", or as it was there put the "realm", of England for the purpose of determining that jurisdiction. In his discussion of Keyn in the "Juridical Nature of the Territorial Sea" (at 330), O'Connell referred to Cockburn CJ's erudite and elaborate judgment which "equated jurisdiction with territory".
482 In Manchester v Massachusetts (1890) 139 US 240 the Supreme Court of the United States, accepting that the jurisdiction of the state is generally co-extensive with its territory and its legislative power, held that the state can define its boundaries within what are generally recognised as the laws of nations. Lord Wilberforce (at 122) pointed out in Pianka that the implication in that case, and in Pianka, was that:
"in extending the boundaries to the limit of the territorial sea, the state made its criminal law extend over the territorial sea."
483 In my view precisely the same can be said in the present case. As the sovereignty of the Commonwealth of Australia, whether under the common law or pursuant to ss 6 and 7 of the SSLA, extended to the territorial sea the Commonwealth made its common law "extend over the territorial sea". Thus, subject to two qualifications, as and when sovereignty vested in and was exercisable by the Crown in right of the Commonwealth in the territorial sea, the common law applied within the same boundaries.
484 The first qualification is that the application of the common law is subject to abrogation of, or modification to, the common law in relation to the territorial sea by statutes of the Commonwealth, the States and the Northern Territory. Some statutes have provided for the common law to apply in the territorial sea subject to the conditions laid down in the Act: see for example Petroleum (Submerged Lands) Act 1967 (Cth) s 9, Installations Act 1987 (Cth) s 46 and the Offshore Minerals Act 1994 (Cth) s 428. In my view whilst such statutes regulate how the common law is to apply they do not evidence a legislative intent to exclude the application of the common law from otherwise applying in the relevant areas. Statutory modification will also arise by reason of s 15(B)(1)(a) of the Acts Interpretation Act 1901 (Cth) which provides that except in so far as the contrary intention appears, the provisions of every Commonwealth Act, irrespective of when passed, shall be taken to have effect in, and in relation to, the coastal sea, which is defined as the territorial sea and the sea on the landward side of the territorial sea, which is not within the limits of a state or internal Territory.
485 The NTA is also an Act of the Commonwealth which applies to the territorial sea and, to the extent it departs from the common law, for example in protecting native title, the common law is abrogated or modified accordingly.
486 Under the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) power was conferred on the States and the Northern Territory respectively to enact laws in respect of the territorial sea adjacent to the State or Territory (as the case may be) up to a three nautical mile limit. The legislation was enacted to give effect to the offshore constitutional settlement which was designed largely to return to the States and the Northern Territory the jurisdiction, proprietary rights and title they had previously believed themselves to have over and in the territorial sea and underlying sea-bed: see Port MacDonnell Professional Fisherman's Association Inc at 358. State and Territory legislation concerning particular matters have provided for the common law to apply in the territorial sea up to the three nautical mile limit, subject to the conditions laid down in the relevant Act: see for example the Offshore Waters (Application of Territory Law) Act 1985 (NT), Offshore Facilities Act 1986 (Qld), and the Crimes at Sea Act 1998 (NSW). Legislation equivalent to 15B(1)(a) of the Acts Interpretation Act has also been enacted to ensure that state legislation applies in the three nautical mile limit: see for example Interpretation of Legislation Act 1984 (Vic) s 57. Such legislation also abrogates or modifies the common law to the extent it is inconsistent with it.
487 The second qualification is that the law applying in the territorial sea as a result of the sovereignty obtained in the sea under international law, the 1958 and the 1982 Conventions and the SSLA is not to be inconsistent with the international law and the Conventions upon which the Commonwealth's sovereignty is founded. For example, a law that abrogates or interferes with right of innocent passage through the territorial sea would be inconsistent with both international law and the Conventions. Section 6 of the Coastal Waters (State Powers) Act 1980 (Cth) and of the Coastal Waters (Northern Territory Powers) Act 1980 protect against any such inconsistency including interference with the right of innocent passage.
488 It follows from the foregoing discussion that, as the application of the common law is co-extensive with the territory of Australia including the territorial sea over which it exercises sovereignty, the primary submission of the Commonwealth that the common law does not apply in respect of the territorial sea and therefore could not recognise the native title rights and interests claimed by the claimant group in respect of the territorial sea within the claimed area must be rejected. Accordingly, the fact that native title rights and interests are claimed in respect of the territorial sea in the claimed area does not, of itself, result in the rights and interests not being capable of recognition by the common law for the purposes of s 223(1)(c).
(iv) The role of the common law
489 The Commonwealth's submissions have been founded on an assumption that the common law can only recognise a native title right or interest in an area where the common law applies. However, a native title right or interest is not an institution of the common law or a common law tenure: see Fejo at 128. The Commonwealth's submissions as to longstanding public rights of navigation and fishing in the territorial sea under municipal law is based upon recognition by the common law of those rights. Although the legal basis for that recognition is discussed later in these reasons, for present purposes it is sufficient to refer to Attorney-General (British Columbia) at 169 where Viscount Haldane LC observed that "the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike". Viscount Haldane added that the "legal character of [the] right is not easy to define" but as far as the high seas are concerned was enjoyed "by common practice from time immemorial".
490 Whilst the common law might "recognise" the practice it can only be enforced and protected as a common law right if the "right" arises under municipal law. Thus, the public "right" to navigate and fish in the territorial sea might be rights recognised by the common law but may not be able to be protected by it prior to the common law applying in respect of the territorial sea.
491 Accordingly, it does not follow that the common law will only recognise rights it can enforce and protect. However, the real difficulty is not whether the common law can only recognise native title it can enforce and protect but rather, that the conceptual basis for the recognition of native title is that it burdens the radical title of the Crown which is a common law title. The Commonwealth contends that, as the Crown has no radical title in respect of the territorial sea, the basis for recognition of native title by the common law in respect of the sea is absent. It is to that issue that I now turn.
(e) Native Title and Crown Sovereignty in respect of the territorial sea
492 The rationale for the common law's recognition of native title to land is that when the radical title of the Crown to the land was acquired upon the acquisition of sovereignty over that land by the Crown, the pre-existing native title of the indigenous peoples was not extinguished; rather it burdened the Crown's radical title and that burden was recognised by the common law: see Mabo at 50-51, 56 and 69-70 per Brennan J. Radical title was explained in Mabo by Brennan J at 48:
"The Crown was invested with the character of Paramount Lord in the colonies by attributing to the Crown a title, adapted from feudal theory, that was called a radical, ultimate or final title: see, for example Amodu Tijani v. Secretary, Sothern Nigeria; Nireaha Tamaki v. Baker; cf. Administration of Papua and New Guinea v. Daera Guba. The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty. The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign's beneficial demesne.
By attributing to the Crown a radical title to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown's demesne. The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown's purposes. But it is not a corollary of the Crown's acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants."
493 Radical title is the bundle of ultimate or paramount rights or powers acquired over land by the sovereign upon acquiring sovereignty. The rights so acquired are a concomitant of the supreme legal authority in and over the territory over which sovereignty has been acquired. The rights fall short of absolute beneficial ownership if burdened by pre-existing native title rights recognised by the common law.
494 Putting to one side the seabed, under international and municipal law the sovereign does not acquire radical title to the territorial sea or to the internal waters upon the acquisition of sovereignty over that area: see Commonwealth v WMC Resources Ltd (1998) 152 ALR 1 at 11-12 per Brennan CJ. However, subject to the constraints of international law the Crown's enjoyment of supreme authority results in the sovereign enjoying the bundle of ultimate or paramount rights or powers acquired over the sea upon acquisition of sovereignty: see the Seas and Submerged Lands Act case at 364 per Barwick CJ and at 475 per Mason J. Whilst those rights and powers do not constitute radical title they are equivalent to the ultimate and paramount rights and powers gained over land by the sovereign upon gaining sovereignty.
495 The claimant group contends that it is difficult to perceive of a reason why only the ultimate and paramount rights and powers acquired by the sovereign in the land, but not in respect of the sea, should be burdened by pre-existing native title. Thus, it is contended that, as native title can burden the paramount rights of the Crown as sovereign in respect of land it can likewise burden the paramount rights of the Crown as sovereign in respect of the territorial sea and internal waters.
496 Mabo did not determine native title to be a burden on the rights and powers of the Crown as sovereign; rather it burdened its radical title acquired as sovereign. However, as explained earlier the clear implication of ss 6, 10, 223 and 225 of the NTA is that native title in respect of the sea can exist subject to it meeting the conditions laid down in s 223(1) for recognition of native title in respect of a particular area of land or waters as defined. Subject to that qualification the legislature has implicitly accepted that pre-existing native title can burden the Crown's ultimate and paramount rights as sovereign in respect of the sea notwithstanding that the rights do not constitute radical title to the sea.
497 The Commonwealth contends that the legislature left that question as one to be decided by the Courts. I can find no support for that view in the NTA. In that regard I respectfully agree with the observation of Olney J (82 FCR 548) that the NTA discloses "an intention to recognise and protect native title in accordance with the Act, both onshore and offshore". The legislature gave effect to that intention by providing in ss 6, 10, 223 and 225 that if the conditions laid down in Mabo for recognition of native title in respect of a particular area of land or waters were satisfied then that native title burdened the paramount radical title of the Crown as sovereign in respect of land and the paramount rights of the Crown as sovereign in respect of waters.
498 It can be accepted that the sovereign rights in respect of the territorial sea conceded by international law are subject to certain limitations arising under international law such as protection of the right of innocent passage. However that means that native title rights may be subject to such limitations rather than that they cannot exist in respect of the sea.
499 It follows from the foregoing that under the NTA the absence of radical title of the Crown to the territorial sea or the underlying solum beyond the low water mark does not have the consequence, contended for by the Commonwealth, that no native title rights and interests in respect of the territorial sea can be recognised or protected under Australian law. However, as was laid down in Mabo, it is a condition for recognition of native title that it be a pre-existing native title upon the acquisition of sovereignty by the Crown over the particular area of land or waters. Also, as with land, upon and since the acquisition of sovereignty in respect of the sea, the pre-existing native title rights and interests must, in accordance with s 223(1), satisfy the requirements of the common law for their recognition.
500 I have proceeded on the basis of a statutory recognition of native title in respect of the sea. However, I would have arrived at the same conclusion under the common law. In my view the Crown's paramount title in respect of land and its paramount rights in respect of the sea are so closely related for the purposes of native title that I do not accept that there is any valid reason for the common law recognising native title in respect of land but not in respect of the sea.
501 That conclusion is relevant to the waters covering land in the Northern Territory to the low water mark. In respect of those waters under the common law pre-existing native title burdened the Crown's sovereign rights upon the acquisition of sovereignty by the Crown in 1824. The gulfs and bays in the claimed area, the subject of the 1863 Letters Patent, stand in the same position as from that date as those waters formed part of the Northern Territory and not the territorial sea.
502 The conclusions I have reached make it unnecessary to determine the vexed question of whether the Crown has ownership or proprietary rights in the seabed in the territorial sea. In Attorney-General (British Columbia) v Attorney-General (Canada) at 174 Viscount Haldane specifically left that question open. It was also a question on which divergent views were expressed in the Seas and Submerged Lands Act case. Gibbs J (at 397-400) and Stephen J (at 433) concluded the Crown owned the seabed: see also Jacobs J at 487. Barwick CJ (at 367-368) said any "conclusion on that question may be fraught with considerable uncertainty". Mason J (at 465) emphasised that the cases relied upon to establish Crown ownership of the seabed of the territorial sea failed to acknowledge:
"…that the territorial sea is a distinct concept which owes it origin, development and elaboration to international law and that it has been incorporated into British municipal law not as a supplement of the old notion of territorial sovereignty, but quite independently of it."
503 Mason J also said (at 466) that the territorial rights now conceded by international law to the coastal state in the solum of the territorial waters "stamp it with the character of territory that is different from the land territory of the coastal state".
504 In Robinson v Western Australia Museum (1976) 138 CLR 283 at 337 Mason J rejected a submission that the court in the Seas and Submerged Lands Act case held that the SSLA conferred on the Crown in right of the Commonwealth's "proprietary rights in the seabed".
505 As I have concluded that native title can burden the Crown's sovereign rights in respect of the territorial sea it must follow that it can likewise burden these rights in respect of the underlying solum whether or not the Crown has ownership or proprietary rights in either. The burden on the "sovereign rights" of the Crown in respect of the territorial sea and internal waters is no different qualitatively or quantitatively to the burden on the Crown's radical title in respect of land with the consequence that native title rights in the sea and waters, although enforceable, are as vulnerable to legislative and executive extinguishment as are rights in the land: see Wik at 84 and Fejo at 127.
506 Brief mention should also be made of the Coastal Waters (Northern Territory Title) Act 1980 (Cth) which came into operation on 14 February 1983. The Act was part of the offshore settlement between the Commonwealth, the States and the Territory in respect of the territorial sea. In substance the Act vested in the Northern Territory proprietary rights and title in respect of the land beneath the territorial sea adjacent to the Territory and within the sovereignty of the Commonwealth up to the three mile limit. It is to be noted that the term vest is of "elastic import" and must be construed in the context in which it is used: see Yanner at [28] and [94]. The vesting was pursuant to s 4 of the Act which relevantly provided as follows:
"4(1) By force of this Act, but subject to this Act, there are vested in the Territory, upon the date of commencement of this Act, the same right and title to the property in the seabed beneath the coastal waters of the Territory, as extending on that date, and the same rights in respect of the space (including space occupied by water) above that seabed, as would belong to the Territory if that seabed were the seabed beneath waters of the sea within the limits of the Territory.
(2) The rights and title vested in the Territory under subsection (1) are vested subject to:
(a) any right or title to the property in the seabed beneath the coastal waters of the Territory of any other person (including the Commonwealth) subsisting immediately before the date of commencement of this Act, other than any such right or title of the Commonwealth that may have subsisted by reason only of the sovereignty referred to in the Seas and Submerged Lands Act 1973;
(b) …"
507 Section 6 provided that nothing in the Act was to affect the status of the territorial sea of Australia under international law or the rights and duties of the Commonwealth in relation to ensuring observance of international law including the 1958 and 1982 Conventions.
508 The Commonwealth relies upon the Act to contend that it is inconsistent with the existence of any native title rights or interests in respect of the territorial sea or the seabed beneath it up to the three mile limit. I am unable to accept that contention. The Act has a different operation in respect of the seabed and the space above it. The right and title to the property in the seabed, which is "vested" in the territory, was subject to any "right or title to the property" in the seabed subsisting before the commencement of the Act. Thus, in so far as a native title right or interest recognised by the common law subsisted in the seabed prior to 14 February 1983 then that right was preserved by s 4(2)(a). As explained above the common law applied in respect of the territorial sea up to the three mile limit prior to 1983. Thus, any native title rights and interests in respect of the seabed that were recognised by the common law which applied to the territorial sea the subject of the Act, subsisted before the date of the commencement of the Act and were therefore preserved by s 4(2)(a).
509 The rights that vest in the Territory in respect of the space above the sea are the same rights as would belong to the Territory if the seabed were seabed beneath waters of the sea within the limits of the Territory. Native title can exist in respect of internal waters and would be recognised by the common law as such. Thus, in vesting the same right in respect of the territorial sea as the Territory would have if the sea were internal waters the vesting must, similarly, be subject to any existing native title rights or interests in respect of those waters.
510 The Commonwealth points out that s 4(2)(a) only preserves existing rights or title to property in the seabed but not existing rights in respect of the space above the seabed. As has already been explained the rights in respect of the space are not rights or title to property. Rather, in respect of any native title rights or interests in respect of the space, they are rights recognised and protected by the common law. As the rights in respect of space above the seabed in the coastal waters were to be the same rights as would belong to the Territory if the seabed were the seabed beneath waters of the sea within the limits of the Territory, the space so vested is burdened by any pre-existing native title rights in the same way as internal waters were so burdened.
511 In the light of those conclusions it is unnecessary to consider the precise effect the vesting of the "title" under s 4(1) of the Act. It is sufficient to say that given that sovereignty, rather than "title", was conceded to the Commonwealth in respect of the territorial sea under international law there is much to be said for the view that the vesting of rights and title under the Act was not absolute (see for example s 6) and is not inconsistent with the survival of pre-existing native title rights in any event.
6. LIMITS OF THE NORTHERN TERRITORY
512 The conclusion of Olney J that native title in respect of the territorial sea and inland waters was a statutory right under the NTA and was not subject to a requirement that the common law apply in the claimed area made it unnecessary for him to deal with the further submission of the respondents, that the native title claim was limited to the geographical limits of the Northern Territory based on Keyn. However, his Honour nevertheless considered that issue. There was general acceptance between the parties that the Northern Territory ended at the low water mark save that "bays and gulfs" within the claimed area formed part of the Northern Territory: see generally Raptis v South Australia 138 CLR 346. Olney J concluded (82 FCR 558):
"…consistent with the judgments of the High Court in Raptis and the Seas and Submerged Lands Act Case, the territorial limits in the Northern Territory within the claimed area include the waters of Mission Bay but otherwise extend to, but not beyond, the low water mark of the coast line of the islands and mainland."
513 As I have reached a different conclusion to his Honour as to the operation of the NTA and, in particular, as to s 223(1) and as to the legal regimes that apply to native title in respect of the claimed area, it is necessary to consider the contentions of the parties as to the geographical limits of the Northern Territory, including its internal waters. The resolution of that issue is significant as it will provide the date on which and the area in respect of which pre-existing native title burdened the title or sovereign rights (as the case may be) of the seabed and the sea respectively within the relevant area. As the common law, and not international law, has applied within the Northern Territory and its internal waters any issue concerning the right of innocent passage under international law does not arise.
514 I agree with the conclusion reached by Olney J on this issue for the reasons given by Beaumont and von Doussa JJ. Accordingly, only Mission Bay is to be treated as internal waters and therefore part of the Northern Territory as from the date of the Letters Patent in 1863.
7. EXCLUSIVE POSSESSION OF THE CLAIMED AREA
515 Although Olney J concluded that the evidence did not establish the claim to exclusive possession, his Honour said he would have rejected the claim in any event on the basis that it was inconsistent with the right of innocent passage under international law and the rights of the public to fish and to navigate under the common law. The claimant group challenged the conclusions of Olney J on each of these issues.
(a) Right of Innocent Passage
516 His Honour said, in respect of the right of innocent passage, (82 FCR 592):
"Australia was a party to the Convention on the Territorial Sea and Contiguous Zone done at Geneva on 29 April 1958 (the Geneva Convention). A copy of the Convention is set out in schedule 1 in the Seas and Submerged Lands Act 1973 as originally enacted. The schedule was repealed by s 13 of the Maritime Legislation Amendment Act 1994 and replaced by Parts II, V and VI of the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982 (the UN Convention). Article 1 of the Geneva Convention provides that sovereignty of a State extends, beyond its territorial and internal waters, to a belt of sea adjacent to its coast, described as the territorial sea and that sovereignty is exercised subject to the provisions of the Convention and to other rules of international law. Article 14 preserves the right of ships of all States to enjoy (subject to the Convention) the right of innocent passage through the territorial sea. Article 17 of the UN Convention contains a similar provision in relation to the right of innocent passage. Although the Seas and Submerged Lands Act (either in its original form or as amended) does not expressly enact the Geneva Convention or the UN Convention as part of the municipal law of Australia, the statutory recognition given to them in this way is an acknowledgment of Australia's commitment to its international obligations. It can reasonably be said that Australia acknowledges that the right of the ships of all States to innocent passage through the territorial sea is a burden on the sovereignty which it enjoys over the territorial sea; and if that be a correct analysis it can fairly be said that the Conventions bring to bear a legitimate and important influence on the development of the common law. It would be contrary both to international standards and the values of the common law, for the common law to recognise a native title right which conflicts with Australia's international obligation to permit innocent passage of the ships of all States through its territorial seas. It is clear from the terms of the Convention that the right of innocent passage is exercisable without the requirement of consent first being obtained. For this reason, if for no other, the applicants' claimed exclusive right of possession and occupation of the claimed area and the claimed right to control access of others to the waters of the claimed area fail the test of s 223(1)(c) of the Native Title Act and cannot be recognised as native title rights and interests."
517 Smith in The Law and Custom of the Sea (3rd ed, 1959) at 45 stated in respect of the right of innocent passage:
"At the same time the very nature of the sea as the common highway of the whole world necessitates in the common interest a practical modification of the general principle of absolute sovereignty. Just as in ordinary law usage may create a public right of way across a man's land, but without thereby destroying his ownership, so the usage of nations from the earliest times has established what may be called a general right of way through territorial waters."
518 Thus, as was said in Coulson & Forbes, Law of Waters and Land Drainage (6th ed, 1952) at 1:
"The reason of the thing, the preponderance of authority, and the practice of nations, have decided that the main ocean, inasmuch as it is the necessary highway of all nations, and is from its nature incapable of being continuously possessed, cannot be the property of any one State."
519 The right of innocent passage has long been accepted as a limitation under customary international law upon the sovereignty of coastal states in respect of the territorial sea: see Jennings and Watts, Oppenheim's International Law (9th ed, 1992) Vol 1, 614-615; Pearce Higgins, Hall's International Law (8th ed, 1924) 197-198; Colombos, International Law of the Sea at 133. The process of codification of the law in relation to the right of innocent passage through the territorial sea in the 1958 and 1982 Conventions did not call into question the existence or status of the right as such; rather, such dispute as there was related to the content and operation of the right in particular situations. This was resolved by agreement on the provisions contained in the Conventions relating to the right of innocent passage: see Smith The Law and Custom of the Sea (3rd ed, 1959) 49-50; Shearer, O'Connell's International Law of the Sea (1982) Vol 1, 271, 291.
520 A concern expressed in some of the judgments in Keyn related to the perceived difficulty of reconciling the right of innocent passage through the territorial sea under international law with the claim that the sea was part of the realm of England and therefore under the absolute and unfettered sovereignty of England. As was observed in Shearer, O'Connell's International Law of the Sea at 264, it would be obvious today, given the current understanding of the operation of international law with respect to sovereignty, that there is no inconsistency between sovereignty and the limitation imposed upon it in respect of the right of innocent passage under customary international law. Indeed, the limitation is itself a consequence of the sovereign rights under international law of nation states, in respect of the territorial sea of the coastal state. The current understanding is consistent with the view expressed by Brett JA in Keyn (at 135) concerning the territorial seas:
"…there is for all nations a free right of way to pass over such sea with harmless intent; but such a right does not derogate from the exercise of all its sovereign rights in other respects"
and (at 143-144):
"…it is equally proved that every nation which possesses this water territory has agreed with all other nations that all shall have the right of free navigation to pass through such water territory, if such navigation be with an innocent or harmless intent or purpose. This right of free navigation…by no means derogates from its sovereign authority."
521 The right of innocent passage through the territorial sea is a right accruing to states in respect of their shipping and is enforceable against other states under international law: see Art 17 of the 1982 Convention; Art 14 of the 1958 Convention; Colombos, International Law of the Sea at 87. There is nothing in the SSLA, which gives effect to the 1958 and the 1982 Conventions, that is inconsistent with the preservation of the right of innocent passage through the territorial sea. In order to ensure that Australia's obligations under international law were not compromised by State or Territory legislation the Commonwealth, when conferring power on the States and the Northern Territory in respect of the three nautical mile limit of the territorial sea, provided in s 6 of the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (Northern Territory Powers) Act 1980 (Cth):
"Nothing in this Act affects the status of the territorial sea of Australia under international law or the rights and duties of the Commonwealth in relation to ensuring the observance of international law, including the provisions of international agreements binding on the Commonwealth and, in particular, the provisions of the Convention on the Territorial Sea and the Contiguous Zone relating to the right of innocent passage of ships."
522 The consequence of the foregoing is that under international law received as part of the common law, and under the SSLA, the sovereign rights of the Commonwealth in respect of the territorial sea are limited by and subject to the right of innocent passage in international law as reflected in the 1958 and 1982 Conventions. Although the Conventions have not been incorporated into municipal law, as and when Australia's sovereignty has extended to the territorial sea under the common law and pursuant to ss 6 and 7 of the SSLA, absent contrary legislative provision, the extension has been subject to the right of innocent passage through the territorial sea. Accordingly, Olney J was correct in concluding that Australia is obliged towards all other nations to ensure and uphold the right.
523 It follows that the claimant group's claim of native title in respect of those areas forming part of the territorial sea is subject to the right of innocent passage which is a limitation upon the Commonwealth's sovereign rights in respect of the territorial seas or, put another way, Australia's sovereignty is to be exercised in a manner that recognises and protects the right of innocent passage. Accordingly, I agree with the conclusion of Olney J that the common law would not "recognise a native title right which conflicts with Australia's international obligation to permit innocent passage of the ships of all States through its territorial seas". Thus, any native title right and interest that the claimant group can claim and establish in respect of the territorial sea is subject to and cannot derogate from the right of innocent passage.
524 It does not follow from my conclusion that the common law is unable to recognise any exclusive native title rights or interests in respect of the claimed area. The right of innocent passage is analogous to the public right of navigation over tidal waters at common law, which as I later explain, is paramount and prevails over exclusive fishing rights when the two come into practical conflict: see Mayor of Lynn v Turner (1774) 1 Cowp 86; Mayor of Colchester v Brooke (1845) 7 QB 339 at 374; Murphy v Ryan (1868) 2 Ir CL 143 at 152-153. However, as with the right of navigation, the right of innocent passage is not inconsistent with exclusive fishing rights.
(b) Right of the Public to Navigate and to Fish
525 In respect of the common law right of navigation his Honour said (82 FCR 593):
"The common law also recognises a public right of navigation which has been described as a right to pass and repass over the water and includes a right of anchorage, mooring and grounding where necessary in the ordinary course of navigation … This right evolved before Magna Carta and is therefore a right distinct in its origin from the right of innocent passage in international law. A native title right, such as the claimed rights to exclusive possession of, and to control the access of others to the claimed area, would contradict the public right of navigation and thereby fracture a skeletal principle of our legal system. Such a right as claimed could not be recognised by the common law."
526 In respect of a common law right to fish his Honour said (82 FCR 593):
"The common law has also recognised a public right to fish for many centuries. In Minister for Primary Industries and Energy v Davey…Burchett J summarised the position in this way:
From times immemorial, the common law has recognised a right of the public both to navigate and to fish in the seas and tidal waters: Attorney-General for the Province of British Columbia v Attorney-General for the Dominion of Canada [1914] AC 153 at 169. In the case cited, the Privy Council in an advice delivered by Viscount Haldane LC quoted (at 168) from Lord Hale's De Jure Maris the proposition that 'the common people of England have regularly a liberty of fishing in the seas or creeks or arms thereof'. Viscount Haldane also pointed out (at 171):
'...the public have the right to fish, and by reason of the provisions of the Magna Carta no restriction can be put upon that right of the public by an exercise of the prerogative in the form of a grant or otherwise.'
These statements of the law apply also in Australia. In New South Wales v Commonwealth (the Seas and Submerged Lands case), Stephen J referred to the 'public right of navigation and of fishing', and (at 489) Jacobs J said 'that by the Magna Carta of John public rights of fishing in tidal waters were preserved'. In Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 330; 88 ALR 38 at 44, Brennan J (with whom Dawson, Toohey and McHugh JJ expressed agreement, while Mason CJ, Deane and Gaudron JJ expressed 'general agreement') drew the conclusion:
'...the right of fishing in the sea and in tidal navigable rivers, being a public not a proprietary right, is freely amenable to abrogation or regulation by a competent legislature.'
The comments made above concerning the inability of the common law to recognise a claimed native title right that would contradict the common law public right to navigate have equal application to the public right to fish."
527 Prima facie, the rights of the public to navigate and to fish are rights arising under the common law of Australia and therefore can be enforced or protected in areas where the common law applies. The source of each of the rights in Australia is the common law, rather than international law or statute. Although the common law right to navigate may be conceptually analogous to the right of innocent passage, enforcement of the common law right is by the individual whilst enforcement of the international right is by the state, rather than the individual, save to the extent the international right is adopted into municipal law.
528 Prior to the common law applying to the territorial sea common law protection of the public rights to fish and to navigate was problematic notwithstanding the recognition by the common law of the existence of the rights. Plainly, the rights were enforceable in internal waters, being waters in the intertidal zone or waters within the Northern Territory including Mission Bay which formed part of the Territory. However, on any view as and when the common law extended to the three mile territorial sea and then to the twelve mile territorial sea, the common law right to fish and to navigate became rights which were able to be enforced and protected by the common law within those respective limits. Accordingly, in determining whether such rights can co-exist with exclusive native title rights consideration needs to be given to whether, under s 223(1)(c) of the NTA, the common law will recognise native title rights and interests that are inconsistent with these common law rights.
The public right to fish
529 Historically, at common law, title in the soil under tidal waters, while capable of being granted to a subject, was presumed to be vested in the Crown: see Lord Hale, De Jure Maris, Ch 4. As the Crown was presumed to own the sea and the seabed, the right of fishing also originally vested in the Crown. Although the Crown therefore had the primary right to fish, the public succeeded to this right on the theory that the King held the rights in tidal waters in trust for the use of the people: see for example Lord Fitzwalter's Case (1674) 1 Mod Rep 105. Lord Hale described this in the following terms in the influential treatise De Jure Maris, Ch 4:
"…the common people of England have regularly a liberty of fishing in the sea or creeks or arms thereof, as a publick common of piscary, and may not without injury to their right be restrained of it, unless in such places or creeks or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of that common liberty."
530 The legal basis of the public right to fish in tidal waters and the sea was seen as resting upon the Crown's presumed title to the sub-soil was accepted in a number of early decisions on this subject. For example, in Blundell v Catterall (1821) 5 B & Ald 268, Bayley J accepted that the soil of the sea was the King's, further stating (at 304) that:
"Many of the King's rights are, to a certain extent, for the benefit of his subjects, and that is the case as to the sea, in which all his subjects have the right of navigation, and of fishing…"
531 In Murphy v Ryan (1868) Ir 2 CL 143, O'Hagan J said at 149:
"But whilst the right of fishing in fresh water rivers, in which the soil belongs to the riparian owners, is thus exclusive, the right of fishing in the sea, and in its arms and estuaries, and in its tidal waters, wherever it ebbs and flows, is held by the common law to be publici juris, and to belong to all the subjects of the Crown - the soil of the sea, and its arms and estuaries, and tidal waters being vested in the Sovereign as a trustee for the public. The exclusive right of fishing in the one case, and the public right in the other, depend upon the existence of a proprietorship, in the soil of the private river by the private owner, and by the Sovereign in the public river respectively."
532 This passage was cited with approval by Kelly CB in Mayor, &c. of Carlisle v Graham (1869) 4 LR Exch 361 at 367-8.
533 The view that the public right to fish depends on the presumed ownership of the soil by the Crown continued to be supported into the early twentieth century, with Parker J stating in Lord Fitzhardinge v Purcell [1908] 2 Ch 139 at 166-7:
"Clearly the bed of the sea, at any rate for some distance below low-water mark, and the beds of tidal navigable rivers, are prima facie vested in the Crown, and there seems no good reason why the ownership thereof by the Crown should not also, subject to the rights of the public, be a beneficial ownership."
534 In Harper (at 330) Brennan J, referring to Mayor, &c. of Carlisle v Graham at 367-368, stated that there is authority for the view that the public right to fish is sustained by the Crown's title to the sub-soil.
535 Hall in his commentary Hall on the Sea-Shore (2nd ed, 1875) at [40] referred to the public (and private) rights of fishing and navigation as "franchises, liberties or usufructuary privileges". Hall also made the following remarks regarding the nature of the public right to fish at [42]:
"This public or general right of fishing in the sea, claimed by the subject, is a beneficial privilege enjoyed by British subjects, time out of mind. Whether, in fact, it was originally a public grant from the King, or whether it was a reservation by the people of such right, when they vested the rest of the property of the sea in him, or whether it be one of those natural and necessary rights which, like the air we breathe, has ever been free and unquestioned in enjoyment, is immaterial; for the conclusion is the same; viz. that such right of fishing has immemorially belonged to, and been enjoyed by the public, and that, in point of title, it is admitted to be held and enjoyed by common right, ie. by the common law, and custom of the Realm."
536 The view that the public right to fish depends on the presumed ownership of the soil by the Crown was rejected by the Privy Council in Attorney-General (British Columbia), which adopted the alternative view that the public right depends on the protection of the Crown as parens patriae. However, Viscount Haldane LC (at 168-169), delivering the judgment of the Privy Council, stated:
"…the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean, if, indeed, it did not in fact first take rise in them. The right into which this practice has crystallised resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity the Crown as parens patriae no doubt regarded itself bound to protect the subject exercising it, and the origin and extent of the right as legally cognizable are probably attributable to that protection, a protection which gradually came to be recognised as establishing a legal right enforceable in the Courts."
537 Viscount Haldane (at 173) observed that the public right to fish does not depend on any proprietary title of the Crown. Accordingly, as his Lordship said (at 174):
"…their Lordships feel themselves relieved from expressing any opinion on the question whether the Crown has a right of property in the bed of the sea below the low water mark to what is known as the three-mile limit because they are of the opinion that the right of the public to fish in the sea has been well established in English law for many centuries and does not depend on the assertion or maintenance of any title of the Crown to the subjacent land."
538 The conclusion reached by the Privy Council is not inconsistent with the decisions in Keyn and the Seas and Submerged Lands Act case. It was cited by Brennan J in Harper v Minister for Sea Fisheries at 330 for the proposition that the right of fishing is a public not a proprietary right and is therefore "freely amenable to abrogation or regulation by a competent legislature".
539 As was pointed out by Viscount Haldane (at 168) the "paramount title which is prima facie in the public" of the right to fish could only be denied where a subject or the Crown "hath gained a propriety exclusive" of the public right. Lord Hale stated that a subject could acquire a propriety exclusive of the public right in two ways: he or she may be granted an exclusive fishery by the Crown, or an exclusive fishery may arise by "custom or prescription": see Lord Hale, De Jure Maris, Ch 5; Neill v Duke of Devonshire (1882) 8 App Cas 135 and Blundell v Catterall at 294 per Holroyd J. In such cases, the exclusive fishery takes priority over and therefore excludes the public right to fish.
540 It is well established that the common law regarding the grant of an exclusive fishery by the Crown differs according to whether the grant was made before or after the Magna Carta in 1215: see Malcomson v O'Dea (1863) 10 HL Cas 593; Neill v Duke of Devonshire; Lord Fitzhardinge v Purcell; Attorney-General (British Columbia) at 170. Before the Magna Carta, the Crown in the exercise of its prerogative could exclude the right of the public to fish in any particular place by granting a several fishery to a subject, and frequently did so: for example see Malcomson v O'Dea; Stephens v Snell [1939] 3 All ER 622. While most of the cases on exclusive fisheries concern Crown grants, rather than prescription, it appears that these rights too can only exist if the fishery existed prior to the Magna Carta. Viscount Haldane in Attorney-General (British Columbia) at 170-171 stated that proof of the existence and enjoyment of separate and exclusive rights of fishing in tidal waters however created must have:
"…of necessity gone further back than the date of Magna Carta."
541 It is accepted law that since the Magna Carta in 1215 the Crown cannot by executive act grant an exclusive fishery in tidal waters, nor can an exclusive fishery arise by prescription or custom after that date: see Malcomson v O'Dea; Neill v Duke of Devonshire; Lord Fitzhardinge v Purcell; Attorney-General (British Columbia). Any grant of a fishery after the Magna Carta cannot be exclusive, and must therefore be subject to the public right to fish: Lord Fitzhardinge v Purcell at 167 per Parker J.
542 An exclusive fishery may exist either apart from or as an incident to the ownership of the soil under the fishery. Owing to the Magna Carta's limiting effect on the Crown's power to create several fisheries, there is no presumption that the owner of the soil is therefore the owner of the fishery, and a grant of the soil simpliciter in tidal waters will not operate in itself to pass the right of fishing over it: see Attorney-General v Emerson [1891] AC 649; Scratton v Brown (1825) 4 B & C 485.
543 In Harper, Brennan J (with the concurrence of Mason CJ, Deane, Gaudron, Dawson, Toohey and McHugh JJ at 329-330) summarised the public right to fish as follows:
· since the Magna Carta no exclusive fishery could be created by the exercise of the Crown prerogative in tidal waters and no public right of fishing in such waters, then existing, can be taken away without legislation;
· the right of the owner of the soil over which the tidal waters flow (whether the owner be the Crown or not) to enjoy the exclusive right of fishing in those waters or to grant the right as a private right or as a profit a prendre is qualified by the paramount right to fish vested in the public;
· the right of fishing, being a public not a proprietary right, is freely amenable to abrogation or regulation by a competent legislature.
544 Thus, subject to statute and any applicable international law, the "liberty of fishing" in the sea became a right enjoyed and protected under the common law (as and when it applied in the sea) in the same way as the right was previously enjoyed and protected in tidal waters. This conclusion is consistent with international law which treated the coastal state as having exclusive power in respect of fisheries in the territorial sea. Exclusivity in that regard is assumed in Article 14.5 of the 1958 Convention and Articles 19(2) and 21(1) of the 1982 Convention: see also Fisheries Jurisdiction Case ICJ Rep 1974, 23; Colombos, International Law of the Sea (6th ed, 1967) 147; Lauterpacht, International Law A Treatise by L Oppenheim (8th ed, 1947) 492-493.
545 Although the public right to fish is "paramount" as against the prerogative of the Crown or the right of any other owner of the sub-soil under tidal waters to grant a several fishery or any other rights that impede the public right to fish (see Attorney-General (British Columbia) at 168 and Harper at 329) it was subordinated to a pre-existing several fishery validly established by Crown grant or prescription, and possibly custom, prior to Magna Carta. Consequently, unlike the right to navigate, the right to fish was referred to by Viscount Haldane as a "prima facie" right. Further, although the public right to fish operates to prevent the Crown or an owner of the sub-soil from granting rights inconsistent with the right except with the authority of statute, it is not a proprietary or property right.
546 The issue is whether any native title can be claimed to a several fishery within the claimed area as such a claim conflicts with the common law right to fish vested in the public.
The right to navigate
547 All waters which are tidal and in which navigation is possible are subject to a public right of navigation. The right to navigate is a common law right for the benefit of, and invocable as between, local citizens and subjects. As the common law extended to the territorial sea there will be some overlap between the rights of navigation and innocent passage. However, as the two rights are not inconsistent with each other they can operate cumulatively in the same area.
548 The right of navigation is a right of way, not a right of property: Orr-Ewing v Colquhoun (1877) 2 App Cas 839. The right includes the right to anchor, to remain for a reasonable time, to load and unload, and to moor or fix temporary moorings in certain circumstances: see for example Gann v Free Fishers of Whitstable [1865] 11 HL Cas 192, Iveagh v Martin [1961] 1 QB 232 at 272 and The Swift [1901] P 168.
549 However, unlike the public right to fish, which is said to be abridged or destroyed by the existence of a private fishery prior to the Magna Carta, the public right of navigation has never been able to be derogated from or interfered with other than by statute. Moreover, no act of a private person, however long continued, can destroy the public right: Vooght v Winch (1819) B & Ald 662.
550 In Mayor of Colchester v Brooke at 373 Lord Denman CJ, delivering the judgment of the Court, said:
"It cannot be disputed that the channel of a public navigable river is properly described as a common highway."
551 The right of navigation is a paramount right, and prevails over public and private fishing rights. For example, in Gann v Free Fishers of Whitstable Lord Westbury said of the right of navigation in navigable rivers at 207-208:
"The bed of all navigable rivers where the tide flows and reflows, and of all estuaries or arms of the sea, is by law vested in the Crown. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from or interfere with the right of navigation, which belongs by law to the subjects of the realm. The right to anchor is a necessary part of the right of navigation, because it is essential for the full enjoyment of that right. If the Crown therefore grants part of the bed or soil of an estuary or navigable river, the grantee takes subject to the public right, and he cannot in respect of his ownership of the soil make any claim or demand, even if it be expressly granted to him, which in any way interferes with the enjoyment of the public right."
552 In Duchess of Sutherland v Watson (1868) 6 SC 199 Lord Neaves (at 213) said:
"…the right of property in the solum of the sea I consider to be a clear patrimonial right of the Crown. And that right may be granted to one of the lieges, subject always to those rights of navigation of which I have spoken…"
553 In Denaby & Cadeby Main Collieries Ltd v Anson [1911] 1 KB 171 at 198-9 Fletcher Moulton J stated:
"That the public have a right to the free use of the sea for the purposes of navigation has been unchallenged law from the earliest times. It has frequently been enunciated in the form that the sea is a public highway, and that ships have the right eundi, redeundi, et morandi over every part of it, no matter to whom the soil lying thereunder may belong. This method of formulating the right is valuable inasmuch as the legal associations which the conception of a highway calls up are strikingly applicable. In some respects, perhaps, the public rights of user of the sea for navigation are from the nature of the case more extensive than in the analogous case of a highway. For instance, it is essential to navigation that there should be a free right of anchoring or otherwise securing in position the navigating vessel, and there is nothing strictly analogous to this in the case of a highway."
554 An exclusive fishery is subservient to the right to navigate. As was said in Chitty on the Prerogatives of the Crown 143, c.8, s 7:
"the holder of an exclusive prescriptive right of fishery in public waters enjoys it, subservient to the superior and sacred right of the public to use the arm of the sea or river for the purposes of navigation;"
555 However, the recognition of exclusive fishing rights is not regarded as inconsistent with the public right of navigation over tidal waters at common law as the public right of navigation, being "paramount", prevails over private fishing rights when the two come into practical conflict: see Mayor of Lynn v Turner; Mayor of Colchester v Brooke at 374, Murphy v Ryan. As Lord Hale stated, the private fishing right "must be so used as it may not occasion a common annoyance to passage of ships or boats; for that is prohibited by common law": see Lord Hale, De Jure Maris, Ch 5. Thus, a navigator may place the ship in a fishery and stay there for as long as is reasonably necessary for the purposes of navigation, but must not abuse the right by acting wantonly or maliciously so as to damage the fishery: see Halsbury's Laws of England (4th ed) Vol 18 at [604]; Anon (1808) 1 Camp 517n.
556 In the case of Anonymous, after observing that the rights of an owner of a fishery must be subservient to the public right to navigate, Wood B (at 519n) observed:
"It would be of very mischievous consequence if the owner of a fishery could prescribe to the public how and where they are to moor in a navigable river."
557 In Williams v Wilcox (1838) 8 Ad & E 314 Lord Denman CJ delivering the judgment of the court re-iterated the paramount right of the public to use each part of a navigable river as the "King's highway". Lord Denman (at 333) stated that even a Royal grant made prior to Magna Carta of the right to construct a weir must be subordinated to the "complete" right of the public to "pass up and down" the channels of public navigable rivers which "were always highways". Thus any grant, in exercise of the prerogative, made in derogation of that public right, previously existing, could not be sustained in the absence of statutory support for it.
558 As can be seen from the foregoing, the right to navigate from time immemorial was paramount to the right to fish even in respect of an exclusive fishery. The paramountcy arose, not from Magna Carta, but from the policy of the law. Unlike the right to fish, save for abrogation or modification by legislation, the right was not subject to or capable of being qualified at any time by grant, prescription or custom.
(c) Inconsistency between native title and common law rights
559 Earlier I concluded that the sovereignty conceded by international law in respect of the territorial sea is burdened by or subject to the right of innocent passage arising under international law with the consequence that any native title right or interest in respect of the territorial sea is subject to that right. However the public rights to fish and to navigate are common law rights. The question is whether such rights, if inconsistent with a native title right (such as a right to an exclusive fishery in part of the sea), will preclude recognition by the common law of the native title right: see s 223(1)(c) of the NTA.
560 It was not suggested in Mabo that consistency with the common law, which is a precondition for recognition of customary title, is a requirement for recognition by the common law of native title. Indeed, Brennan J (at 59) stated:
"The general principle that the common law will recognize a customary title only if it be consistent with the common law is subject to an exception in favour of traditional native title."
561 Thus, inconsistency, of itself, would not appear to afford a basis for non-recognition as native title itself is inconsistent with the common law.
562 Usufructuary rights, like those claimed in the present case, are more akin to custom, than to customary title. However custom is, by definition, contrary to or is not consistent with the common law. A custom is defined in Halsbury's Laws of England (4th ed, 1975) Vol 12 at [401] as:
"…a particular rule which has existed either actually or presumptively from time immemorial and obtained the force of law in a particular locality although contrary to, or not consistent with, the general common law of the realm."
563 This definition serves to emphasise that custom is local law, which by its very nature only applies to a distinct locality and may be contrary to, or inconsistent with, the common law. As Tindal CJ said in Lockwood v Wood (1844) 6 QB 50 at 64, an established custom "is, in effect, the common law within that place to which it extends, though contrary to the general law of the realm". See also Scrutton J in Anglo-Hellenic Steamship Co v Dreyfus & Co (1913) 108 LTR 36 at 37.
564 In Mabo Brennan J gave two examples of interests that would not be recognised by the common law. The first (at 43) was where recognition of the native title interest would "fracture a skeletal principle of our legal system". Brennan J (at 45) gave some indication of what he meant by that phrase when he referred to the basic doctrine of tenure in land law, which was derived from feudal origins, as "a doctrine that could not be overturned without fracturing the skeleton which gives our land law its shape and consistency".
565 The second example (at 61) was where the traditional laws and customs are "so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld". Although his Honour's discussion of this issue was in the context of refusing relief in respect of a native title claim, for the purposes of the NTA the example appropriately falls to be treated as relating to recognition, rather than to a qualification upon protection, of native title.
566 In each example the refusal of recognition is the result of an affront to the policy of the law or to fundamental principles of the legal system rather than to a particular rule or principle of the common law as such. When Brennan J referred to recognition not being accorded in circumstances that would "fracture a skeletal principle" of the legal system, his Honour was not referring to a principle of the common law but rather, to the underlying policies (ie the skeleton) of the common law that have given rise to certain of its rules and therefore to its "shape and consistency".
567 The Case of Tanistry (1608) Davis 28 was referred to by Brennan J in Mabo at 59. The case is an example of where the common law, as a matter of policy, would not recognise the Irish custom of tanistry which was held to be void, inter alia, because it was founded in violence. Thus, a claim to a native title right and interest that was "founded in violence" would be an example of a circumstance where recognition would fracture a skeletal principle of our legal system and would also be so repugnant to equity and good conscience that judicial sanction for it must be withheld.
568 Brennan J referred to Idewu Inasa v Oshodi [1934] AC 99 as an example of a case where judicial sanctions were withheld by a court in respect of a native law or custom. In Idewu Inasa the Privy Council treated a custom which rendered not only an offending occupier liable to be evicted by the Chief but also all the occupier's relatives as one that would be so repugnant to natural justice, equity and good conscience that judicial sanction in respect of it must be withheld. In that case, as the custom in question was limited to the offending occupier and those of his relatives who had supported or sided with him against the Chief, the Privy Council found that it did not satisfy that criterion and, therefore, was entitled to be recognised and enforced.
569 In Fejo Kirby J (at 150) suggested that native title should not "destroy or contradict an important and settled principle of the legal system" or significantly disturb "established rights". I do not understand his Honour as intending to go further than restate in his own words the conditions stated by Brennan J in Mabo for recognition of native title. In particular, I do not regard his Honour as suggesting an "inconsistency" criterion to preclude common law recognition. Thus, a native title right or interest that is recognised by the common law, although inconsistent with it, is paramount and will enjoy statutory protection under the NTA.
(d) Conclusion on the Right to Navigate
570 The "policy" or "skeletal principle" underlying the common law right of navigation is "freedom" of the seas and tidal waters. The policy is of ancient origin, as is the common law right that it informs. A general right of passage was an element of the public law of the Roman Empire: see Shearer, O'Connell's International Law of the Sea Vol 1 at 10, 260 and the authorities there cited. A right of way was reserved from earliest times over property which was, by its nature, common. The sea was the classic example, and was often held by its nature to be res communis or the property of all. Grotius referred to such a right of passage as including "lands, rivers and any part of the sea that has become subject to the ownership of a people": see De jure belli ac pacis, II, 2, 13; Shearer O'Connell's International Law of the Sea Vol 1 at 260. Modern authority is consistent with the Grotian approach: see Pearce Higgins, Hall's International Law at 164. The assumptions of Grotius and his successors have been echoed, with slight variations with respect to both the common law and the international law rights of navigation and passage by writers ever since.
571 It seems fairly plain, as was pointed out by Viscount Haldane LC in Attorney-General (British Columbia) at 168-169, that whilst the precise origin of the right to navigate may be somewhat obscure, its crystallisation has stemmed from the practice since time immemorial of enabling the enjoyment of the freedom of the seas by treating the seas as navigable highways.
572 A native title claim to exclusive possession of, or the right to control access to, expanses of the sea or tidal waters would fracture a skeletal principle of the common law in the terms discussed by Brennan J. Although I have already concluded that such a claim, in any event, is contrary to the right of innocent passage through the territorial sea nevertheless I am in agreement with the conclusion of Olney J that the right claimed to exclusive possession of, and to control access to, the claimed area fractures the skeletal principle of the freedom of the seas and the tidal waters which has given shape and consistency from ancient times to the rights of innocent passage and to navigation.
573 As explained earlier the characterisation of a native title right or interest for the purposes of its recognition under s 223(1)(c) of the NTA is to be approached by reference to the right or interests claimed in a particular area of land or waters. The question which is to be answered is not whether that kind or type of right or interest is not to be recognised but rather whether the right claimed, if proved, is not to be recognised by the common law as to do so would fracture a "skeletal" principle of the common law or of the legal system. In the present case different answers to that question might be given to a right in general terms to a claim for exclusive possession or to control access to expanses of the sea than to a claim for the right to regulate access to a sacred site in a discrete part of the sea in the claimed area. If the right comes into practical conflict with the rights of innocent passage or of navigation it will not be recognised by the common law. Plainly, the claimant group's claim to exclusive possession or to control access to the claimed area comes into practical conflict with those rights and would not be recognised by the common law and thus does not meet the requirement for recognition in s 223(1)(c) of the NTA.
574 It may well be that some form of native title rights or interests in the sea, such as regulating rights of access to a sacred site, may also confer some rights of exclusivity. If such rights in a practical, rather than a theoretical, sense prevent or significantly impede innocent passage or navigation then the probability is that the common law would not recognise the rights. That question is to be approached by reference to whether the claim to the particular area of waters fractures a skeletal principle of the legal system. Thus, an insignificant impediment will stand in a different position to prevention of passage through a shipping channel: see generally Williams v Wilcox at 314. Such issues may have to be worked out on a case by case basis by reference, inter alia, to the practical consequences that are likely to flow from recognition by the common law, and therefore s 223(1) of the NTA, of the particular native title right claimed.
8. NATIVE TITLE TO AN EXCLUSIVE OR SEVERAL FISHERY
575 The question of whether the claim to an exclusive or several fishery fractures a skeletal principle of the common law is more difficult to answer. The respondents claimed that it plainly did and relied upon Canadian, United States and New Zealand cases to support that contention.
576 The public right to fish was regarded as a "prima facie" right subject to the creation of a several fishery by prior grant, prescription and possibly custom. In a strict legal sense the several fishery must have existed at the time of Magna Carta. However, the Crown's sovereignty (and with it the common law) was first acquired in the claimed area in 1824. If, at the date of acquisition of sovereignty, a pre-existing several fishery in the internal waters of the Northern Territory had been established in accordance with the traditional laws and customs of the indigenous people, it is plainly arguable that the common law in respect of the public right to fish might only be received in the newly colonised territory in so far as it was "applicable to their own situation and the condition of the infant colony" (Mabo at 34-35 per Brennan J) or, as "was reasonably applicable to the circumstances of the Colony" (Mabo at 79 per Deane and Gaudron JJ): see Blackstone, Commentaries on the Laws of England (first published 1765, 1979), Bk 1 Ch 4 106-108. Thus, consistently with the reasoning in Mabo and in Blackstone, there was scope for the survival of native title to a pre-existing several fishery, established in accordance with the traditional laws and customs of the indigenous people prior to the acquisition of English sovereignty over the Territory and its internal waters or upon the acquisition of Australian sovereignty over the waters. Similarly, there is scope for a several fishery in the territorial sea.
577 As explained above, a several fishery does not impede and is not inconsistent with the right to navigate or of innocent passage and, although inconsistent with the right to fish, might not fracture a skeletal principle of the legal system in the sense discussed above. Further, as a several fishery in existence at the time of the Magna Carta and established by prior usage, whether pursuant to prescription and possibly custom, is recognised by the common law it is arguable by analogy that native title to a several fishery can likewise be recognised by the common law but, more importantly, does not fracture a skeletal principle of the common law.